| () 100 U.S. 1
[ Ginsburg ]
[ OConnor ]
[ Souter ]
[ Breyer ]
JOSE ERNESTO MEDELLIN, PETITIONER v.
DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
ON WRIT OF CERTIORARI TO THE UNITED STATES
APPEALS FOR THE FIFTH CIRCUIT
[May 23, 2005]
Justice Ginsburg, with whom Justice Scalia joins as to Part II, concurring.
Petitioner José Medellín, a Mexican national, was arrested, detained, tried, convicted, and sentenced to death in Texas without being informed of rights accorded him under the Vienna Convention on Consular Relations, Apr. 24, 1963,  21 U.S. T. 77, 100101, T. I. A. S. No. 6820. The Convention called for prompt notice of Medellíns arrest to the Mexican consul. Medellín could then seek consular advice and assistance.
After unsuccessful challenges to his conviction and sentence, first in state court, later in federal court, Medellín sought this Courts review. His petition for certiorari, which this Court granted, rests primarily on a judgment rendered by the International Court of Justice (ICJ) on March 31, 2004: Case Concerning Avena and other Mexican Nationals (Mex. v. U.S.), 2004 I. C. J. No. 128 (Avena). Medellíns petition also draws support from an ICJ judgment of the same order earlier rendered against the United States: LaGrand Case (F. R. G. v. U.S.), 2001 I. C. J. 466 (Judgment of June 27) (LaGrand). The ICJ held in Avena that the failure to accord Vienna Convention rights to Medellín and other similarly situated Mexican nationals necessitated review and reconsideration of their convictions and sentences by United States courts. Further, the ICJ specified, procedural default doctrines could not be invoked to bar the required review and reconsideration. Medellín sought certiorari on two questions: (1) Are courts in the United States bound by the Avena judgment; (2) Should courts in the United States give effect to the Avena and LaGrand judgments in the interest of judicial comity and uniform treaty interpretation. Brief for Petitioner i.
On February 28, 2005, President Bush announced:
[T]he United States will discharge its international obligations under the decision of the International Court of Justice in [Avena], by having State courts give effect to the decision in accordance with general principles of comity. Memorandum for the Attorney General (Feb. 28, 2005), App. 2 to Brief for United States as Amicus Curiae 9a (hereinafter Presidents Memorandum).
Medellín thereupon moved to stay further proceedings in this Court pending his pursuit of remedies in Texas court, as contemplated by the Presidents Memorandum. I would grant Medellíns stay motion as the most conservative among courses the Court might take. That least change measure, however, has not garnered majority support.
The Court is divided between two responses to Medellíns petition in light of the Presidents Memorandum: (1) remand to the Court of Appeals for the Fifth Circuit for initial rulings on a host of difficult issues, post, at 13, 19 (OConnor, J., dissenting), recognizing that courts prerogative to hold the case in abeyance pending Medellíns pursuit of relief in state court, post, at 20; or (2) dismiss the writ, recognizing that in all likelihood this Court would be positioned to review the Texas courts treatment of the Presidents [M]emorandum and [the Avena judgment] unencumbered by the [threshold] issues that arise from the procedural posture of this action, ante, at 34, n. 1. The former course would invite the Fifth Circuit to conduct proceedings rival to those recently launched in state court, or to put the case on hold, a cautionary measure this Court itself is unwilling take. The latter would leave nothing pending here, but would enable this Court ultimately to resolve, clearly and cleanly, the controlling effect of the ICJs Avena judgment, shorn of procedural hindrances that pervade the instant action.
For the reasons stated below, I join the Courts election to dismiss the writ as improvidently granted in light of the Presidents Memorandum and the state-court proceeding instituted in accordance with that Memorandum. I do so recognizing that this Court would have jurisdiction to review the final judgment in the Texas proceedings, and at that time, to rule definitively on the Nations obligation under the judgment of the ICJ if that should prove necessary. Post, at 2 (Souter, J., dissenting).
The principal dissent would return the
case to the Fifth Circuit leaving unresolved a bewildering
array of questions. See post, at 13 (opinion of
OConnor, J.) (describing issues not touched by this Court
as difficult). Among inquiries left open for
further proceedings: Is a certificate of appealability
(COA) available when the applicant is not complaining of
the denial of a constitutional right? Post,
at 67 (OConnor, J., dissenting) (internal quotation
marks omitted); cf. ante, at 56. What directions
must a lower court take from Teague v. Lane, 489 U.S. 288 (1989),
and perhaps from Reed v. Farley, 512 U.S. 339 (1994),
and Hill v. United States, 368 U.S. 424 (1962)?
Post, at 1011 (OConnor, J., dissenting); cf.
ante, at 4. Is it open to a lower court to resolve the
conflict between Avena and [this Courts]
decision in Breard v. Greene, 523 U.S. 371, 376
(1998) (per curiam)? Post, at 13
(OConnor, J., dissenting).1 Has Medellín exhausted state avenues
for relief, see ante, at 6; Rhines v.
Weber, ante, p. ___; Rose v. Lundy,
455 U.S. 509,
518520 (1982); cf. post, at 1112, n. 1
(OConnor, J., dissenting), given that the Avena
judgment and the Presidents response to it postdate the
rejection of Medellíns pleas in Texas proceedings?
While contentious preliminary issues clog final determination
of Medellíns claim for federal habeas relief based
on the ICJs judgments, action by the Texas courts could
render the entire array of questions moot. See post, at
3 (Souter, J., dissenting) ([A]ction in the Texas courts
move any occasion to proceed under the federal habeas petition.).
Further, at odds with the Presidents determination to give effect to the [Avena] decision in accordance with general principles of comity, Presidents Memorandum, and in conspicuous conflict with the law of judgments, see Restatement (Second) of Conflict of Laws §98 (1988); Restatement (Third) of Foreign Relations Law of the United States §481 (1986); Restatement (Second) of Judgments §17 (1980), the principal dissent would instruct the Court of Appeals to hol[d] up the Avena interpretation of the [Vienna Convention] against the domestic courts own conclusions. Post, at 13 (opinion of OConnor, J.). But cf. ALI, Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute §2, Comment d, p. 38 (2005) ([A] judgment entitled to recognition will not be reexamined on the merits by a second court.). It is the long-recognized general rule that, when a judgment binds or is respected as a matter of comity, a lets see if we agree approach is out of order. See Hilton v. Guyot, 159 U.S. 113, 202203 (1895) (where comity of this nation calls for recognition of a judgment rendered abroad, the merits of the case should not be tried afresh upon the mere assertion that the judgment was erroneous in law or in fact); see also Restatement (Second) of Conflict of Laws §106 (1969) (A judgment will be recognized and enforced in other states even though an error of fact or of law was made in the proceedings before judgment . . . .); id., §106, Comment a (Th[is] rule is applicable to judgments rendered in foreign nations . . . .); Reese, The Status in This Country of Judgments Rendered Abroad, 50 Colum. L. Rev. 783, 789 (1950) ([Foreign] judgments will not be denied effect merely because the original court made an error either of fact or of law.).2
Troubling as well, the principal dissent provides no clear instructions to the Court of Appeals on which of the several questions the dissenters would remit to that court comes first, which others should be part of the COA determination, post, at 11 (opinion of OConnor, J.), and which are meet for adjudication only if, as, or when a COA is granted. The participation of a federal court in the fray at this point, moreover, risks disturbance of, or collision with, the proceeding Medellín has commenced in Texas. The principal dissent appears ultimately to acknowledge that concern by observing that the Fifth Circuit might hold the case on its docket until Medellíns successive petition was resolved in state court. Post, at 20 (opinion of OConnor, J.); see also post, at 3 (Souter, J., dissenting); post, at 3 (Breyer, J., dissenting). But given this Courts unwillingness to put the case on hold here, one might ask what justifies parking the case, instead, in the Court of Appeals.
The per curiam opinion which I join rests on two complementary grounds. First, the Texas proceeding may provide Medellín with the very reconsideration of his Vienna Convention claim that he now seeks in the present proceeding. Ante, at 1. Second, the instant proceeding comes to us freighted with formidable threshold issues, ante, at 46, that deter definitive answers to the questions presented in the petition for certiorari.
Petitioners recent filing in the Texas Court of Criminal Appeals raises two discrete bases for relief that were not previously available for presentation to a state forum: the ICJs Avena judgment and the Presidents Memorandum. See Subsequent Application for Post-Conviction Writ of Habeas Corpus in Ex Parte Medellín, Trial Cause Nos. 67,5429 and 67,5430 (Tex. Crim. App.), p. 13 (filed Mar. 24, 2005). (President Bushs determination and the Avena Judgment constitute two separate sources of binding federal law.). The Texas courts are now positioned immediately to adjudicate these cleanly presented issues in the first instance. In turn, it will be this Courts responsibility, at the proper time and if need be, to provide the ultimate answers.
1. See Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (cautioning lower courts against disturbing this Courts decisions). But cf. post, at 2 (Souter, J., dissenting).
2. The principal dissent maintains that the second question on which we granted certiorari asks whether and what weight [short of binding effect] American courts should give to Avena, in the course of independently interpreting the treaty, perhaps for sake of uniform treaty interpretation. Post, at 13 (opinion of OConnor, J.); see post, at 1314, and n. 2 (same). Significantly, Medellín chose not to break out for discrete review in this Court questions underlying and subsumed in the ICJs judgments in Avena, 2004 I. C. J. No. 128 (Judgment of Mar. 31), and LaGrand, 2001 I. C. J. 466 (Judgment of June 27), i.e., whether the Vienna Convention creates a judicially enforceable individual right and whether it sometimes requires state procedural default rules to be set aside so that the treaty can be given full effect, post, at 1 (OConnor, J., dissenting). Nor does Medellíns invocation of international comity, Brief for Petitioner 45, or his plea for uniform treaty interpretation, id., at 48, seek this Courts independent interpretation of the Convention. Instead, he urges that comity is accorded, and uniformity achieved, by recognizing as authoritative the ICJs interpretation as elaborated in successive judgments against the United States. See id., at 49 (Given its consent to the ICJs jurisdiction, the United States should treat as authoritative any interpretation or application of the Convention by that court.); see also Reply Brief 16 (observing that the United States agreed that the ICJ would have final authority to resolve disputes over the treatys interpretation and application (emphasis added)).