Flores v. Johnson

• Decision Date: 20 April 2000
• Docket Number: No. 99-40064,99-40064
• Parties: (5th Cir. 2000) MIGUEL ANGEL FLORES, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 456

210 F.3d 456 (5th Cir. 2000)

MIGUEL ANGEL FLORES, Petitioner-Appellant, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellee.

No. 99-40064

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 20, 2000

Appeal from the United States District Court For the Eastern District of Texas

Before HIGGINBOTHAM, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:

Miguel Angel Flores seeks habeas relief on two grounds.¹ First, he urges that he did not receive effective assistance of counsel during the guilt and penalty phases of his trial. Second, he urges that his conviction should be reversed for failure of the state to advise Flores of his right to inform Mexican consular officials of his arrest and detention and to be informed of his rights under the Vienna Convention on Consular Relations, April 23, 1963, TIAS 6820, 21 U.S.T. 77, 596 UNTS 261. The district court denied relief.

I

We reject the claims of ineffective assistance of counsel for essentially the reasons found by the district court.

II

The United States Senate ratified the Vienna Convention on December 24, 1969. At that time, the provisions of the Convention became binding on the individual states. U.S. Const. arts. VI, cl. 2; art. II, 2, cl. 2. The Vienna Convention provides:

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his right under this sub-paragraph.

21 U.S.T. 78, Apr. 23, 1963, art. 36(b) (emphasis added).

On his arrest and interrogation, Flores was not advised of his rights under the Convention. It appears to be undisputed that officials were aware of his citizenship. Flores urges that a failure to abide by the terms of the Convention is structural error and hence he need not demonstrate that the violation prejudiced his right to a fair trial; that there is no harmless error analysis for structural defects. Alternatively, Flores urges that the "violation" of the Convention "seriously harmed" him. The argument continues that while in custody, Flores was "compelled to make four tape recorded statements" without an attorney, that had the consulate been informed of his rights, the consulate would have obtained a Spanish speaking attorney for him. The State replies that Flores has lived his life in the United States, was educated in its public schools, and his first language is English. Further, that he did not want assistance.

At the outset we must confront the question of whether the Vienna Convention conferred rights enforceable by individuals. Here Flores points to our decision in Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996). In Faulder we observed that there had been a violation of Faulder's Vienna Convention rights. However, the panel found the omission to be "harmless error," which did not merit reversal:

[T]he district court correctly concluded that Faulder or Faulder's attorney had access to all of the information that could have been obtained by the Canadian government. While we in no way approve of Texas' failure to advise Faulder, the evidence that would have been obtained by the Canadian authorities is merely the same or cumulative of evidence defense counsel had or could have obtained.

We do not read our opinion in Faulder as recognizing a personal right under the Convention. Rather, the panel dispatched the claim with its conclusion that any violation was harmless. Any negative implication inherent in rejecting the claim as harmless lacks sufficient force to support a contention that the panel held that the Convention created rights enforceable by individuals. While we conclude that Faulder has not decided the question, we do not reach its merits because at best Flores's assertion is Teague barred.

The Supreme Court in Breard v. Greene, 523 U.S. 371 118 S. Ct. 1352, 1355, 140

L.Ed.2d 529 (1998), noted that "[t]he Vienna [C]onvention . . . arguably confers on an individual the right to consular assistance following arrest." Thus, even the Court admits the possibility that the Vienna Convention does not confer such rights, and therefore, such a finding would create a new exclusionary rule, which is prohibited in a collateral habeas attack because of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989). See Breard, 118 S. Ct. at 1354-55 (holding that the Vienna Convention must be applied "in conformity with the laws and regulations" of the United States, including the rules for federal habeas relief).

AFFIRMED.

EMILIO M. GARZA, Circuit Judge, specially concurring.

EMILIO M. GARZA, Circuit Judge, specially concurring.

As the majority opinion notes, the district court carefully considered, and denied, Flores's ineffective assistance of counsel claim. I do not disagree with the district court's thoughtful and well-reasoned opinion; it is an inevitable consequence of the relevant precedent in this area of the law, and we could add little its to fine analysis. However, I write separately to raise questions about the authority on which that opinion is based, which appears inconsistent with itself and, possibly, with the dictates of the Constitution.

When one considers the conduct of Flores's trial attorney, Gene Storrs, it takes little inquiry to determine that this case is troubling. Based on overwhelming evidence, Mr. Storr's chances of convincing the jury of Flores's innocence were minimal. Storr's only chance of successfully defending Flores was to limit the applicability of the death penalty. In this regard, the best mitigating evidence Storr had was Flores's complete lack of a criminal, juvenile, or psychiatric record, evidence which directly mitigated against Flores's alleged "future dangerousness." Inexplicably, Storr failed to elicit such evidence; in effect, he failed to elicit any evidence in mitigation. But see infra note 8 (describing Storr's cross-examination of Dr. Clay Griffith).

In and of itself, Storr's failure in this regard may not have been as devastating but for Dr. Clay Griffith's testimony, which condemned Flores to death based on an "objective" evaluation. Before testifying unequivocally that Flores would be a "future danger," Dr. Griffith never examined Flores, nor did he make his evaluation based on psychological records or psychological testimony. Rather, he sat at trial, and based on the facts of the offense and Flores's conduct during the trial (Flores did not testify), Dr. Griffith came to an "expert" opinion on Flores's future dangerousness.

Such testimony lacking objective scientific testing or personal examination defies scientific rigor and cannot be described as expert testimony. It is simply subjective testimony without any scientific validity by one who holds a medical degree. Given the paucity, indeed the complete lack, of mitigating evidence presented in this case, Dr. Griffith's testimony virtually compelled the jury's answer to the second special issue. ¹ In short, the truly troubling facet of this case is the sole evidence upon which the jury found Flores to be a future danger: the testimony of a doctor who had never met the defendant.

I.

While permitted by the Constitution, see Gregg v. Georgia, 428 U.S. 153, 177, 96 S. Ct. 2909, 2927, 49 L. Ed. 2d 859 (1976) (plurality opinion) ("It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers."), ² death is a sentence which differs from all other penalties in kind rather than degree. See Satterwhite v. Texas, 486 U.S. 249, 262, 108 S. Ct. 1792, 1801, 100 L. Ed. 2d 284 (1988) ("The awesome severity of a sentence of death makes it qualitatively different from all other sanctions."). Death is the most final, and most severe, of punishments. See Gregg, 428 U.S. at 187, 96 S. Ct. at 2931, ("There is no question that death as a punishment is unique in its severity and irrevocability.").

Accordingly, while the Eighth Amendment allows the death penalty as an appropriate response to especially egregious crimes, it also strictly regulates the procedures by which death sentences are imposed and reviewed. See Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2957, 57 L. Ed. 2d 973 ("[T]he qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed."); Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 2639-40, 86 L. Ed. 2d 231 (1985) (asserting that the need for reliability in death sentences "requires a correspondingly greater degree of scrutiny of the capital sentencing determination"). Sentencing procedures for capital crimes, far more so than for non-capital crimes, must be created and enforced in a way that ensures "that the punishment will [not] be inflicted in an arbitrary and capricious manner." Gregg, 426 U.S. at 189, 96 S. Ct. at 2932.

Supreme Court jurisprudence guiding consideration of death penalty cases has produced two cardinal principles. First, the "eligibility" phase of a state's capital sentencing scheme--the phase where a state legislature decides which particular homicides could, given sufficiently egregious circumstances, warrant the death penalty--must "provide a meaningful basis for distinguishing the few cases in which the penalty is imposed from the many cases in which it is not." Godfrey v. Georgia, 446 U.S. 420, 427, 100 S. Ct. 1759, 1764, 64 L. Ed. 2d 398, (1980) (citations and internal quotation marks omitted); see also Arave v. Creech, 507 U.S. 463, 474, 113 S. Ct. 1534, 1542, 123 L. Ed. 2d...