OCTOBER TERM, 1997
Syllabus
BREARDv.GREENE, WARDEN
ON APPLICATION FOR STAY AND ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 97-8214 (A-732). Decided April 14, 1998*
Petitioner Breard, a Paraguayan citizen, was convicted and
sentenced to death in Virginia state court. He filed a motion for
habeas relief in Federal District Court, arguing for the first time
that his convictions and sentences should be overturned because
Virginia authorities violated the Vienna Convention by failing to
inform him that, as a foreign national, he had a right to contact
the Paraguayan Consulate. The court held, however, that he
procedurally defaulted his claim when he failed to raise it in
state court and that he could not demonstrate cause and prejudice
for this default. The Fourth Circuit affirmed. The Republic of
Paraguay and its officials also brought suit in the District Court,
alleging that their separate rights under the Convention had been
violated by Virginia's failure to inform Breard of his Convention
rights and to inform the Paraguayan Consulate of his arrest,
conviction, and sentence. The Paraguayan Consul General also
asserted a 42 U. S. C. § 1983 claim. The court concluded that it
lacked subject-matter jurisdiction because Paraguay was not
alleging a continuing violation of federal law and therefore could
not bring its claims within the Eleventh Amendment immunity
exception. The Fourth Circuit affirmed. Paraguay also instituted
proceedings against the United States in the International Court of
Justice (ICJ), alleging that the United States violated the
Convention at Breard's arrest. The ICJ issued an order requesting
the United States to "take all measures at its disposal to ensure
that ... Breard is not executed pending the final decision in these
proceedings." Breard then filed a petition for an original writ of
habeas corpus and a
*Together with No. 97-1390 (A-738),
Republic of Paraguay et
al. v.
Gilmore, Governor of Virginia, et al., on application for
stay or injunction and on petition for writ of certiorari to the
United States Court of Appeals for the Fourth Circuit, No. 97-8660
(A-767),
In re Breard, on application for stay and on
petition for writ of habeas corpus, No. 125, Orig. (A-771),
Republic of Paraguay et al. v.
Gilmore, Governor of
Virginia, et al., on application for temporary restraining
order or preliminary injunction and on motion for leave to file a
bill of complaint.
372
Per Curiam
stay application in this Court to "enforce" the ICJ's order, and
Paraguay filed a motion for leave to file an original bill of
complaint.
Held: Breard is not entitled to relief on any theory
offered. He procedurally defaulted his Vienna Convention claim, if
any, by failing to raise it in the state courts. The argument that
the claim may be heard in federal court because the Convention is
the "supreme law of the land" and thus trumps the procedural
default doctrine is plainly incorrect for two reasons. First, a
well-established rule of international law, embodied in the
Convention itself, specifies 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. In this
country, 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. Second,
Breard's ability to obtain relief based on Convention violations is
subject to the subsequently enacted Antiterrorism and Effective
Death Penalty Act, which denies a habeas petitioner alleging that
he is held in violation of treaties an evidentiary hearing if he
has failed to develop the claim's factual basis in statecourt
proceedings. See,
e. g., Reid v.
Covert, 354 U. S. 1, 18. As for
Paraguay's suits, neither the Convention's text nor its history
clearly provides a foreign nation a private right of action in
United States' courts to set aside a criminal conviction and
sentence for violating consular notification provisions. The
Eleventh Amendment's "fundamental principle" that "the States, in
the absence of consent, are immune from suits brought against them
... by a foreign State,"
Principality of Monaco v.
Mississippi, 292 U. S. 313, 329-330,
provides a separate reason why Paraguay's suit may not proceed. The
Consul General's § 1983 suit is not cognizable because Paraguay,
for whose benefit the suit is brought, is not a "person within the
jurisdiction" of the United States authorized to bring suit under
that section. See,
e. g., Moor v.
County of Alameda,
411 U. S. 693,
699. It is the Virginia Governor's prerogative to stay Breard's
execution pending the ICJ's decision; nothing in this Court's
existing case law allows it to make that decision for him.
Habeas corpus, motion for leave to file bill of complaint,
certiorari, and stay applications denied. Reported below: No.
97-8214,
134 F.3d
615, and No. 97-1390,
134 F.3d
622.
PER CURIAM.
Angel Francisco Breard is scheduled to be executed by the
Commonwealth of Virginia this evening at 9 p.m. Breard, a citizen
of Paraguay, came to the United States in 1986, at the
373
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 (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 convictions and sentences
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. 1. 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 (ED 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.
374
Per Curiam
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, convictions, and sentences. In addition, the
Consul General asserted a parallel claim under Rev. Stat. § 1979,
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 (1908).
Republic of Paraguay v.
Allen, 949 F. Supp. 1269,
1272-1273 (ED 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 convictions
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
375
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
(1988); Volkswagenwerk Aktiengesellschaft v.
Schlunk,
486 U. S. 694, 700 (1988);
Societe Nationale Industrielle
Aerospatiale v.
United States Dist. Court for Southern Dist.
of Iowa, 482 U.
S. 522, 539 (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 (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
376
Per Curiam
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 (1957) (plurality opinion); see also
Whitney v.
Robertson, 124
U. S. 190, 194 (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. §§ 2254(a), (e)(2) (1994 ed., Supp. IV).
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 ar-
377
gues, 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 (1989).
Even were Breard's Vienna Convention claim properly raised and
proved, 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 (1991). In
this action, 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 asserted prejudice-that
had the Vienna Convention been followed, he would have accepted the
State's offer to forgo the death penalty in return for a plea of
guiltyis far more speculative than the claims of prejudice courts
routinely reject in those cases where an inmate alleges that his
plea of guilty was infected by attorney error. See,
e. g.,
Hill v.
Lockhart, 474 U. S. 52, 59
(1985).
As for Paraguay's suits (both the original action and the case
coming to us on petition for certiorari), neither the text nor the
history of the Vienna Convention clearly provides a foreign nation
a private right of action in United States courts to set aside a
criminal conviction and sentence for violation of consular
notification provisions. The Eleventh Amendment provides a separate
reason why Paraguay's suit might not succeed. That Amendment's
"fundamental principle" that "the States, in the absence of
consent, are immune from suits brought against them ... by a
foreign State" was enunciated in
Principality of Monaco v.
Mississippi, 292 U. S. 313, 329-330
(1934). Though Paraguay claims that its suit is within an exemption
dealing with continuing consequences of past violations of federal
rights, see
Milliken v.
378
Per Curiam
Bradley, 433 U. S. 267 (1977), we
do not agree. The failure to notify the Paraguayan Consul occurred
long ago and has no continuing effect. The causal link present in
Milliken is absent in this suit.
Insofar as the Consul General seeks to base his claims on §
1983, his suit is not cognizable. Section 1983 provides a cause of
action to any "person within the jurisdiction" of the United States
for the deprivation "of any rights, privileges, or immunities
secured by the Constitution and laws." As an initial matter, it is
clear that Paraguay is not authorized to bring suit under § 1983.
Paraguay is not a "person" as that term is used in § 1983. See
Moor v.
County of Alameda, 411 U. S. 693, 699
(1973);
South Carolina v.
Katzenbach, 383 U. S. 301, 323-324
(1966); cf.
Will v.
Michigan Dept. of State Police,
491 U. S. 58
(1989). Nor is Paraguay "within the jurisdiction" of the United
States. And since the Consul General is acting only in his official
capacity, he has no greater ability to proceed under § 1983 than
does the country he represents. Any rights that the Consul General
might have by virtue of the Vienna Convention exist for the benefit
of Paraguay, not for him as an individual.
It is unfortunate that this matter comes before us while
proceedings are pending before the ICJ that might have been brought
to that court earlier. Nonetheless, this Court must decide
questions presented to it on the basis of law. The Executive
Branch, on the other hand, in exercising its authority over foreign
relations may, and in this case did, utilize diplomatic discussion
with Paraguay. Last night the Secretary of State sent a letter to
the Governor of Virginia requesting that he stay Breard's
execution. If the Governor wishes to wait for the decision of the
ICJ, that is his prerogative. But nothing in our existing case law
allows us to make that choice for him.
For the foregoing reasons, we deny the petition for an original
writ of habeas corpus, the motion for leave to file a
379
bill of complaint, the petitions for certiorari, and the
accompanying stay applications filed by Breard and Paraguay.
Statement of JUSTICE SOUTER.
I agree with the Court that the lack of any reasonably arguable
causal connection between the alleged treaty violations and
Breard's convictions and sentences disentitle him to relief on any
theory offered. Moreover, I have substantial doubts that either
Paraguay or any official acting for it is a "person" within the
meaning of 42 U. S. C. § 1983 and that the Vienna Convention is
enforceable in any judicial proceeding now underway. For these
reasons, I believe the stay requests should be denied, with the
result that Paraguay's claims will be mooted. Accordingly, I have
voted to deny Paraguay's and Breard's respective petitions for
certiorari (Nos. 97-1390 and 97-8214), Paraguay's motion for leave
to file a bill of complaint (No. 125, Orig.), Breard's application
for an original writ of habeas corpus (No. 97-8660), and the
associated requests for a stay of execution.
JUSTICE STEVENS, dissenting.
The Court of Appeals' decision denying petitioner Breard's first
application for a federal writ of habeas corpus became final on
February 18, 1998. Under this Court's Rules, a timely petition for
a writ of certiorari to review that decision could have been filed
as late as May 19, 1998. See Rule 13.1 ("[A] petition for a writ of
certiorari to review a judgment in any case, civil or criminal,
entered by ... a United States court of appeals ... is timely when
it is filed with the Clerk of this Court within 90 days after entry
of the judgment"). Ordinary review of that petition pursuant to our
Rules would have given us additional time thereafter to consider
its merits in the light of the response filed by the Commonwealth
of Virginia. We have, however, been deprived of the normal time for
considered deliberation by the Commonwealth's decision to set the
date of petitioner's execution for today.
380
There is no compelling reason for refusing to follow the
procedures that we have adopted for the orderly disposition of
noncapital cases. Indeed, the international aspects of this case
provide an additional reason for adhering to our established Rules
and procedures. I would therefore grant the applications for a
stay, and I respectfully dissent from the decision to act hastily
rather than with the deliberation that is appropriate in a case of
this character.
JUSTICE GINSBURG, dissenting in No. 97-8214 (A-732).
I would grant the application for a stay of execution in order
to consider in the ordinary course the instant petition, Breard's
first federal petition for writ of habeas corpus.
JUSTICE BREYER, dissenting.
In my view, several of the issues raised here are of sufficient
difficulty to warrant less speedy consideration. Breard argues, for
example, that the novelty of his Vienna Convention claim is
sufficient to create "cause" for his having failed to present that
claim to the Virginia state courts. Pet. for Cert. in No. 97-8214,
pp. 20-22. He might add that the nature of his claim, were we to
accept it, is such as to create a "watershed rule of criminal
procedure," which might overcome the bar to consideration otherwise
posed by
Teague v.
Lane, 489 U. S. 288, 311
(1989). He additionally says that what the Solicitor General
describes as Virginia's violation of the Convention "prejudiced"
him by isolating him at a critical moment from Consular Officials
who might have advised him to try to avoid the death penalty by
pleading guilty. Pet. for Cert. in No. 97-8214, p. 22; see Brief
for United States as
Amicus Curiae in Nos. 97-1390 and
97-8214, p. 12 ("[T]he Executive Branch has conceded that the
Vienna Convention was violated"). I cannot say, without examining
the record more fully, that these arguments are
obviously
without merit. Nor am I willing to accept without fuller briefing
and consideration the positions taken
381
by the majority on all of the sometimes difficult issues that
the majority addresses.
At the same time, the international aspects of the cases have
provided us with the advantage of additional briefing even in the
short time available. More time would likely mean additional
briefing and argument, perhaps, for example, on the potential
relevance of proceedings in an international forum.
Finally, as JUSTICE STEVENS points out, Virginia is now pursuing
an execution schedule that leaves less time for argument and for
Court consideration than the Court's Rules provide for ordinary
cases. Like JUSTICE STEVENS, I can find no special reason here to
truncate the period of time that the Court's Rules would otherwise
make available.
For these reasons, taken together, I would grant the requested
stay of execution and consider the petitions for certiorari in the
ordinary course.
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