MEDELLIN v. TEXAS on application to recall and stay mandate and for stay

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759 OCTOBER TERM, 2007
Per Curiam
MEDELLIN v. TEXAS
on application to recall and stay mandate and for
stay
No. 06–984 (08A98). Decided August 5, 2008*
Petitioner seeks a writ of habeas corpus and to recall and stay the mandate
and to stay his execution on the theory that either Congress or the
Texas Legislature might determine that International Court of Justice
(ICJ) actions should be given controlling weight in determining that a
Vienna Convention on Consular Relations violation is grounds for vacat
ing his sentence.
Held: The applications and petition for a writ of habeas corpus are denied.
Under settled principles, the possibility of congressional or state legisla
tive intervention is too remote to justify a stay, especially given that
Congress has not progressed beyond the bare introduction of a bill in
the four years since the ICJ ruling and the four months since this Court
ruled in Medellı´n v. Texas, 552 U. S. 491. That petitioner’s confession
was unlawfully obtained under domestic or international law, the begin
ning premise for any stay, is highly unlikely. And petitioner’s other
arguments seeking to establish that a Convention violation constitutes
grounds for invalidating the state-court judgment are insubstantial.
Applications and petition for writ of habeas corpus denied.
Per Curiam.
Petitioner seeks a stay of execution on the theory that
either Congress or the Legislature of the State of Texas
might determine that actions of the International Court of
Justice (ICJ) should be given controlling weight in determin
ing that a violation of the Vienna Convention on Consular
Relations is grounds for vacating the sentence imposed in
this suit. Under settled principles, these possibilities are
too remote to justify an order from this Court staying the
sentence imposed by the Texas courts. And neither the
*Together with No. 08–5573 (08A99), Medellı´n v. Texas, on application
for stay and on petition for a writ of certiorari to the Court of Criminal
Appeals of Texas, and No. 08–5574 (08A99), In re Medellı´n, on application
for stay and on petition for a writ of habeas corpus.

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760 MEDELLIN v. TEXAS
Per Curiam
President nor the Governor of the State of Texas has repre
sented to us that there is any likelihood of congressional or
state legislative action.
It is up to Congress whether to implement obligations un
dertaken under a treaty which (like this one) does not itself
have the force and effect of domestic law sufficient to set
aside the judgment or the ensuing sentence, and Congress
has not progressed beyond the bare introduction of a bill in
the four years since the ICJ ruling and the four months since
our ruling in Medellı´n v. Texas, 552 U. S. 491 (2008). This
inaction is consistent with the President’s decision in 2005 to
withdraw the United States’ accession to jurisdiction of the
ICJ with regard to matters arising under the Convention.
The beginning premise for any stay, and indeed for the
assumption that Congress or the legislature might seek to
intervene in this suit, must be that petitioner’s confession
was obtained unlawfully. This is highly unlikely as a matter
of domestic or international law. Other arguments seeking
to establish that a violation of the Convention constitutes
grounds for showing the invalidity of the state-court judg
ment, for instance because counsel was inadequate, are also
insubstantial, for the reasons noted in our previous opinion.
Id., at 502, n. 1.
The Department of Justice of the United States is well
aware of these proceedings and has not chosen to seek our
intervention. Its silence is no surprise: The United States
has not wavered in its position that petitioner was not preju
diced by his lack of consular access.
The application to recall and stay the mandate and for
stay of execution of sentence of death, presented to Justice
Scalia, and by him referred to the Court, is denied. The
application for stay of execution of sentence of death, pre
sented to Justice Scalia, and by him referred to the Court,
is denied. The petition for a writ of habeas corpus is denied.
It is so ordered.

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761 Cite as: 554 U. S. 759 (2008)
Stevens, J., dissenting
Justice Stevens, dissenting.
Earlier this Term, in Medellı´n v. Texas, 552 U. S. 491
(2008), we concluded that neither the President nor the In
ternational Court of Justice (ICJ) has the authority to re
quire Texas to determine whether its violation of the Vienna
Convention prejudiced petitioner. Although I agreed with
the Court’s judgment, I wrote separately to make clear my
view that Texas retained the authority—and, indeed, the
duty as a matter of international law—to remedy the poten
tially significant breach of the United States’ treaty obliga
tions identified in the President’s Memorandum to the Attor
ney General. Because it appears that Texas has not taken
action to address the serious national security and foreign
policy implications of this suit, I believe we should request
the views of the Solicitor General, who argued on behalf of
the Executive Branch in earlier proceedings in the suit, be
fore allowing Texas to proceed with the execution.
As I explained in my separate opinion in March, the cost
to Texas of complying with the ICJ judgment “would be
minimal, particularly given the remote likelihood that the
violation of the Vienna Convention actually prejudiced” this
petitioner. Id., at 536 (opinion concurring in judgment).
“On the other hand, the costs of refusing to respect the ICJ’s
judgment are significant. The entire Court and the Presi
dent agree that breach will jeopardize the United States’
‘plainly compelling’ interests in ‘ensuring the reciprocal ob
servance of the Vienna Convention, protecting relations with
foreign governments, and demonstrating commitment to the
role of international law.’ ” Id., at 537. Given these stakes,
and given that petitioner has been under a death sentence
for 14 years, waiting a short time to guarantee that the views
of the Executive have been given respectful consideration is
only prudent. Balancing the honor of the Nation against the
modest burden of a short delay to ensure that the breach is

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762 MEDELLIN v. TEXAS
Ginsburg, J., dissenting
unavoidable convinces me that the application for a stay
should be granted.
Accordingly, I respectfully dissent.
Justice Souter, dissenting.
I joined the dissent in Medellı´n v. Texas, 552 U. S. 491, 538
(2008) (opinion of Breyer, J.), and invoke the rule that it is
reasonable to adhere to a dissenting position throughout the
Term of Court in which it was announced. See North Caro
lina v. Pearce, 395 U. S. 711, 744 (1969) (Harlan, J., con
curring in part and dissenting in part). The only chance
to apply the treaty provisions the dissent would have held
presently enforceable is now through action by the other
branches of the Government. A bill on the subject has been
introduced in the Congress, Avena Case Implementation Act
of 2008, H. R. 6481, 110th Cong., 2d Sess. (2008), and the
Government has represented to the International Court of
Justice it will take further steps to give effect to that court’s
judgment pertinent to Medellı´n’s conviction, among others,
Request for Interpretation of the Judgment of 31 March
2004 in the Case Concerning Avena and Other Mexican Na
tionals (Mex. v. U. S.), 2008 I. C. J. No. 139, ¶ 37 (Order of
July 16). I would therefore enter the requested stay of exe
cution for as long as the remainder of the 2007 Term, to allow
for a current statement of the views of the Solicitor General
and for any congressional action that could affect the disposi
tion of petitioner’s filings. I would defer action on the peti
tion for a writ of certiorari to the Court of Criminal Appeals
of Texas, the petition for an original writ of habeas corpus,
and the motion to recall and stay the mandate in Medellı´n v.
Texas, supra.
Justice Ginsburg, dissenting.
I would grant the application for a stay of execution. Be
fore the International Court of Justice, in response to Mexi
co’s request for provisional measures, the United States rep

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763 Cite as: 554 U. S. 759 (2008)
Breyer, J., dissenting
resented: “[C]ontrary to Mexico’s suggestion, the United
States [does] not believe that it need make no further effort
to implement this Court’s Avena Judgment, and . . . would
‘continue to work to give that Judgment full effect, including
in the case of Mr. Medellı´n.’ ” Request for Interpretation of
the Judgment of 31 March 2004 in the Case Concerning
Avena and Other Mexican Nationals (Mex. v. U. S.), 2008
I. C. J. No. 139, ¶ 37 (Order of July 16). I would invite the
Solicitor General’s clarification of that representation very
recently made to the international tribunal. Pending re
ceipt and consideration of the Solicitor General’s response,
I would defer action on Medellı´n’s submissions.
Justice Breyer, dissenting.
The International Court of Justice (ICJ) has held that a
treaty that the United States has signed, namely, the Vienna
Convention on Consular Relations (Vienna Convention), Apr.
24, 1963, [1970] 21 U. S. T. 77, T. I. A. S. No. 6820, does not
permit execution of this defendant without a further hearing
concerning whether Texas’ violation of the Vienna Conven
tion’s obligation to notify the defendant of his right to consult
Mexico’s consul constituted harmless error. Case Concern
ing Avena and Other Mexican Nationals (Mex. v. U. S.),
2004 I. C. J. 61–64 (Judgt. of Mar. 31). The United States
has agreed that the ICJ’s judgments will have “binding
force . . . between the parties and in respect of [a] particular
case.” United Nations Charter, Art. 59, 59 Stat. 1062, T. S.
No. 993 (1945). The President of the United States has con
cluded that domestic courts should enforce this particular
ICJ judgment. Memorandum to the Attorney General (Feb.
28, 2005), App. to Pet. for Cert. in No. 06–984, p. 187a.
In Medellı´n v. Texas, 552 U. S. 491 (2008) (6-to-3 vote), this
Court, while recognizing that the United States was bound
by treaty to follow the ICJ’s determination as a matter of
international law, held that that determination did not auto
matically bind the courts of the United States as a matter

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764 MEDELLIN v. TEXAS
Breyer, J., dissenting
of domestic law in the absence of further congressional legis
lation. Id., at 504–519. In reaching this conclusion the ma
jority, as well as the dissent, recognized that, without the
further hearing that the ICJ found necessary, the execution
would violate our international treaty commitments. See
id., at 504; id., at 538–540 (opinion of Breyer, J.).
Petitioner, who is scheduled to be executed this evening,
now asks us to delay the execution in order to give Congress
an opportunity to act to cure the legal defect that the Court
found in Medellı´n. In my view, several factors counsel in
favor of delay. First, since this Court handed down Med
ellı´n, Mexico has returned to the ICJ requesting this Na
tion’s compliance with its international obligations; and the
ICJ has asked that the United States “take all measures
necessary to ensure that [the Mexican nationals] are not exe
cuted” unless and until they “receive review and reconsidera
tion consistent” with the ICJ’s earlier Avena decision. See
Request for Interpretation of the Judgment of 31 March
2004 in the Case Concerning Avena and Other Mexican Na
tionals (Mex. v. U. S.), 2008 I. C. J. No. 139, ¶ 80 (Order of
July 16).
Second, legislation has been introduced in Congress seek
ing to provide the legislative approval necessary to trans
form our international legal obligations into binding domes
tic law. See Avena Case Implementation Act of 2008, H. R.
6481, 110th Cong., 2d Sess. (2008) (referred to committee,
July 14, 2008).
Third, prior to Medellı´n, Congress may not have under
stood the legal need for further legislation of this kind.
That fact, along with the approaching election, means
that more than a few days or weeks are likely necessary
for Congress to determine whether to enact the proposed
legislation.
Fourth, to permit this execution to proceed forthwith
places the United States irremediably in violation of interna
tional law and breaks our treaty promises.

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765 Cite as: 554 U. S. 759 (2008)
Breyer, J., dissenting
Fifth, the President of the United States has emphasized
the importance of carrying out our treaty-based obligations
in this case; this fact, along with the President’s responsibil
ity for foreign affairs, makes the Executive’s views of the
matter pertinent.
Sixth, different Members of this Court seem to have very
different views of what this case is about. In my view, the
issue in this suit—what the majority describes as the “begin
ning premise”—is not whether a confession was unlawfully
obtained from petitioner. Cf. ante, at 760. Rather, the
question before us is whether the United States will carry
out its international legal obligation to enforce the decision
of the ICJ. That decision requires a further hearing to de
termine whether a conceded violation of the Vienna Conven
tion (Texas’ failure to inform petitioner of his rights under
the Vienna Convention) was or was not harmless. Nor do I
believe the majority is correct insofar as it implies that Con
gress has had four years to consider the matter. See ibid.
(“Congress has not progressed beyond the bare introduction
of a bill in the four years since the ICJ ruling and the four
months since our ruling in Medellı´n v. Texas”). To the con
trary, until this Court’s decision in Medellı´n a few months
ago, a Member of Congress might reasonably have believed
there was no need for legislation because the relevant treaty
provisions were self-executing. It is not realistic to believe
Congress could act to provide the necessary legislative ap
proval in only a few weeks’ time.
In my view, we should seek the views of the Solicitor Gen
eral (which may well clarify these matters), and we should
grant a stay of sufficient length for careful consideration of
those views, along with the other briefs and materials filed
in this suit. A sufficient number of Justices having voted to
secure those views (four), it is particularly disappointing that
no Member of the majority has proved willing to provide a
courtesy vote for a stay so that we can consider the Solicitor
General’s view once received. As it is, the request will be

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766 MEDELLIN v. TEXAS
Breyer, J., dissenting
mooted by petitioner’s execution, which execution, as I have
said, will place this Nation in violation of international law.
For the reasons set forth, I respectfully dissent.

Job: 554ORD Take: NOT1 Date/Time: 12-14-12 13:17:10
Reporter’s Note
The next page is purposely numbered 901. The numbers between 766
and 901 were intentionally omitted, in order to make it possible to publish
the orders with permanent page numbers, thus making the official cita
tions available upon publication of the preliminary prints of the United
States Reports.