Cardenas v. Stephens

• Decision Date: 14 April 2016
• Docket Number: No. 15–70025.,15–70025.
• Citation: 820 F.3d 197
• Parties: Ruben Ramirez CARDENAS, Petitioner–Appellant, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

820 F.3d 197

Ruben Ramirez CARDENAS, Petitioner–Appellant
v.
William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent–Appellee.

No. 15–70025.

United States Court of Appeals, Fifth Circuit.

April 14, 2016.

820 F.3d 198

Maurie Levin, Philadelphia, PA, for Petitioner–Appellant.

Ellen Stewart–Klein, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Respondent–Appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ruben Ramirez Cardenas¹ applies for a certificate of appealability (“COA”) to appeal the denial of his second federal petition for writ of habeas corpus. He claims that he is entitled to relief from his death sentence because Texas law enforcement officers did not inform him of his rights under the Vienna Convention on Consular Relations (“VCCR”) after his 1997 arrest. Because no reasonable jurist could find that the claim is meritorious, we deny a COA.

I.

The facts and procedural history are recounted in exhaustive detail in several opinions describing Cardenas's long journey through the state and federal courts.² In 1997, Cardenas broke into his fifteen-year-old cousin Mayra Laguna's bedroom, taped her mouth shut, tied her hands, and forced her into a car. He drove her to a

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secluded area and raped her, then beat her to death and left her body in a ditch. After police interrogation, Cardenas confessed. The officers did not inform him of his rights as a Mexican national under the VCCR.

Cardenas was convicted of capital murder and sentenced to death. The conviction and sentence were affirmed. Cardenas, 30 S.W.3d 384 at 393–94. Cardenas's initial state habeas petition was denied. See Cardenas v. Thaler, 651 F.3d at 447 (citing Ex parte Cardenas, No. 48,728–01 (Tex.Crim.App. May 16, 2001) (per curiam) (unpublished)).

Cardenas filed a federal habeas petition contending that trial counsel's failure to raise the VCCR issue rendered his performance constitutionally inadequate. The petition was denied, and the district court denied a COA. While Cardenas's appeal from that denial was pending, the International Court of Justice (“ICJ”) issued judgment in Avena & Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31) (“Avena ”), which, as our court has described it, addressed

a proceeding initiated by the Government of Mexico against the United States alleging that the United States had violated the consular notification provisions of the Vienna Convention in the case of Cardenas and 53 other Mexican nationals facing the death penalty. The ICJ concluded in Avena that the United States had breached its obligations under Article 36, paragraph 1(b), of the Vienna Convention by failing to inform Cardenas of his rights under this paragraph and by failing to notify the Mexican consular post of Cardenas' detention. Avena, paras. 106(1), (2). The ICJ concluded that “the United States also violated the obligation incumbent upon it under Article 36, paragraph 1(a), of the Vienna Convention to enable Mexican consular officers to communicate with and have access to their nationals, as well as its obligation under paragraph 1(c) of that Article regarding the right of consular officers to visit their detained nationals.” Id. at para. 106(3). However, the ICJ determined that in Cardenas' case, the United States did not breach its obligation under paragraph 1(c) to enable Mexican consular officers to arrange for legal representation of Cardenas. Id. at para. 106(4).

The ICJ thus held that the Mexican nationals whose rights under Article 36 of the Vienna Convention were violated were entitled to full judicial review of their capital murder convictions and death sentences. Id. at para. 138. The ICJ mandated that the “review and reconsideration” of the case be “effective” and “ ‘take account of the violation of the rights set forth in [the Vienna] Convention’ and guarantee that the violation and the possible prejudice caused by that violation be fully examined.” Id. (emphasis added). The ICJ, however, “left to the United States the choice of means as to how review and reconsideration should be achieved, especially in light of the procedural default rules.... [R]econsideration should occur within the overall judicial proceedings relating to the individual defendant concerned.” Id. at para. 141.

Cardenas v. Dretke, 405 F.3d 244, 252 (5th Cir.2005) (footnote omitted) (alteration in original).

This court determined that, Avena notwithstanding, the VCCR claim was both procedurally defaulted and meritless. Id. at 252–54. On the merits, we first held that the VCCR creates no judicially enforceable individual rights. Id. at 252–53. And second, we held that, even if Cardenas's rights were violated in some judicially redressable fashion, he was not

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prejudiced. Id. at 253–54. We further concluded that reasonable jurists could not debate those determinations, so we declined to issue a COA. Id. at 254.

In the wake of Avena (but after briefing in the aforementioned appeal), the President issued a memorandum (the “Presidential Memorandum”) purporting to direct state courts to comply fully with Avena 's requirement that the covered individuals receive full reconsideration of their cases without regard to ordinary state-law procedural bars. Cardenas filed a new state habeas petition, seeking relief on the basis of Avena and the Presidential Memorandum. That petition was dismissed as an abuse of the writ. Ex parte Cardenas, No. WR–17,425–05, 2007 WL 678628, at *1 (Tex.Crim.App. Mar. 7, 2007).

Cardenas then filed the federal habeas petition now at issue. This court stayed that proceeding pending the Supreme Court's decision in Medellin v. Texas. That Court held that, even though the VCCR and Avena had created binding international-law obligations on the federal government, neither they nor the Presidential Memorandum created any binding domestic obligation on the states. See Medellin v. Texas, 552 U.S. 491, 522–23, 532, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). After Medellin, the Secretary of State and the Attorney General wrote the Texas governor asking for his help in implementing American treaty obligations under the VCCR and Avena. The governor replied that Texas would ask federal habeas courts to review prejudice claims on the merits for any person who had not yet received a prejudice determination on his VCCR claim.

In September 2008, the district court dismissed Cardenas's petition for want of jurisdiction because he had not received permission to file a successive petition; the district court never ruled on whether a COA should issue. Between the dismissal and Cardenas's appeal of that order, this court issued Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir.2009). There we held that a second habeas petition raising Avena and VCCR claims in conjunction with the Presidential Memorandum was not successive within the meaning of the Anti–Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) if the initial petition was denied before the Presidential Memorandum was issued. Id. at 223–24. In Leal Garcia we also concluded that Medellin rendered Leal Garcia's VCCR claim meritless because neither the VCCR nor Avena imposed binding obligations on the states. Id. at 224.

On Cardenas's appeal, we remanded on the narrow question whether a COA should issue, without addressing the impact of Leal Garcia. Cardenas, 651 F.3d at 447. On remand, Cardenas moved for relief from the judgment of dismissal under Federal Rule of Civil Procedure 60(b). He noted that Leal Garcia had clarified that his second habeas petition was not successive within the meaning of AEDPA, so the judgment of dismissal on that basis was error. The district court granted the motion and allowed Cardenas to file an amended habeas petition.

That amended petition maintained that Cardenas's rights under the VCCR had been violated, that he suffered prejudice, and that the combination of the VCCR, Avena, the Presidential Memorandum, the governor's letter, an opinion of another circuit, and decisions of various foreign courts entitled him to relief from his sentence. The district court denied the petition. It held that Cardenas's VCCR claim was procedurally defaulted, opining that the Texas Court of Criminal Appeals' denial of the second state habeas motion rested on an independent and adequate state bar

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to relief. The court further decided, in the alternative, that the VCCR claim was meritless. The court reasoned that M...