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IN THE SUPREME COURT OF THE UNITED STATES
- - - - - - - - - - - - - - - - - - - - x
JOSE ERNESTO MEDELLIN, :
Petitioner, v. DOUG DRETKE, DIRECTOR, TEXAS :
: DEPARTMENT:
No. 04-5928

OF CRIMINAL JUSTICE, CORRECTIONAL :
INSTITUTIONS DIVISION. :

- - - - - - - - - - - - - - - - - - - - x
Washington, D.C. Monday, March 28, 2005 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:01 a.m. APPEARANCES: DONALD F. DONOVAN, ESQ., New York, New York; on behalf of the Petitioner. R. TED CRUZ, ESQ., Solicitor General, Austin, Texas; on behalf of the Respondent. MICHAEL R. DREEBEN, DEPUTY SOLICITOR GENERAL, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.; on behalf of the

States, as amicus curiae, supporting Respondent.
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C O N T E N T S
ORAL ARGUMENT OF DONALD F. DONOVAN, ESQ.
On behalf of the Petitioner ORAL ARGUMENT OF
R. TED CRUZ, ESQ.
On behalf of the Respondent ORAL ARGUMENT OF
MICHAEL R. DREEBEN, ESQ.
On behalf of United States,
as amicus curiae, supporting respondent. REBUTTAL ARGUMENT OF
DONALD F. DONOVAN, ESQ.
On behalf of the Petitioner 52
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PAGE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court:

P R O C E E D I N G S [11:01 a.m.] CHIEF JUSTICE REHNQUIST: We'll hear argument

now in number 04-5928, Jose Medellin versus Doug Dretke. Mr. Donovan. ORAL ARGUMENT OF DONALD F. DONOVAN ON BEHALF OF PETITIONER MR. DONOVAN: Mr. Chief Justice, may it please

This case was exceptionally important when the Court granted it, and it's even more important now. belongs in this Court. It

At the same time, Mr. Medellin

requests that the Court hold the case while he goes back to Texas. to the merits. Under its decision last year in ex parte, so far, Texas has modified its longstanding two-forums rule. Court of Criminal Appeals will now entertain a I'd like to explain why, before I turn

subsequent application for habeas writ, even if there are proceedings pending before a Federal Court, so long as the Federal Court stays its proceedings. The Court

designed that procedure so that a habeas petitioner could return to state court to exhaust an unexhausted claim without compromising his right to federal habeas
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-
CHIEF JUSTICE REHNQUIST: Ordinarily do not
think of that as covered in this Court.
MR. DONOVAN: Well, the Court of Criminal

Appeals did not specify; but we find, of course,
ourselves in an unusual posture, in the sense that the
sequence of events here are such that even -- the Court
of Appeals has decided the Avena judgement claim, the
Court has --
JUSTICE O'CONNOR: But has this Court ever

just said, "Fine, we'll hold it in abeyance and come back next term"? I can't recall that we've done that. Well, it's an -- it is, in fact,

MR. DONOVAN: an unusual posture. And it --

JUSTICE O'CONNOR:

I mean, it would be more

likely that we would dismiss this, improvidently granted. MR. DONOVAN: Well, the case, though, has not

been improvidently granted, with the greatest respect to the Court. Of course, the case was important when The question, whether or not the

the Court granted it.

United States will comply with an international obligation that every actor here -- the United States, Texas, and the Petitioner -- all recognize as binding, is an important question. The President has now come
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in and said that it's even more important, by saying that, in fact, the United States will comply. JUSTICE O'CONNOR: Well, it's so odd, because

usually what happens, if there is something that could occur at the state court level, is the state court itself would hold off until this Court had resolved whatever the case was. request. MR. DONOVAN: We recognize that it's an So, this is a very unusual

unusual request, because of the unusual circumstances. And, of course, the alternative, if the Court is not prepared to stay, or, for example, vacate, in light of the presidential determination, remand to the Court of Appeals -CHIEF JUSTICE REHNQUIST: Well, I think -- I

think granting a stay could be seen as validating the position of the government without ever having an opinion on it. MR. DONOVAN: Well, actually, I think that a

stay would actually show respect to each of the relevant actors here. And so -Well, why shouldn't we just

JUSTICE O'CONNOR:

go ahead and decide the case, if we can? MR. DONOVAN: Well, we believe that there are,

in fact, firm grounds on which this Court could grant Page 5 Alderson Reporting Company

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- could decide the question presented, because, in
fact, for the reasons -- there are really three points
here -- for the reasons we've laid out, the Court,
under the direct command of the Supremacy Clause, has -
- can give effect to the Avena judgement as the rule of
decision. The President's determination, in fact,

eliminates the -- even setting aside its independent
force, eliminates the basic objection of Texas to that
course of action. And then, of course, there's the

basic independent full force of the Supremacy Clause. So if I may move to that, the Court, as I said, has recognized the importance of the United States complying with an international obligation reflected in treaties entered into by the democratically elected representatives of the American people. I want to address the question presented first, because, I -- before -- setting aside the presidential determination -- and just take a look at where we stand after the briefing by the parties as a - on the question whether or not the Avena judgement provides the rule of decision. First of all, there's an extraordinary amount of agreement between petitioner and respondent. Respondent agrees that the Vienna Convention is a
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binding legal commitment of the United States. Respondent agrees that the Convention is self-
executing.

The

The Respondent agrees that the United

States agreed to submit disputes concerning the
application and interpretation of the Convention to the
ICJ. He agrees that the United States agreed that any

determination by the International Court of Justice
would be binding.
CHIEF JUSTICE REHNQUIST: creation of a private right of action? MR. DONOVAN: Well, there is a -- there is a How about the

-- there are basically three objections that the Respondents made. One of them is the cause of action.

But the Respondent confuses the creation of a cause of action with what the -- a treaty will typically do. The treaty here lays out the rights, and the treaty lays out an individual right, as determinated by the ICJ. The treaty will not customarily create the For how the United States will abide

cause of action.

by its legal obligations -- that is, how the United States will give effect to the international obligation -- we look to domestic law. CHIEF JUSTICE REHNQUIST: the courts usually do that, don't they? MR. DONOVAN: That's exactly right. But we Well, the courts --

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would look -- we would look to how the United States has provided for the implication of that international obligation. Here, in the first instance, we have a

direct command of the Supremacy Clause, a very fundamental choice made by the Framers -CHIEF JUSTICE REHNQUIST: to the private right of -MR. DONOVAN: The private right of action is That doesn't speak

found here in the habeas statute itself, which provides that a person in custody in violation of laws, treaties, or the Constitution of the United States can seek -JUSTICE O'CONNOR: So, presumably, that could

provide some cause of action, quite irrespective of the ICJ decision. MR. DONOVAN: Well, it could -- it -- the

cause of action is, itself, provided by -JUSTICE O'CONNOR: MR. DONOVAN: Yeah, I mean, you don't --

-- the rest of the --- you don't really have to I

JUSTICE O'CONNOR:

get into whether that judgement is enforceable here. mean -MR. DONOVAN: Well --

JUSTICE O'CONNOR:

-- we could look at -- look

at it from the perspective of the habeas statute.
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MR. DONOVAN:

Well, that's right.

I mean,

there are three -- there are three basic questions that need to be -JUSTICE GINSBURG: But is it right -- I mean,

you couldn't -- you could not -- unless the ICJ decision gave a right to an individual, and you had no claim under the federal habeas statute -- and it is unusual, is it not, for a judgement of the International Court of Justice to recognize the right of an individual, as opposed to being just a judgement between nations? MR. DONOVAN: Well, it may be that, because of

the character of the typical dispute that the International Court of Justice hears, that it does not typically address such a question. But, plainly it has

jurisdiction to do so when the underlying treaty confers a right. And that's exactly one of the

questions that was litigated between Mexico and the United States in the Avena judgement. And the Court

held that, in fact, this treaty does provide individual rights. So -JUSTICE GINSBURG: How many -- how many times

has the ICJ held that, that a treaty, apart from being contract between the signers, confers individual rights?
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MR. DONOVAN:

Well, it has, of course, held, In

in -- first, in LaGrand and then here in Avena.

most of the cases the ICJ has held, however -- it has dealt previously, for example, with rights in this situation. For example, rights in the nature of For example, when the United

diplomatic protection.

States went to the ICJ in the Tehran hostages case, it went, not only in its own behalf, but in the exercise of diplomatic protection. -JUSTICE GINSBURG: But there was no individual And in that posture, the ICJ

That was a case of one nation against

There was no individual, like the Plaintiff

MR. DONOVAN:

But, in fact, in that case the

United States did assert the rights of its nationals who were held hostage. come down on that point. Barcelona -JUSTICE GINSBURG: Well, that's what I asked, It didn't -- the case didn't But, likewise, the famous

if this -- I know that, certainly in the context of the Vienna Convention, there have been the series of decisions you mentioned; but I was wondering whether, outside the Vienna Convention, there has been any similar judgement of the ICJ that operates directly on
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individuals.
MR. DONOVAN: Well, for example, in the

Barcelona Traction case, which is another case where,
again, there were rights of a particular company and a
particular national decided with -- under the guise of
diplomatic protection. this case went forward. And that's the posture which
Mexico asserted rights not

only on its own behalf, but on behalf of its nationals.
And, therefore, if we think of the -- the three
objections that was -- the Respondent has made to whether this Court can give us back the Avena judgement, they come down -- they include the two we've just discussed, and one more. First, they've said there are no individual rights here. But, of course, the treaty, as this Court

suggested in Breard, talks specifically about rights -quote/unquote, "rights." the ICJ held. And that, of course, is what

If the Avena judgement is binding, if

the Avena judgement informs the Vienna Convention with binding effect, then that question is not the question this Court needs to answer. The second point -JUSTICE SCALIA: Do you think -- do you think

that the President can enter into a treaty, with the approval of Congress, that would provide that, in a
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particular combat, the Commander in Chief will be somebody other than the President of the United States? MR. DONOVAN: Well, the Court has recognized

that the only limitations of the treaty-making power are affirmative litigations -- affirmative limitations within the Constitution, itself. JUSTICE SCALIA: MR. DONOVAN: Right.

And -And you think that the

JUSTICE SCALIA:

Constitution provides the President shall be Commander in Chief, and, therefore, that can't be given away. MR. DONOVAN: JUSTICE SCALIA: MR. DONOVAN: Well -Right?

-- no, the -- obviously, a

treaty would not be able to amend the Constitution. JUSTICE SCALIA: Right. Well, what if I think

that the Constitution provides that all questions of federal law -- statutory, treaty, constitutional -- are to be decided, ultimately, by the Supreme Court of the United States. Can a treaty give that away? MR. DONOVAN: this treaty does not do that. JUSTICE SCALIA: determination of Avena. Well, a treaty would not be -When the -It does if we're bound by the

It does if I have to believe

that individual rights were created here, without
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reexamining the question on my own. MR. DONOVAN: Well, but the -- but the Court

has -- it -- the Court has regularly -- and it has never been an objection to Article III power to give effect to a judgement that has been rendered in another sphere by another adjudicatory authority. all the time with respect to -JUSTICE SCALIA: United States law. MR. DONOVAN: But this is a question -You're talking here about a Not a question concerning That happens

JUSTICE SCALIA:

question of United States law, What is the meaning of this treaty that the United States has entered into? Do you know another case where we have -- we have been bound by a judgement of a foreign court or an international court concerning the meaning of United States law? MR. DONOVAN: Well, what the Court would be

giving effect to is the determination by the political branches themselves to enter into the treaty. JUSTICE O'CONNOR: Well, I have a question

that is much along the same lines, whether this Court must apply Avena as the rule of decision, or perhaps say, "No, it does not have to do that." left with looking at the treaty itself.
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Then you're And does that

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-- can that take effect as American law? MR. DONOVAN: effect as American law. And -And, can -Well, the treaty does take

JUSTICE O'CONNOR: MR. DONOVAN:

-- in fact --- is it open in this case

JUSTICE O'CONNOR:

to -- for this Court to apply that, not Avena? MR. DONOVAN: apply the treaty. Well, the Court could, in fact,

It could reach its own

interpretation of the treaty, in accord with the Avena judgement. But we think -JUSTICE O'CONNOR: MR. DONOVAN: Is that open in this case?

Well, it surely would be open in

this case, but it would not be open at this point. We've suggested alternative bases by which the Court could conform with Avena. But we do believe that

Avena, in fact, controls the decision, for this reason, that, in the first instance, the political branches have agreed to the substantive obligations under the treaty; in the second place -JUSTICE O'CONNOR: can't control? Well, suppose we think it

Now, then what's open to us? MR. DONOVAN: Well, if the -- if the Court

decided that the Avena judgement did not control, then it would obviously go to the terms of the treaty
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itself.

But our argument is that, in fact, by virtue

of the political branches' decision and in operation of the treaty -- of the Supremacy Clause, the Court must be -- must give effect if the Court reached a decision -JUSTICE KENNEDY: Well, can the President give

an interpretation of the treaty unilaterally that is binding on us? Can the President sign a treaty and

then, a year later, give an interpretation of that treaty that's binding on us, insofar as what the treaty means? MR. DONOVAN: Well, the Court has -Can he do that?

JUSTICE KENNEDY: MR. DONOVAN:

Well, no, the treaty -- the

Court has traditionally accorded deference to the Executive's determination, but has not -- has not given that -JUSTICE KENNEDY: Right. I would say that

that, ultimately, is for this Court.

Then, if that's

so, how can he agree with the -- to confer jurisdiction on the World Court, which would do the same thing? MR. DONOVAN: Because it's not just the

President that's done that; it's the treaty-makers, it's the President acting with the advice and consent of the Senate in a context in which they are empowered
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to authorize a treaty -- enter into a treaty. they've done -JUSTICE O'CONNOR:

And

Well, is the

constitutionality of the President's action here before the Court in this case? MR. DONOVAN: Well, the -Only peripherally. Is that

JUSTICE O'CONNOR:

an issue for us to decide in this case? MR. DONOVAN: The question that we'd ask -I hadn't thought so. Do

JUSTICE O'CONNOR: you think it is? MR. DONOVAN:

Well, the -- we've asked that

the Court take account of the President's determination in this respect. The Vienna Convention sets out a -The ICJ -- we've

sets out substantive obligations.

agreed to go to the ICJ for the interpretation obligation of those obligations. ruled. The ICJ has now

The only objections, in effect, that the

Respondent has made is to say, "This Court can't decide that question," because it's within the power of the political branches. In effect, it said, "This Court

should step back and await the permission of the Executive." And in Mr. Medellin's view, this Court But if you did need to do

does not need to do that.

that, which is the Respondent's essential objection,
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the President has now said, not only should -- not only
can the Court give effect to the Avena a judgement, but
that it's in the paramount interest of the United
States that it do so, and that it do so promptly, and
that, therefore, any question about the -- about the
effectiveness of the Avena judgement has, on Texas' own
terms --
JUSTICE KENNEDY: MR. DONOVAN: What's the case --

-- on Respondent's --
-- what's the case that

JUSTICE KENNEDY:

you're citing for this proposition, that the President and the Senate can, in effect, confer on an international tribunal the obligation to bind this Court with reference to an interpretation of a treaty? What's the best case you've got for that? MR. DONOVAN: Well, it goes to the Supremacy It's -So you're telling me you

Clause itself, Justice Kennedy. JUSTICE KENNEDY: don't have a case. MR. DONOVAN:

Well, I'm not suggesting that

there is direct precedent in this Court for this circumstance. We recognize that the circumstances

presented in these particular -JUSTICE BREYER: Were you saying "binding," or

are you saying that we "show deference to" the
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President's own interpretation of the treaty, as applied to this 51-case set? In respect to that

deference, I suppose, he interprets the treaty in such a way that the Avena decision, in his opinion, as applied to this 51-set --case set is what the treaty means. MR. DONOVAN: Well, he has, in fact, come -Is that right, or not? He has --

JUSTICE BREYER: MR. DONOVAN:

Well, that's right.

he has, in fact, endorsed the notion that the United States should comply. JUSTICE BREYER: Well, if it is -- what I'm

wondering is if this is similar to that insurance case out of California, where, in fact, we gave considerable deference to Mr. Eisenstat's interpretation of the relationship of the treaty to the insurance laws of California. MR. DONOVAN: the Garamendi -JUSTICE SCALIA: That was not an Well, it -- that is true. And

interpretation that ousted this Court of jurisdiction over the matter, though, was it? MR. DONOVAN: Well, the -Don't you think that's a

JUSTICE SCALIA: little bit different?
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MR. DONOVAN:

But the Garamendi case did, in It's similar to

fact, endorse the President's power. the Dames & Moore case --

CHIEF JUSTICE REHNQUIST:

Yes, but in that

case it was overseeing arrangements that were made by our government, not -- they didn't have that much local authority. MR. DONOVAN: Well, that's -- that is a

distinction in the cases, but they still come down to a notion that -- both Garamendi and Dames & Moore -- to the President's authority to give effect to international obligations. CHIEF JUSTICE REHNQUIST: MR. DONOVAN: Well, but --

And here we have --- doesn't the

CHIEF JUSTICE REHNQUIST:

President, in Dames & Moore, enter into an agreement with Iran? MR. DONOVAN: Well, that's right. But that's

-- that situation doesn't really distinguish the cases, because in Dames & Moore v. Regan there was, in fact, an agreement, and the President acted pursuant to that agreement. But here we have -CHIEF JUSTICE REHNQUIST: But we decided, in

Dames & Moore, that he was acting pursuant to the agreement.
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MR. DONOVAN:

Well, they did act pursuant to

the agreement, and that's what the Court decided, but that's precisely what the President is doing here. The

President is giving effect to commitments made by the United States in the Vienna Convention, in the Optional Protocol, in the ICJ statute and in the United Nations charter. CHIEF JUSTICE REHNQUIST: MR. DONOVAN: So if --- we didn't decide But we didn't --

CHIEF JUSTICE REHNQUIST:

it on the basis that President Reagan says, "This is what in particular the agreement affected." examined it for ourselves. MR. DONOVAN: That's true, but -- and the We

Court looked at the -- the Court did not reexamine the terms of the agreement. What the Court decided in that

case was that it was within the President's foreignaffairs authority to enter into an agreement that would essentially required American claimants to go to the Iranian-United States Claims Tribunal. JUSTICE SCALIA: That doesn't -- that doesn't

involve an interpretation of the treaty that is rendered by somebody else and that is binding upon this Court. I mean, it's just a matter of different To say that there can be private claims,
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fine; but that doesn't say that the interpretation of a
treaty entered into the by the United States is subject
to a court, other than this Court.
MR. DONOVAN: The treaty itself is what the
It's the treaty

United States has committed itself to. in addition --
JUSTICE BREYER:

We have to look beyond the
It happens

President's interpretation of the treaty.

that the President is interpreting it, for reasons
related to what the ICJ said. But that doesn't make us

have to look beyond the reason for the President interpreting it the way he wants. I mean, do we have

to defer to the ICJ, or do you -- is it not sufficient to defer to the President, who is operating within his foreign-affairs power for whatever set of reasons he deems sufficient? MR. DONOVAN: Well, that's precisely why we've

said, in fact, what -- there are two independent sources of authority here, because, by operation of the Supremacy Clause, the ICJ, the interpretation and application of the Avena judgement would be given effect. Now we have an independent source of right in

the form of the President's determination. JUSTICE SCALIA: Except that the President

doesn't think that the remedy is in federal habeas.
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The President thinks that the remedy is within the states. MR. DONOVAN: Well, the President has said

that it should be given effect, and hasn't -- and hasn't said that it shouldn't be in federal habeas. the contrary, the President has indicated that, in fact, habeas would be available. JUSTICE SOUTER: Well, your position, I take To

it, is that if somehow we follow your suggestion so that the President's suggestion may be put into effect in the state courts, that there would still be a habeas jurisdiction, ultimately, over the result if you're dissatisfied with what happens in Texas. understand you correctly? MR. DONOVAN: That's right, there would be -Now, that -Do I

JUSTICE SCALIA: MR. DONOVAN: jurisdiction. JUSTICE SCALIA: question.

-- there would surely be habeas

-- that's an interesting

Let's turn from the more cosmic questions

into how you overcome the impediment that in order to get a Certificate of Appealability here, you have to show that there was -- you have to make a substantial showing of the denial of a constitutional right. constitutional right has been denied here?
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What

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MR. DONOVAN:

Well, at this point, of course,

the Court need not address that question on this -- on this petition. The question that the Court granted

was, Will the United States abide by the Avena judgement? And that -JUSTICE SCALIA: MR. DONOVAN: No, I take --

-- question would be answered --- that question to be a

JUSTICE SCALIA:

jurisdictional question, as far as the lower court is concerned; and, therefore, I think it's a jurisdictional question for us. MR. DONOVAN: Well, of course, for the reasons

we've laid out in our brief, we do not regard it as jurisdictional for this Court. The Court clearly has

jurisdiction under the petition to decide the questions on the basis that they should decide the question presented. JUSTICE KENNEDY: MR. DONOVAN: No, no.

But even if it -No. No. We can't forego

JUSTICE KENNEDY:

limits on our jurisdiction simply by granting the question. MR. DONOVAN: No, but -You don't say, "Oh, you've

JUSTICE KENNEDY:

granted a question; therefore, you have to decide
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whether you have jurisdiction or not." MR. DONOVAN: But this -See? And, as Justice Scalia

JUSTICE KENNEDY:

indicates, the COA is a jurisdictional requirement. MR. DONOVAN: But the COA is a jurisdictional

requirement for an appeal in the Court of Appeals. This comes to this Court as -- on the denial of a Certificate of Appealability -JUSTICE SCALIA: MR. DONOVAN: Yes, but --

-- and on a petition from that. Do you know of any --

JUSTICE SCALIA: MR. DONOVAN:

And so, the question raised by -

JUSTICE SCALIA:

-- do you know of any case in

which a lower court did not have jurisdiction, but we do have jurisdiction on appeal from in a -- from a court that didn't have jurisdiction? MR. DONOVAN: But the Court -- the Court of

Appeals had jurisdiction to entertain an application for Certificate of Appealability. And this Court, in

turn, has jurisdiction to grant a petition from the denial of the Certificate of Appealability. JUSTICE SCALIA: MR. DONOVAN: Well, if the --

And in that posture --- had jurisdiction to --

JUSTICE SCALIA:
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MR. DONOVAN: question presented.

-- the Court can decide the

JUSTICE SOUTER:

You're simply saying that any

court has jurisdiction to determine its jurisdiction.
We grant you that. But, granted that, if we reach it,

what is your answer to the claim that the COA requires
a showing of substantial infringement of
constitutional, as distinct from other sources of,
rights?
MR. DONOVAN: Well, first of all, we believe

that in the posture that this case comes to this Court, there has been a substantial denial of a constitutional right, even in the terms that Texas defines the statute, because what we have here is a claim based on the Avena judgement -- I mean, the ICJ's interpretation and application of the Avena judgement that the Court of Appeals held in effect that had been defaulted prior to its coming into existence. Because the effect of

the Court of Appeals judgement that the Avena -dismissing the -- or denying the Avena -- deciding the Avena judgement claim -- was to say -- was to give effect to a procedural default of the Avena judgement when it had not yet -JUSTICE SOUTER: MR. DONOVAN: So you're saying the --

That is --

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JUSTICE SOUTER:

-- the constitutional

violation is the violation of the Supremacy Clause. MR. DONOVAN: Well, in that -Is that what you're saying?

JUSTICE SOUTER: MR. DONOVAN:

Well, it's a violation here of

both the Due Process Clause and the Supremacy Clause. Due process -JUSTICE SOUTER: MR. DONOVAN: Due Process Clause because?

Because it was an arbitrary

denial of a forum in which to hear the Avena judgement claim, not simply the -- a different source of right. In other words, although the Avena judgement claim comes up on Texas as a proposition as a -- under a treaty, the action of the Court of Appeals was to deny that claim without giving it a forum. That is to say,

without -- that -- before it had been raised itself, before it even existed -- because the effect of the

Court of Appeals was to give effect to a procedural default of a right that hadn't come into effect. therefore, in that context, it's effectively a due process claim. JUSTICE GINSBURG: MR. DONOVAN: How do you answer -And,

In addition --- the related -- the

JUSTICE GINSBURG:

related question that -- well, assuming the Vienna
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Convention is certainly law, and treaty stands on the
same footing as law, but I believe that the -- Texas
and the Government have said the AEDPA statute is the
later-in-time provision, and when you have two
provisions with a statute treaty, the later-in-time
prevails. So why did -- why isn't the AEDPA

controlling, and not the Vienna Convention?
MR. DONOVAN: With respect to this claim,

AEDPA itself would be, in our view, ousted by The
Charming Betsey Principle. But in the particular

context here, you don't have -- you don't have a conflict with respect to the constitutional claims themselves; you have a constitutional claim based on a denial a right that did not exist, and you also have a constitutional claim based on the Supremacy Clause itself. CHIEF JUSTICE REHNQUIST: about denial of a right that didn't exist. perfectly rational, the way you put it. MR. DONOVAN: Well, that's -If the right didn't And you're talking That seems

CHIEF JUSTICE REHNQUIST: exist, it should have been denied. MR. DONOVAN:

And perhaps -- but the effect of

that -- and perhaps a more prudent way to put it is that the effect of that is to deny Mr. Medellin a
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forum, an -- arbitrarily deny him a forum on the effect of the Avena judgement, because the effect was to deny the Avena judgement claim based on a procedural default before the Avena judgement had been rendered. If I may save the remaining -- my remaining time for rebuttal? CHIEF JUSTICE REHNQUIST: Donovan. Mr. Cruz, we'll hear from you. ORAL ARGUMENT OF R. TED CRUZ ON BEHALF OF RESPONDENT MR. CRUZ: please the Court: At the outset, two issues bear emphasis. First, the Court need not, and should not, address the many interesting issues of international law and constitutional law that swirl about this case. JUSTICE SCALIA: you know. [Laughter.] MR. CRUZ: They are, indeed. And this may They really are interesting, Mr. Chief Justice, and may it Very well, Mr.

launch a thousand law-review articles.

But with

respect to the question before the Court, there is a simple and straightforward statutory basis to resolve this case; namely, that Section 2253 of the AEDPA does
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not allow a Certificate of Appealability for nonconstitutional claims. JUSTICE BREYER: JUSTICE O'CONNOR: JUSTICE BREYER: JUSTICE O'CONNOR: waived? Before we -Can that --- before we --- be waived? Can that be

And did Texas raise that issue in the Fifth

Circuit at all? MR. CRUZ: Justice O'Connor, Texas did not

explicitly waive this ground before the Fifth Circuit -

JUSTICE O'CONNOR: Fifth Circuit by Texas, was it? MR. CRUZ:

But it wasn't raised in the

That's correct, it was not.

But --

JUSTICE O'CONNOR:

And I assume, although we

haven't so decided, that that can just be waived. MR. CRUZ: Well, this Court has characterized

the standards for a COA as jurisdictional in a threshold inquiry. JUSTICE BREYER: jurisdictional. ground. But this is also a

They decided it on a jurisdictional

They decided that no COA lay, for the reason Now, I guess, though we wouldn't

that they said.

necessarily have to, we could simply say they're either right on that or they're wrong on that.
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And if they're

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wrong on it, send it back, and then you can argue
whether there are other grounds; in which case, they
could go into waiver, they could go into whether
"constitutional" means to embrace "treaty," and all
those other interesting arguments that we could write
law-review articles about that were not, in fact --
they swirl around in this case, and you would not, in
fact, be able to -- you wouldn't, in fact, have to
pronounce on them now, here, when they really haven't
been thoroughly gone into, below. MR. CRUZ: Justice Breyer, there are

alternative jurisdictional grounds this Court could address, but the COA ground is straightforward. flows from the direct text. It

And Petitioner has given

this Court no reason to disagree with every Court of Appeals that has looked at this question, all of whom have determined that "constitutional" means "constitutional." mean "statute." It doesn't mean "treaty," it doesn't And that's every Court of Appeals Given that that ground is

that's looked at that.

direct and straightforward, there is no need for this Court to venture into the difficult constitutional areas, the difficult questions of international law, when there is a straightforward statutory -JUSTICE SOUTER:
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Well, of course, we wouldn't

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even have to venture into -- possibly have to venture into this issue of law if Texas were interested in following the determination of the President. I take

it that the suggestion that your brother has made, that, in fact, we take no action at this point so that they may return to Texas with the President's determination, is not appealing to you. MR. CRUZ: We do not believe the Court should

stay this action, because whatever the resolution of the subsequent proceedings that are now filed in Texas, the resolution of that question will not control the federal-law questions here. JUSTICE SOUTER: Well, but does Texas have a

position in response to the President's determination? MR. CRUZ: Our first position would be, as

Justice O'Connor said, that that question is not presented in this case. That will surely be litigated

in the Texas state courts. JUSTICE GINSBURG: You said -- you said that We have the

something has started in the Texas courts.

motion to stay this case, and your response that it shouldn't be stayed, that we should decide this case. But what is going on, at this moment, in the Texas courts? MR. CRUZ: Justice Ginsburg, this weekend,
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Medellin filed a subsequent state habeas application with the Court of Criminal Appeals, in which he asked the Court of Criminal Appeals to stay its hand, pending this Court's decision whether this Court should stay its hand, pending the Court of Criminal Appeals -[Laughter.] MR. CRUZ: And so, that is a 50-page filing

that they just filed this weekend in which -JUSTICE GINSBURG: And after the Texas court

stays its hand, then what action is asked? MR. CRUZ: Well, what it asks for is to

authorize a subsequent state habeas proceeding based upon the President's determination, which he characterizes as the predicate for a new claim. And if

that is correct, then there is yet another problem to his getting relief here, which is that he has failed to exhaust what he claims is now the predicate. JUSTICE SOUTER: Well, but we don't -- we may

not reach that, if Texas says, "Well, yes, you're right, it is a claim, and we'll entertain it." Texas have a position on that question yet? MR. CRUZ: With respect to whether the Does

presidential determination is authorized, any -- that matter will be resolved in subsequent state court litigation. Any responsible state attorney -Page 32 Alderson Reporting Company

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JUSTICE SOUTER:

Well, I'm sure it will be,

but does Texas have a position on that, at this point?
MR. CRUZ: We would respectfully submit, as

would any responsible state attorney general, that
there are significant constitutional problems with a
unilateral Executive determination displacing generally
applicable criminal laws. But whatever the resolution

of that question, that would ultimately be reviewable
by this Court, on certiorari review.
JUSTICE KENNEDY: Well, that was my next -- my

question, and it follows on the question Justice Souter asked. not, Does the attorney general concede, or do you or acknowledge that there are Texas procedures in

which these questions can be litigated? MR. CRUZ: There absolutely are Texas

procedures in which the question of the validity of the President's determination can be litigated. And we

would anticipate that that would be litigated -JUSTICE BREYER: MR. CRUZ: But that --

-- and resolved -Yeah, that's what I'm trying

JUSTICE BREYER:

-- I'm trying to get to, which is, What is actually the practical thing to do now? Should we stay it, with a

short per curiam, which says, "Texas, go ahead," or should we do something else? Suppose we just dismiss

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this, as you say, on the alternative ground.

Well,

then what happens if Texas objects to the President's
order and turns out to be right, legally? See, if that

were true and then the review showed that it was true -
- I don't know that it is true, but if it were, then we
should turn to the Fifth Circuit claim, and there are
51 cases that depend on it. But if we've dismissed it,

by that time it's gotten mixed up in the very issue you
raise. The question is, Does "constitutional" embrace
And I think there is one case that says it So that's an

"treaty"?

does, actually; or a treatise, anyway. issue. ground.

And then they might refuse a COA on that And then there might -- and we'll never get I'm trying out on you the

this basic question decided.

argument for actually staying it, rather than digging it. MR. CRUZ: Whatever the resolution -What do you think? What do

JUSTICE BREYER: you -MR. CRUZ: stay it. believe

I do not believe the Court should I also

Digging it would be an option. -- I believe the most correct -JUSTICE O'CONNOR:

Well, why do you believe we

shouldn't stay it?

I mean -I don't believe the Court should -Page 34 Alderson Reporting Company

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JUSTICE O'CONNOR:

-- as an opinion, it's

MR. CRUZ:

Because whatever the resolution in

the State Court litigation, the resolution of that question will not impact the legal question before this Court now, which is, on first federal habeas, a claim that was filed that did not rely on Avena when it was filed, did not rely on the presidential determination -

JUSTICE STEVENS:

Yes, but is it not true that

it's entirely possible that the Texas proceeding would make this issue moot -MR. CRUZ: That is true. -- and, therefore, avoid the

JUSTICE STEVENS:

necessity for deciding a lot of very difficult questions? MR. CRUZ: That is true. That is frequently

the case, that in a -- in a case that is being litigated, there are other proceedings that have the potential to make something moot. JUSTICE KENNEDY: And is it also true that, in

the Texas proceedings, they necessarily would involve a federal question on which this Court could, if it chose, grant certiorari on direct review? MR. CRUZ: Absolutely.
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questions about the constitutional authority for the Executive determination may come back to this Court, but they're not presented by the case right now before the Court. The most direct avenue, I would submit, for this Court is to resolve this decision by affirming the Fifth Circuit judgement, and by affirming it on the grounds that a COA could not issue because this was not a constitutional claim. And that would necessarily

entail affirming Breard to the extent that Breard noted that a subsequently enacted statute, the AEDPA, to the extent of a conflict, superceded the Vienna Convention. JUSTICE BREYER: difficult is the question? Is the question -- how

The President of the United

States has issued a document where he says, "Exercising my foreign-affairs power, in my opinion the treaty, as I -- I accept the meaning of the treaty as set forth by the ICJ and apply it to these 51 cases." deciding that. So he's

And why doesn't he have the authority

to decide what that treaty means in these circumstances? That's his decision. And Texas is

bound by the Constitution. MR. CRUZ: We would agree that the fact that

the President has acted underscores the point made by both Texas and the United States, that the
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responsibility for determining the remedy to the Avena judgement is found in the political branches. And the

fact that the President is acting underscores this, that there is no precedent for an ICJ judgement being judicially enforceable. Indeed, Respondent is aware of

no country in the world that accords binding effect to ICJ judgements in their own domestic courts. JUSTICE O'CONNOR: And --

Well, Mr. Cruz, maybe the

treaty becomes part of federal law if it's properly ratified and signed, as this one was. Now, it's

possible that the treaty itself gives certain individually enforceable rights to Mr. Medellin. we can disregard the question of whether the Avena judgement is enforceable. MR. CRUZ: Justice O'Connor, that's -Isn't that right? And

JUSTICE O'CONNOR: MR. CRUZ: this Court -JUSTICE O'CONNOR:

-- that's absolutely correct, that

I mean, it would be open to

this Court, presumably, to say, that treaty became part of federal law when it was ratified, and Congress can enact subsequent laws. But, in any event, the treaty Is

could give rise to individual enforceable rights. that correct? MR. CRUZ:

To be sure, this Court could
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certainly determine that the Vienna Convention gives
rises to the individual rights. That interpretation,

however, would conflict with the express language of
the preamble to the treaty, and would also conflict
with the consistent position of the Executive Branch
since 1969, when this treaty was ratified. For those

36 years, the State Department has consistently
answered the question, that the Vienna Convention does
not give rise to individual rights. JUSTICE GINSBURG: to that issue? MR. CRUZ: The Breard case simply made And, indeed --

Did the Breard case speak

reference to -- that there was, arguably, individual rights. It didn't purport to resolve that. It said, So I don't

even if there were, it is barred by AEDPA.

believe the Breard case answers it, one way or the other; but, given the United States' consistent position -- and, indeed, it uses very similar language in later treaties, such as the two terrorism treaties that are cited in the United States' brief. It is worth underscoring that on every question currently before this Court in this proceeding, the United States agrees entirely with Texas, that this Court's resolution of this case should be to affirm the judgement of the Fifth Circuit because
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a COA should not have issued. CHIEF JUSTICE REHNQUIST: Well, if we came to

the conclusion that the treaty, by its own force, did not create enforceable individual rights, then we would have to get to the question of whether the President's proclamation changes that result. MR. CRUZ: Only in the most threshold sense;

because, on its face, the President's proclamation, or determination, is focused only on state courts, and what the President says is that he has determined that the Avena decision will have binding effect in state courts. So, according to the Executive determination,

that does not have a binding effect on this proceeding; but, rather, on a subsequent But that seems to be

CHIEF JUSTICE REHNQUIST:

topsy-turvy, that a treaty would have effect in state courts but not in federal court. MR. CRUZ: We don't disagree that the

Executive could have chosen other avenues. Nevertheless, Medellin's argument that, given the Executive has said, "This should have effect in some other proceeding," we should disregard what the Executive has said about this proceeding and apply it here, notwithstanding the President's express determination it wouldn't apply here.
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JUSTICE GINSBURG:

But isn't what the

President's memorandum says exactly what the Avena
judgement said? That is, the President said, "Well,

the ICJ said that these people are entitled to review
and reconsideration of their guilt and of their
punishment. And so, I think that's what should happen.

I agree with the judgement, or at least I think it
should be enforced, and the only place it can be
enforced is in the state court that rendered the
judgement, because the ICJ said what the United States has to implement is, they have to give a review and reconsideration." Now, I suppose, as far as the ICJ is concerned, they don't care if it's done by some federal tribunal, or state, but within our system, it must be the state, mustn't it? MR. CRUZ: Well, certainly under the terms of

the President's order, where the President said that he's determined it shall -- should be given effect, quote, "By having state courts give effect," by the express terms of the order, particularly as explained in the United States' brief, where that is conjoined with the position of the United States, that in this proceeding, on appeal from the first federal habeas proceeding, that there is no effect to the Avena
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judgement. articulated.

That's the position the United States has And so, to the extent this Court gives

deference to the Executive's position -- and in matters of foreign affairs, this Court has historically given great deference to that position -- that position states that that should have no effect upon this proceeding. JUSTICE STEVENS: make a suggestion. But, Mr. Cruz, let me just

Assume you lose -- I'm not

suggesting you will, but assume you do -- the net result of the proceeding, in your adversary's favor, would be that they would get a hearing in the state court, which is what -- the President's order says, "Let them have that right away." So the whole purpose

of having a lot of federal litigation to decide what you can address right away by honoring the President's request, at least litigating it in the state court right away, we may be engaged in a lot of useless activity. MR. CRUZ: Respectfully, if we were to lose,

and if Medellin were to prevail, his position could potentially open the door to the reconsideration of the over 100 foreign nationals that are on death row across this country, and, beyond that, to thousands -JUSTICE STEVENS:
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President's order, the same thing. MR. CRUZ: But the President's order is, by

its term, confined to the 51 Mexican nationals. Medellin's theory is not. Medellin's theory is not

even confined to those on death row; but, rather, would potentially extend to the thousands of foreign nationals -JUSTICE GINSBURG: But that can't be, in light I mean, we

of the United States' most recent action. have a judgement. people? Fifty-one?

The judgement concerns how many Forty-nine? Fifty-one. Okay. There is no

MR. CRUZ:

JUSTICE GINSBURG: judgement concerning anybody else. MR. CRUZ: Executive determination.

That's true with respect to the But the ICJ's decision went

beyond its authorizing statute and explicitly -- even though its authorizing statute says the ICJ has jurisdiction only to speak to the matter directly before it, in paragraph 151 the ICJ said it wasn't speaking just to the matter before it. JUSTICE GINSBURG: But this -- but if there's

a claim here based on the Avena judgement, it is that the United States agreed to the ICJ's jurisdiction in Vienna Convention cases. And so, pursuant to that
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agreement, there was an adjudication.

The United

States is no longer agreeing, so there will never be another adjudication. This adjudication concerns 51

people or -- and there are no others. MR. CRUZ: But Medellin's theory that Avena

should be applied as a binding rule of judgement, even without subsequent proceedings before the ICJ, could be taken to support granting habeas relief in other proceedings for individuals whose cases weren't litigated, particularly given that the ICJ in Avena purports -JUSTICE GINSBURG: Well, you have to -- you

have to recognize that there is a distinction between this case, which is, in large part, based on a judgement of the ICJ, and other cases that would not have the benefit of that judgement. MR. CRUZ: Surely. Although the terms of the

ICJ decision purport to apply more broadly than to these 51, and they explicitly say that this cannot be taken to imply that this does not apply to other foreign nationals, notwithstanding its jurisdictional statute that prevents it from doing that. JUSTICE GINSBURG: Why isn't this -- the

United States did consent to the jurisdiction of the ICJ in these Vienna Convention cases, and that tribunal
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issued a judgement.

Why doesn't it get the same

recognition and enforcement of any judgement of any court with jurisdiction? MR. CRUZ: Under the terms of the applicable

treaties, the ICJ has jurisdiction to determine, as a matter of international law, if there is a treaty breach. But those treaties also specify the remedy for

any judgement of the ICJ, and that remedy, under Article 94 of the U.N. charter, is recourse to the Security Council. That was explicitly adopted as a

political remedy, because it is the prerogative of the President and the political branches to determine how to respond. One of the responses open to the political branch, as the United States has articulated, is to decline to respond. And with respect to the Nicaragua In

case, that's exactly what the United States did. that situation -- and that matter was ultimately

litigated; Judge Mikva, for the D.C. Circuit, wrote a compelling opinion laying out that decisions of the ICJ are not judicially enforceable in U.S. courts; they are, rather, matters sovereign-to-sovereign. reasoning applies here. That same

It is a matter for the

Executive to determine how to apply. I would note that Medellin also presents an
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argument -- two arguments as to why he's presented
constitutional claims. One, a due-process claim. Due

process was not in the questions presented, as he
authored. It was not in the brief that he wrote to the
The words "due
And,

Fifth Circuit asking for a COA.

process" do not appear in his merits briefs.

indeed, under the sections -- the constitutional
sections cited, he does not include the Due Process
Clause.
JUSTICE SOUTER: Well, what difference does

that make, since this -- the issue to which it is addressed has not been raised either? I mean, it's a

new issue, and I presume, to the extent that it may be considered at all, his response -- he can make a response to it. MR. CRUZ: due-process claim. He might conceivably have brought a

And if he had brought a due-process

claim, the Court of Appeals could have considered if that due-process claim met the substantive standards of the AEDPA. He didn't bring a due-process claim. He

brought a treaty claim.

And that's the question upon

which he sought certiorari review by this Court. JUSTICE SOUTER: Well, I can understand the

argument, that he shouldn't be allowed to raise due process here if the argument also goes to your -- the
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permissibility of your raising 2253. MR. CRUZ: But 225- -What's sauce for the goose --

JUSTICE SOUTER: MR. CRUZ: to this Court. JUSTICE SOUTER:

-- but 2253 is a jurisdictional bar

Okay.

Then I don't see why

it isn't also a jurisdictional gate for him to make a response to it. MR. CRUZ: Because he didn't bring that case.

Sure, there are dozens of constitutional claims he could have brought that would have satisfied 2253. didn't bring those claims. that proceeding. He

So that's not presented by

He's not entitled, in his reply

brief, to say, "Well, you know, we could have brought this constitutional claim," given that he did not, in fact, bring that -- this constitutional claim. If Medellin's theory is adopted, it would embrace a standard beyond Fay versus Noia. Thank you. CHIEF JUSTICE REHNQUIST: Thank you, Mr. Cruz.

Mr. Dreeben, we'll hear from you. ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF UNITED STATES, AS AMICUS CURIAE, SUPPORTING RESPONDENT MR. DREEBEN: Mr. Chief Justice, and may it

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please the Court: For the reasons articulated in the brief for the United States and by the State of Texas, this Court should conclude that there was no jurisdiction in the lower court to issue of Certificate of Appealability; and, therefore, the Court should not reach the many questions that Petitioner has raised in this case about the effect of the Avena judgement. JUSTICE KENNEDY: Have there been any cases in

the Circuits holding that the state can waive the jurisdictional limitation on COA? MR. DREEBEN: There have been cases in the

Circuits, Justice Kennedy, that have held that once a COA has issued, the Court of Appeals may consider a claim that would otherwise be beyond the jurisdiction of the courts. But this is a case where a COA has not

been issued, and there is a plain procedural obstacle to its issuance that this Court can determine and, therefore, obviate the need to consider the very sensitive and delicate questions that Petitioner has raised. JUSTICE O'CONNOR: of the COA waivable? MR. DREEBEN: I don't think so, Justice But is their whole question

O'Connor, because a COA is a jurisdictional
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requirement.

And just as a notice of appeal is a

jurisdictional requirement and the prerequisites for proper notice of appeal have to be satisfied, the prerequisites for a proper Certificate of Appealability should be satisfied before this Court goes on to reach the merits of a question, which, as Justice Stevens has pointed out, may never need to be reached at all if the Texas courts recognize the President's determination with respect to the Avena decision or apply the Avena decision itself. And I think it's very noteworthy that the filing that Petitioner made at the end of last week in the Texas Court of Criminal Appeals seeking a successive petition for a writ of habeas corpus under Texas law specifically, at page 25, says that Petitioner is relying on the Avena judgement and he's relying on the President's determination, which are two new sources of law that were not available at the time the Texas courts previously addressed the matter and that now are available, which constitutes a ground for a second petition under Texas law, and that, accordingly, the Texas courts should allow this claim to be developed in the state courts and to be litigated there. To me, those statements are almost an
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admission that the claims that Petitioner has brought
here are barred by failure to exhaust available state
remedies.
JUSTICE GINSBURG: Mr. Dreeben, could this

question of the effect of the Avena Treaty be brought
before the Court? Mr. Donovan raised, I think, the All

Writs Act, and he also raised original writs in this
court. If the COA doesn't work, then treat this -- I

think that's what he's saying -- treat it as though it
were an application under the All Writs Act or an original writ. MR. DREEBEN: I do think that the Court would

have the option of availing itself of extraordinary jurisdiction, but, as the Court made clear in the Felker case, its exercise of extraordinary original writs would be informed by the limitations that the AEDPA imposes upon the grant of habeas corpus relief; and, therefore, the Court should look to at least the additional jurisdictional obstacle that the United States and Texas has raised; and, namely, that is that the decision that the Texas courts raised -- issued in this case is not contrary to any Supreme Court decision or a misapplication of any clearly established federal law. JUSTICE BREYER:
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So all those are -- there are

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a lot of reasons. holding this?

Does that counsel in favor of our

Here we have a case that went on a
And if we affirm or reverse

jurisdictional ground.

that jurisdictional ground from the Court of Appeals,
we'll decide a lot of issues that will create guidance.
We might not have to decide it, because Texas may deal
with it; or we may decide, if they come out the other
way, they're wrong. But we might. And that's why I

was thinking perhaps we should hold it rather than dig
it, particularly because that other issue does have some authority the other way. I take it there's a treatise in the Fifth Circuit case which does say that the word "constitutional" here encompasses "treaty." MR. DREEBEN: Justice Breyer, I do not think

that the Court should hold the case, pending the outcome of the Texas proceedings. JUSTICE BREYER: MR. DREEBEN: Because?

The Texas proceedings can

consider the Avena claim and the claim in reliance -JUSTICE BREYER: Yeah, but suppose you lose --

see, I'm thinking, suppose you lose in the Texas proceeding, it comes here, and, for whatever reason, suppose you lost again -- you might not, but you might -- in which case, then what do we do?
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MR. DREEBEN:

Well, the Supreme Court would

have the option of granting cert to review whatever the Texas courts -JUSTICE BREYER: thought they were right? the board? No, no, but suppose we

See, suppose you lost across

That would be the argument for holding it -

- holding it because then you'd have another vehicle to get to these questions. MR. DREEBEN: I think it would be close to

issuing an advisory opinion for the Court to decide an important issue of federal law in which there is a clear jurisdictional bar to the issuance of a Certificate of Appealability, and I don't think that a treatise creates enough of a doubt that "constitutional" in the AEDPA, means "constitutional" for this Court to embark on a wide-ranging exploration of potentially very significant issues with constitutional overtones. The Avena decision is not a freestanding source of law that can be administered by this Court wholly apart from the President's determination. What

the President did was to determine not that the treaty has a particular meaning that favors Petitioner's case, but that, as a matter of compliance with the obligation of the United States, under international law, to
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comply with a judgement of the International Court of
Justice -- or to determine not to -- but that, in the
interest of the rule of law and the obligations that
were taken on, the President would create a new source
of law, in effect, that would enable the enforcement of
that particular judgement, without respect to the
validity of the underlying merits determination that
the ICJ made.
But if this Court were to treat the ICJ
judgement as a freestanding source of law, it would frustrate the Executive's ability to determine, in a particular case, this determination by an international tribunal should not be enforced and it should not be given effect; rather, that the President might, in a particular case, choose to -- not to comply with that determination. And it would rob the President of that

freedom in international affairs were this Court to treat a determination by the International Court of Justice as a freestanding -JUSTICE O'CONNOR: Well, is, though, a treaty

that's been duly ratified and signed enforceable as part of our federal law, as this one is drafted? MR. DREEBEN: It is, Justice O'Connor, but it

should -- properly construed as not conferring privately-enforceable rights on a criminal defendant in
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a criminal case.

It has not one word about private
The

enforceability in a criminal case in its language.

backdrop of the Vienna Convention was that no country
had ever provided notice of rights to a criminal
defendant that would then form a basis, in the event of
a violation, of an attack on a criminal conviction.
State practice since the Vienna Convention has not
recognized, here or abroad, a privately-enforceable
right --
JUSTICE SCALIA: Mr. Dreeben, how many -- how

many states are we talking about for these 51 individuals involved in the case? states? MR. DREEBEN: number, Justice Scalia. I'm not sure of the exact How many different

I think it's five or six

states that have defendants that are at issue in those proceedings. And what the President determined was, with respect to those 51 individuals, observance of the ICJ judgement was warranted, as a matter of United States foreign policy, not because the United States agrees with the ICJ's rulings. JUSTICE SCALIA: It's conceivable that those

five or six states could say, "The President has no authority to do this," ground one.
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Ground two, "Even

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if he did, on the merits, we reexamine." thing could go away. MR. DREEBEN:

So the whole

That is absolutely correct.

And

I think that's an additional reason why this Court should not rush ahead and overlook jurisdictional obstacles that may not have been apparent to it at the time that it granted certiorari, and certainly the Court did not have the benefit of the fact that the President would make a determination that state courts should provide the review and reconsideration that the ICJ had determined was appropriate. And the Court, of

course, didn't know that Petitioner would then file a petition for successive writ in the Texas courts that could provide him the review and reconsideration that he now seeks this Court to announce in a ruling that would have extraordinarily broad and detrimental foreign-policy consequences for the United States' freedom to respond to the decisions of international tribunals in a manner that the President sees fit in accordance with his foreign-policy judgement. If the Court has no further questions -CHIEF JUSTICE REHNQUIST: Dreeben. Mr. Donovan, you have five minutes remaining. REBUTTAL ARGUMENT OF DONALD F. DONOVAN
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Thank you, Mr.

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ON BEHALF OF PETITIONER MR. DONOVAN: Thank you, Mr. Chief Justice.

The Respondent came to this Court saying that he agrees with Mr. Medellin that America could keep her -- should keep her word. Here's the situation we have.

Everybody agrees that these treaties are binding. Everybody agrees now that the President has determined that Mr. Medellin should get exactly what he came to this Court asking for, which is review and reconsideration from the state courts. The -- as Mr. Dreeben has pointed out, and as we advised the Court last week, in order to protect against any statute of limitations bar, we have, in fact, filed in Texas, in order to make these claims, pending the disposition here. And Mr. Medellin is

prepared to go forward in state court, making exactly these claims, which the state courts have never had an opportunity to occasion. The question here is, How does this Court fulfill its function of ensuring that the United States complies with its international obligations that the President has now confirmed he will comply with? of course, the question here is not whether this -whatever this Court does with respect to the question presented here -- that is, Does the Avena judgement
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And,

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having binding effect under the Supremacy Clause? -- in this case, would no in any way constrain the President's determination at some future point, because here we have a situation where the President has said "comply." And so, this case does not raise questions -if it operated directly under the Supremacy Clause -does not raise a question about what would happen if, in some future case, the political branches made a different determination once an ICJ judgement came to this country. Here, we have the President saying, "You

should do exactly what -- the United States -- what the ICJ said to do." So the question is, How does one proceed? have proposed a means of going forward that, in our view, is respectful to the authority of this Court, that is respectful to the Texas courts, and that's respectful to the President; and that is, to go forward on the subsequent application in the Texas courts, giving them two issues that they've never had a chance to address, the Avena judgement claim and the claim under the President's determination. What should not happen is, that application should not be compromised by any adverse action on this Court, and the suggestion of a dismissal might have
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We

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compromising effects.

At a minimum, it might be

perceived as leaving in place a judgement that this Court has already said warranted review and is now, in our view, fatally undermined by the President's determination, as it has been previously fatally undermined by the plain command of the Supremacy Clause. In addition, we would, no doubt -- we're already hearing arguments from the opposition to the motion to stay -- we would no doubt hear arguments that, on some subsequence habeas which the United States says is -- would be available, that that would be a second or successor habeas, even though Mr. Medellin has never had a chance to bring the -otherwise, to bring these claims to the Court. And,

therefore, the Court might, at some point -- at this point, the best thing to do, if we are going to achieve expeditious compliance with the President's determination -- is, in fact, to stay; not to deal with any of the questions that have been raised here, but to let the Texas courts deal with them in the first instance. If it comes back to this Court in the

posture of a direct -- for example, request for certiorari review from a judgement of the Texas courts -- there should be no adverse impact from anything this
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Court did at this posture, simply because Mr. Medellin
came here. And, indeed, it was Mr. Medellin's case
That

that presumably prompted the President to act.

would be unfair, and it would complicated the Court's
own disposition.
What do we have Texas saying before this
Court? Effectively, Texas has come into this courtroom

and said neither the President nor this Court can
effect -- can give effect of the Avena judgement,
because Texas has opposed the Court's authority under the direct operation of the Supremacy Clause, and now Texas has told the Court that the President can't do this either. And in the face of that suggestion, Mr.

Medellin has every hope and expectation that the Texas courts will see their obligations under the Supremacy Clause in a form of both the Avena judgement interpreting and applying the Vienna Convention and the President's determination, differently than the Texas authorities have so far announced. But if it does not,

this Court should have the full complement of means at its disposal in order to ensure that the United States complies with its international obligations. Mr. Dreeben has, himself, just suggested that there may be circumstances if it were not otherwise achievable. It's hard to think of a more important
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case for the exercise of this Court's extraordinary
writs. But none of that should be in any way

compromised by a dismissal, at this point, simply
because the President came in in the midst -- in fact,
concurrently -- into Mr. Medellin's own case before
this Court and made this determination. Instead, as

we'd suggest, the appropriate thing would be -- to do
is to stay the case, to allow it to go forward in the
Texas courts. But if the Court does not wish to stay,

we would respectfully suggest that, at this point, under direct command of the Supremacy Clause endorsed by the President's determination, as well as the President's determination itself, the Court should give effect to the United States' promises. Thank you very much. CHIEF JUSTICE REHNQUIST: Donovan. The case is submitted. (Whereupon, at 12:01 p.m., the case in the above-entitled matter was submitted.) Thank you, Mr.

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