Francisco v. Greene

• Decision Date: 14 April 1998
• Docket Number: 978214
• Citation: 523 U.S. 371,118 S.Ct. 1352,140 L.Ed.2d 529
• Parties: Angel Francisco BREARD v. Fred W. GREENE, Warden. THE REPUBLIC OF PARAGUAY et al. v. James S. GILMORE, Governor of Virginia, et al. In re ANGEL FRANCISCO BREARD. REPUBLIC OF PARAGUAY et al. v. James GILMORE, III, Governor of Virginia, et al. (), 97-1390 (), 97-8660 () and 125, Orig. ()
• Court: U.S. Supreme Court

523 U.S. 371

118 S.Ct. 1352

140 L.Ed.2d 529

Angel Francisco BREARD

v Fred W. GREENE, Warden.

THE REPUBLIC OF PARAGUAY et al.

v. James S. GILMORE, Governor of Virginia, et al.

In re ANGEL FRANCISCO BREARD.

REPUBLIC OF PARAGUAY et al.

v. James GILMORE, III, Governor of Virginia, et al.

Nos. 97-8214 (A-732), 97-1390 (A-738), 97-8660 (A-767) and 125,

Orig. (A-771).

Supreme Court of the United States

April 14, 1998.

PER CURIAM.

Angel Francisco Breard is scheduled to be executed by the Commonwealth of Virginia this evening at 9:00 p.m. Breard, a citizen of Paraguay, came to the United States in 1986, at the age of 20. In 1992, Breard was charged with the attempted rape and capital murder of Ruth Dickie. At his trial in 1993, the State presented overwhelming evidence of guilt, including semen found on Dickie's body matching Breard's DNA profile and hairs on Dickie's body identical in all microscopic characteristics to hair samples taken from Breard. Breard chose to take the witness stand in his defense. During his testimony, Breard confessed to killing Dickie, but explained that he had only done so because of a Satanic curse placed on him by his father-in-law. Following a jury trial in the Circuit Court of Arlington County, Virginia, Breard was convicted of both charges and sentenced to death. On appeal, the Virginia Supreme Court affirmed Breard's convictions and sentences, Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994), and we denied certiorari, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994). State collateral relief was subsequently denied as well.

Breard then filed a motion for habeas relief under 28 U.S.C. §2254 in Federal District Court on August 20, 1996. In that motion, Breard argued for the first time that his conviction and sentence should be overturned because of alleged violations of the Vienna Convention on Consular Relations (Vienna Convention), April 24, 1963, [1970] 21 U.S.T. 77, T.I.A.S. No. 6820, at the time of his arrest. Specifically, Breard alleged that the Vienna Convention was violated when the arresting authorities failed to inform him that, as a foreign national, he had the right to contact the Paraguayan Consulate. The District Court rejected this claim, concluding that Breard procedurally defaulted the claim when he failed to raise it in state court and that Breard could not demonstrate cause and prejudice for this default. Breard v. Netherland, 949 F.Supp. 1255, 1266 (E.D.Va.1996). The Fourth Circuit affirmed. Breard v. Pruett, 134 F.3d 615, 620 (1998). Breard has petitioned this Court for a writ of certiorari.

In September 1996, the Republic of Paraguay, the Ambassador of Paraguay to the United States, and the Consul General of Paraguay to the United States (collectively Paraguay) brought suit in Federal District Court against certain Virginia officials, alleging that their separate rights under the Vienna Convention had been violated by the Commonwealth's failure to inform Breard of his rights under the treaty and to inform the Paraguayan consulate of Breard's arrest, conviction, and sentence. In addition, the Consul General asserted a parallel claim under 42 U.S.C. §1983, alleging a denial of his rights under the Vienna Convention. The District Court concluded that it lacked subject-matter jurisdiction over these suits because Paraguay was not alleging a "continuing violation of federal law'' and therefore could not bring its claims within the exception to Eleventh Amendment immunity established in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Republic of Paraguay v. Allen, 949 F.Supp. 1269, 1272-1273 (E.D.Va.1996). The Fourth Circuit affirmed on Eleventh Amendment grounds. Republic of Paraguay v. Allen, 134 F.3d 622 (1998). Paraguay has also petitioned this Court for a writ of certiorari.

On April 3, 1998, nearly five years after Breard's conviction became final, the Republic of Paraguay instituted proceedings against the United States in the International Court of Justice (ICJ), alleging that the United States violated the Vienna Convention at the time of Breard's arrest. On April 9, the ICJ noted jurisdiction and issued an order requesting that the United States "take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings . . . . '' The ICJ set a briefing schedule for this matter, with oral argument likely to be held this November. Breard then filed a petition for an original writ of habeas corpus and a stay application in this Court in order to "enforce'' the ICJ's order. Paraguay filed a motion for leave to file a bill of complaint in this Court, citing this Court's original jurisdiction over cases "affecting Ambassadors . . . and Consuls.'' U.S. Const., Art. III, §2.

It is clear that Breard procedurally defaulted his claim, if any, under the Vienna Convention by failing to raise that claim in the state courts. Nevertheless, in their petitions for certiorari, both Breard and Paraguay contend that Breard's Vienna Convention claim may be heard in federal court because the Convention is the "supreme law of the land'' and thus trumps the procedural default doctrine. Pet. for Cert. in No. 97-8214, pp. 15-18; Pet. for Cert. in No. 97-1390, p. 14, n. 8. This argument is plainly incorrect for two reasons.

First, while we should give respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such, it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State. See Sun Oil Co. v. Wortman, 486 U.S. 717, 723, 108 S.Ct. 2117, 2122, 100 L.Ed.2d 743 (1988); Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 2108-2109, 100 L.Ed.2d 722 (1988); Societe Nationale Industrielle Aerospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 539, 107 S.Ct. 2542, 2553, 96 L.Ed.2d 461 (1987). This proposition is embodied in the Vienna Convention itself, which provides that the rights expressed in the Convention "shall be exercised in conformity with the laws and regulations of the receiving State,'' provided that "said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended.'' Article 36(2), [1970] 21 U.S. T., at 101. It is the rule in this country that assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Claims not so raised are considered defaulted. Ibid. By not asserting his Vienna Convention claim in state court, Breard failed to exercise his rights under the Vienna Convention in conformity with the laws of the United States and the Commonwealth of Virginia. Having failed to do so, he cannot raise a claim of violation of those rights now on federal habeas review.

Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held "that an Act of Congress . . . is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.'' Reid v. Covert, 354 U.S. 1, 18, 77 S.Ct. 1222, 1231, 1 L.Ed.2d 1148 (1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190, 194, 8 S.Ct. 456, 458, 124 U.S. 190 (1888) (holding that if a treaty and a federal statute conflict, "the one last in date will control the other''). The Vienna Convention-which arguably confers on an individual the right to consular assistance following arrest-has continuously been in effect since 1969. But in 1996, before Breard filed his habeas petition raising claims under the Vienna Convention, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which provides that a habeas petitioner alleging that he is held in violation of "treaties of the United States'' will, as a general rule, not be afforded an evidentiary hearing if he "has failed to develop the factual basis of [the] claim in State court proceedings.'' 28 U.S.C.A. §2254(a), (e)(2) (Supp. 1998). Breard's ability to obtain relief based on violations of the Vienna Convention is subject to this subsequently-enacted rule, just as any claim arising under the United States Constitution would be. This rule prevents Breard from establishing that the violation of his Vienna Convention rights prejudiced him. Without a hearing, Breard cannot establish how the Consul would have advised him, how the advice of his attorneys differed from the advice the Consul could have provided, and what factors he considered in electing to reject the plea bargain that the State offered him. That limitation, Breard also argues, is not justified because his Vienna Convention claims were so novel that he could not have discovered them any earlier. Assuming that were true, such novel claims would be barred on habeas review under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Even were Breard's Vienna Convention claim properly raised and proven, it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). In this case, no such showing could even arguably be made. Breard decided not to plead guilty and to testify at his own trial contrary to the advice of his attorneys, who were likely far better able to explain the United States legal system to him than any consular official would have been. Breard's...