THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

\_\_\_\_\_\_\_\_\_\_\_\_

NO.

\_\_\_\_\_\_\_\_\_\_\_\_

JUAN RAUL GARZA

Petitioner-Appellant

v\.

HARLEY LAPPIN, Warden

Respondent-Appellee

\_\_\_\_\_\_\_\_\_\_\_

BRIEF FOR RESPONDENT APPELLEE

\_\_\_\_\_\_\_\_\_\_\_\_

**JURISDICTION**

This is an appeal from the dismissal for lack of jurisdiction by the
United States District Court for the Southern District of Indinana of
the petition for writ of habeas corpus filed by Juan Rual Garza (Garza)
under 28 U.S.C. § 2241. The final judgment was entered on May 30, 2001.
This Court has jurisdiction under \[\*\*\* to determine jurisdiction\].

**STATEMENT OF ISSUES**

> **Whether the District Court properly dismissed for lack of
> jurisdiction Garza's petition for writ of habeas corpus filed under 28
> U.S.C. § 2241, in which he alleged that the American Declaration, the
> Organization of American States (OAS) Charter and international law
> were violated by the governments reliance at the punishment phase of
> his capital murder trial on on unadjudicated murders committed in
> Mexico.**

**STATEMENT OF THE CASE**

Garza is currently incarcerated in the Special Confinement Unit at the
United States Penitentiary in Terre Haute, Indiana. He was convicted in
the United States District Court for the Southern District of Texas,
Brownsville Division, of three counts of capital murder and sentenced to
death. His convictions and sentence were affirmed by the United States
Court of Appeals for the Fifth Circuit on September 1, 1995. *United
States v. Flores and Garza*, 63 F.3d 1342 (5th Cir. 1995). He petitioned
the Court of Appeals for rehearing on November 21, 1995, and rehearing
was denied on December 15, 1995. *United States v.* *Garza,* 77 F.3d 481
(5th Cir. 1995)(table). He subsequently petitioned the United States
Supreme Court for certiorari review on March 14, 1996, which marked the
end of the 90-day period provided by statute. Relief was denied on
October 7, 1996. *United States v Garza, 519* U.S. 825, 117 S.Ct. 87
(1996). Rehearing was denied on December 2, 1996. *United States v.
Garza, 519* U.S. 1022, 117 S.Ct. 542 (1996).

After exhausting to the day the one-year statute of limitations period
provided by statute, petitioner filed his motion to vacate sentence
under 28 U.S.C. § 2255 on December 2, 1997 (CV-Dkt 1; attached as
Appendix 1). The district court denied relief on April 9, 1998. *United
States v. Garza*, Civil Action No. B-97-273 (S.D.TX). Petitioner
subsequently filed a motion for relief from judgment under [Fed. R. Civ.
P. 60(]{.smallcaps}b[).]{.smallcaps} He filed a separate motion to alter
and amend judgment under [Fed. R. Civ. P]{.smallcaps}. 59(e). The
district court denied all requested relief and denied a certificate of
appealability (COA) on May 18, 1998. The Fifth Circuit Court of Appeals
also denied COA on January 14, 1999. Petitioner's subsequent petition
for writ of certiorari was denied on November 15, 1999.

On May 26, 2000, the United States District Court for the Southern
District of Texas scheduled Garza's execution for 6 a.m. on August 5,
2000. On August 2, 2000, President Clinton granted Garza a reprieve, to
allow Garza to seek clemency under newly-promulgated regulations
applicable to individuals sentenced to death. At the same time, the
former President rescheduled the execution for December 12, 2000. On
December 11, 2000, President Clinton granted Garza an additional
reprieve from December 12, 2000, to June 19, 2001, and set June 19,
2001, as the new date for the execution, with the time to be set by the
Bureau of Prisons.

On April 24, 2001, in the United States District Court for the Southern
District of Indiana, the district of Garza's incarceration, he filed a
Petition for Writ of Habeas Corpus pursuant to § 2241 and a motion for
stay of execution. The district court entered a show cause order on
April 26, 2001, and on May 11, 2001, the government filed its Opposition
to Stay and Motion to Dismiss. The district court dismissed the Garza's
habeas petition for lack of jurisdiction on May 30, 2001. This appeal
followed.[^1]

**STATEMENT OF FACTS**

At trial, Garza's challenge to the government\'s evidence as to his
involvement in the extraneous, unadjudicated murders of four accomplices
in Mexico was limited to his Fifth Amendment claim that he was denied
his due process right to a fair opportunity to deny or explain that
evidence. Specifically, he complained that he could not effectively
defend himself against these accusations because he did not have
compulsory process in Mexico, that he could not discover exculpatory
evidence that the Mexican police possessed, and that he had no
safeguards against police misconduct in that foreign country.

1.  [Notice of aggravating factors and discovery]{.underline}.

The United States gave notice of its intent to seek the death penalty on
January 7, 1993, for the murders of Gilberto Matos, Thomas Rumbo and
Erasmo De La Fuente. In this notice, the United States additionally
listed as aggravating factors the 1991 murder of Oscar Cantu, the 1991
murder of Antonio Nieto, and 1992 murder of Bernabe Sosa. This notice
was subsequently amended on February 12, 1993, over Garza's objection,
to include the February 8, 1993, murder of Diana Flores Villareal
(CR-Dkt. 1270-77). It was amended again on March 29, 1993, and April 20,
1993, to include the murders of Fernando Escobar Garcia and Bernabe Sosa
(CR-DKT. 1014-25). On June 25, 1993, the government gave notice of its
intent to introduce evidence of violent acts (CR-Dkt. 652-53).

At the March 3, 1993 pretrial conference, the United States advised the
court that it had mailed to the defense copies of the first 264 exhibits
and it tendered exhibits 265-322 at the hearing. The United States
agreed, as a continuing obligation, to turn over the police reports of
the murders (CR-Dkt. 190, p. 31). The United States specifically advised
the court that it believed those pathology and lab reports had been
received and turned over. On May 28, 1993, Garza complained that he
needed additional time to decipher the Mexican autopsy reports for
Fernando Escobar-Garcia. The United States disputed Garza\'s contention
that it had failed to turn over the different Mexican autopsy and
investigative reports. The only delay had been in obtaining the
"corrected\" transcriptions that were "certified translations from the
official court interpreter." Those transcriptions were turned over at
that time, more than six weeks before the United States began its
presentation of evidence at the guilt phase of trial on July 12, 1993,
and two months before Garza\'s sentencing hearing began on July 29, 1993
(CR-Dkt 399, pp. 103-04, 116-17).

Two weeks before the guilt phase of the trial, on June 28, 1993, counsel
for the defense made a second supplementary *Brady* motion requesting
arrest records and police department files relating to any other
individual who might have been arrested in connection with the murders
both in the United States and Mexico, complaining that the defense did
not have the power to get those records from the Mexican authorities
(CR-Dkt. 400, p. 21-22). When asked to be more specific, defense counsel
replied that he wanted arrest records and police files (both United
States and Mexico) of other individuals who had been arrested in
connection with the murders (CR-Dkt. 400, p. 23). The government
responded that the only person arrested in connection with the murders
was Juan Jose Stevens and the report was made available to the defense.
Further, there were some individuals who, at various times, had been
questioned during the investigation. By the time of the hearing, the
United States had already turned over that information to the defense,
along with all of the Jencks Act material and all relevant officer\'s
reports in its possession and knowledge, and that any information would
be contained in those reports (CR-Dkt. 400, p. 23-27).

With respect to the murders in Mexico, the United States expressly
averred that it "had turned over to them every single document that we
received from Mexico, including the police reports." (CR-Dkt. 400, p.
26). Defense counsel at this point requested that the court order the
United States to conduct defense discovery by making further inquiries
as to the investigations that took place in Mexico by Mexican
authorities (CR-Dkt. 400, p. 26). The court told the defense that it
would have to identify the evidence and explain why the defense could
not \"go get it yourself.\" (CR-Dkt. 400, p. 26-27). The defense replied
in response that it did not have subpoena power in Mexico (CR-Dkt. 400,
p. 27). The court then ordered the United States to make available any
record regarding any Mexican investigation that was known to the
government, and the prosecutor replied that "we do not know of anything
that has not already been turned over to the defense" (CR-Dkt. 400, p.
27). The court reminded the United States of its continuing duty to turn
over any exculpatory evidence known to the government (CR-Dkt. 400, p.
27).

At the June 30, 1993 pretrial hearing, the defense again accused the
United States of having failed to turn over "numerous documents that
were being translated and certified." When pressed by the court to be
specific, defense counsel clarified that he was referring to the Mexican
autopsy reports, to which the government advised that they had "long
since been corrected" and the "defense have been given copies of
everything" (CR-Dkt. 400, p. 192-94). Apparently frustrated with the
defense's continuing and unfounded accusation that the government had
not complied with its promises of providing discovery, the government
advised the court that it had kept a log of all information released to
the defense (CR-Dkt. 400, p. 194). This detailed 48-page inventory of
the evidence that had been given to the defense is a matter of record
(Tr. 173-220).

2.  [Evidence presented at the sentencing hearing]{.underline}.

The United States proved the murders of Escobar, Nieto, Sosa, and Cantu,
and Garza's participation in them through the testimony of accomplices
Israel Flores, Jesus Flores, and Greg Srader, all of whom actually
participated in one or more of the murders. How each victim was
identified and the autopsy results were proved at trial through the
in-court testimony of the United States Customs agents who investigated
the crimes and by the pathologist who actually conducted the autopsy. As
stated above, Garza was given copies of Mexico's investigative reports
and \"certified" translations of the autopsy reports well in advance of
trial. This evidence is detailed as follows:

A. [Murder of Fernando Escobar Garcia.]{.underline}

Escobar's murder was proved primarily through the testimony of Garza's
accomplice, Israel Flores. Flores testified that Antonio Nieto was one
of Garza\'s associates who had participated in stalking Matos, and
Fernando Escobar Garcia (who was one of Garza\'s Mexican contacts). On
one of Flores's and Nieto\'s trips to Mexico to buy marihuana for Garza,
Nieto was arrested for possessing a gun and marihuana \"joints.\" At the
time of his arrest, Nieto was driving Escobar\'s car. Flores loaned
Nieto \$10,000 of Garza\'s drug money to get out of jail; however, Nieto
reneged on his promise to repay the loan. Meanwhile, complaining that
they were taking too long to complete the deal (they were in Mexico from
January to May 1991), Garza called Flores and told him to return to
Brownsville. Having spent the money on Nieto\'s arrest and another
\$10,000 of Garza\'s money \"partying\", Flores was afraid to return. As
a result Garza traveled to Vera Cruz. Flores lied to him about what had
happened to the money and told him that they had used the money to
purchase marihuana; however, when Flores left to pick up Escobar, Nieto
told Garza the truth. Garza struck Flores and made him tell the truth
(R. 3038-43, 3072).

Garza responded initially that he was going to kill all three of them:
Nieto and Flores for their actions; Escobar because he was an instigator
(R. 3044). His second response, made in the presence of all three, was
that he would let them work off their debt. Garza took all of them to a
restaurant (R. 3044-45). There, Garza told Flores and Nieto privately
that he was going to kill Escobar because he had no use for him (R.
3046-47, 3061-62, 3065). Afterwards, Garza and another person identified
only as \"Gil\" drove the trio to a secluded area. While the car was
moving, Garza shot Escobar three times and dragged his body in the sand
dunes (R. 3047-48, 3062-65). They later dumped the car and returned to
Brownsville (R. 3049).

It was later determined by United States and Mexican authorities that
Escobar had been killed around May 5-7, 1991 (R. 3296). Agent Robert
Garcia, who was in charge of the U.S. Customs, Merida, Yucutan, Mexico,
assisted in the investigation of Escobar\'s murder (R. 3295). He
contacted Escobar\'s brother, confirmed that the person identified in
the newspaper article was Escobar, that the brother had viewed
Escobar\'s body in the morgue, and that he had been shot several times
(R. 3296-97). On cross-examination, Agent Garcia testified that he
learned of no other suspects during the course of his investigation in
Mexico (R. 3300).

B. [Murder of Antonio Nieto]{.underline}

Israel Flores also testified as to Antonio Nieto\'s murder. Garza blamed
Flores for losing the money and Escobar\'s death. About a week later,
Garza ordered Flores to get rid of Nieto; if Flores refused, Garza
threatened to kill both of them (R. 3050-51, 3060, 3073-75). Per
Garza\'s instruction and plan, Flores and Raul Amaro told Nieto that
they were going to stay at Amaro\'s grandmother\'s house in Matamoros
instead of Juan\'s Villa Pancho ranch. They then drove Nieto to a
secluded country road around Matamoros and Flores shot him four times,
two of which were to the head (R. 3051-53, 3076-77). They reported the
events to Garza (R. 3054-55, 3152). Jesus Flores testified that Garza
told him that Israel had killed Nieto because \"Nieto had wasted
\[Garza\'s\] money over there in Mexico\" (R. 3152-53).

United States Customs Special Agent Robert Pineda testified that he
investigated the Nieto murder in Mexico in the fall of 1992 after
receiving information that Garza may have been involved (R. 3304,
3306-07, 3324). At the time he arrived, Nieto\'s body had been found by
the Mexican authorities but had been unidentified for 1 ½ years and had
been treated as an unsolved murder (R. 3306-07). Agent Pineda obtained
the Mexican police reports (R. 3328), and matched the case to Nieto
based on the shots (R. 3307). He also met with Nieto\'s parents, who
told him that Nieto had been missing for about 1½ years. Nieto\'s father
identified his son by photographs taken when the body was discovered. In
particular, he identified the tattoos on Nieto\'s skin (R. 3308, 3329;
G.Exh. 192 \[autopsy report \]; G.Exh. 193 \[translation\]). The
photographs of the crime scene, the body, and a key ring found on the
body that Nieto\'s father used to identify his son were introduced into
evidence as G.Exh. 195, 198, and 603 (R. 3310-12, 3327-28).

Nieto\'s body was exhumed from its Mexican grave and transported to the
United States (R. 3309). Agent Pineda personally viewed the body (R.
3325). The funeral director, Dr. Ramirez, specifically remembered
burying that particular body in Mexico as an unidentified body (R.
3309).

Dr. Marguerite DeWitt, the pathologist who performed the autopsy on
Nieto\'s body in the United States, testified at trial and was
cross-examined by counsel for Garza (R. 3079). Her report, G.Exh. 372,
was not introduced into evidence based on Garza\'s objection that the
witness \"can testify to the material on here." (R. 3082).

DeWitt testified on questioning by the court that she had been informed
by Detective Rolando Vasquez of the Brownsville Police Department (R.
3083, 3091) that Nieto had probably died in Brownsville and was then
buried in across the border in Matamoros, Mexico (R. 3084). An x-ray of
the body revealed two gunshot wounds to the head. Bullet fragments were
removed from the head and from the left side of the torso (R. 3086-89,
3093). Because the body soft tissue was in an advance stated of
decomposition, the pathologists was unable to determine whether there
were additional shots to the soft tissue (R. 3090, 3096).

Garza elicited on cross-examination the name of the detective to whom
the pathologist spoke in the Brownsville Police Department (R. 3091). On
further questioning, DeWitt testified that she had not seen any Mexican
autopsy report and did not know whether Mexican authorities even
performed an autopsy (R. 3092). She testified that there were no exit
wounds, indicating that the bullets stayed in the head (R. 3094). To
counsel\'s questioning whether there was "not enough force" for the
bullet to exit, DeWitt explained that it was common for the bone and
brain matter to absorb the force of the firing (R. 3094).

C. [Murder of Bernabe Sosa]{.underline}.

According to Israel Flores, Garza did not like his son-in-law Bernabe
Sosa because he had once brought a gun to Garza\'s house (R. 3055-56).
According to Jesus Flores, Garza also blamed Sosa for a January 1992
seizure in Houston (R. 3159-60). Sosa was apparently taken into custody
with the seizure but was released when two others apprehended were
detained (R. 3159­-60). Garza told Jesus Flores that something was fishy
and accused Sosa of trying to set him up (R . 3160). A couple of weeks
later, Garza told Jesus Flores that he wanted Sosa killed (R. 3161). In
the presence of co-conspirators Jesus Flores, Emilio (\"Biggie\")
Gonzalez, and Raul Amaro, Garza stated his plan was to take Sosa to
Matamoros under the pretext of looking at a landing strip and to kill
him there (R. 3162).

Garza instructed Jesus Flores to wait for him at Gonzalez\'s house (R.
3163). In accordance with Garza\'s plan, Garza contacted Sosa and had
Amaro drive across the border, Garza instructed Jesus Flores to cross
the Gateway International Bridge on foot and Emilio Gonzales to drive
across. Once on the Mexican side, Flores and Gonzales drove to the old
bridge. There, per Garza\'s instruction and plan, Sosa and the other
three got out of the car and started walking toward the supposed landing
strip. On Flores' prearranged cue, Gonzalez shot Sosa first with a gun
supplied by Garza. (Jesus Flores testified that he saw Garza give
Gonzalez the gun). Gonzalez's gun then jammed and Amaro shot Sosa two
more times (R. 3164-68). Flores testified that he believed Sosa was shot
in the head (R. 3168). Still following Garza's instruction, Gonzalez
then handcuffed Sosa to give the appearance that the Mexican Federales
had murdered Sosa (R. 3161-69). The assailants then met Garza at a place
called the "Toucan Lounge" and told him what had happened (R. 3169).
Jesus Flores testified that he participated in this murder to pay Garza
back for \$14,000 that he owed him and to keep from being one of
Garza\'s victims (R. 3169­70).

Dr. Eduardo Lopez-Vasquez, a forensic pathologist in the city of Rio
Bravo, Tamulipas, testified for the government that he performed an
autopsy on Sosa's body in January 1992 (R. 3245; G.Exh. 234 (autopsy
report); G.Exh. 235 (translation)). Sosa's body had three gunshot wounds
to the head and neck and powder burns (R. 3246-49). The caliber of the
gun used was not identified (R. 3250). The handcuffs were on Sosa when
the body was subsequently recovered (R. 3250, 3313-16). Agent Pineda
obtained photographs of the body and the recovery site from Mexico's
files and they were introduced into evidence as G.Exh. 238, 240 (R.
3314-16, 3327).

D. [Murder of Oscar Cantu]{.underline}.

Accomplice witnesses Israel Flores and Greg Srader testified as to Oscar
Cantu\'s murder. Oscar Cantu was one of Garza's pilots who, at Garza\'s
instruction, purchased marihuana and returned it to Matamoros (R. 3056,
3101, 3213). To make these purchases, Greg Srader would receive cash
from Garza, take it to a bank in Mexico, and wire the funds to Cantu in
Vera Cruz (R. 3102-03, 3109). On one such venture in 1991, Cantu
reported to Garza that he had been pulled over by the Mexican police,
tortured, and the \$40,000 - \$60,000 seized. Garza did not believe
Cantu's story. He believed instead that Cantu had \"ripped it off" and
stated that he was going to kill him (R. 3056-58, 3066, 3104-05).
Thereafter, Garza and Jesus Flores[^2] took Cantu on a trip to Mexico.
Cantu never returned (R. 3105, 3112). Srader testified that Garza
admitted to him that they had killed Cantu (R. 3058, 3106, 3114-15).

Srader was cross-examined by the defense, who elicited testimony that
Cantu was also a paid pilot for a drug trafficker named Medina (R.
3107). When pressed as to whether Cantu was working for Medina at the
time of his murder, Srader remained firm that he was working for Garza
but could not state with certainty that he wasn't also dealing with
Medina (R. 3113-14). Srader confirmed that he had sent money to Cantu on
several occasions at Garza's direction to wire transfer (R. 3107-09).
Srader overheard and was part of the conversations between Garza and
Cantu regarding the lost money. He confirmed that the money Cantu lost
("\[p\]robably around \$40,000 or \$60,000\") belonged to Garza (R.
3109-11). Cantu had claimed that the Mexican Federales had tortured him
by shocking him on his testicles. Srader testified on cross-examination
that Cantu had showed him the scars (R. 3111, 3114-16). He remained
unequivocal in his testimony that Garza had told him that he killed
Cantu (R. 3114-16).

Dr. Lopez-Vasquez also performed an autopsy on Cantu's body in April
1991 (R. 3237). His report was identified at trial as G.Exh. 184, and
admitted only as a trial aid (R. 3238-39). The translation was
identified as G.Exh. 185 (R. 3239). Cantu had been shot once in the head
at a range close enough to leave powder burns (R. 3240-43). The
pathologist was not able to determine the caliber of the weapon that
killed Cantu (R. 3243). Garza elicited on cross­examination that Dr.
Lopez did not have personal knowledge as to the identity of the body;
that he had been informed by the Mexican district attorney's office that
relatives had identified it (R. 3253-54, 3259).

United States Customs Special Agent Robert Pineda also testified that he
retrieved the Mexico records on the Cantu murder in Rio Bravo,
Tamaulipas. He met with the Ministerio Publico, a woman named Loera. He
determined that Mexican officials had an open file on the Cantu murder
as an unsolved murder and photographs of the body at the site of its
recovery from an irrigation canal (R. 3301-02, 3322). The Mexican
District Attorney identified the body as Cantu (R. 3304). According to
the information he received, Cantu had been shot and was found in an
irrigation canal. Agent Pineda obtained the crime scene photographs,
which were identified as G.Exh. 187-188.[^3] He also visited the crime
scene himself after the body was removed (R. 3302, 3323). At the time he
was sent to Mexico, United States officials suspected that Garza had
ordered the killings. Agent Pineda had been sent to Mexico to see if the
bodies had been discovered (R. 3304).

Based on this evidence, at the punishment phase the jury found beyond a
reasonable doubt the following non-statutory aggravating factors:

> 1\. JUAN RAUL GARZA intentionally engaged in conduct intending that
> OSCAR CANTU be killed and/or that lethal force be employed against
> OSCAR CANTU, which resulted in his death.
>
> 3\. JUAN RAUL GARZA committed the killing of OSCAR CANTU after
> substantial planning and premeditation.
>
> 4\. JUAN RAUL GARZA intentionally engaged in conduct intending that
> ANTONIO NIETO be killed and/or that lethal force be employed against
> ANTONIO NIETO, which resulted in his death.
>
> 5\. JUAN RAUL GARZA committed the killing of ANTONIO NIETO after s
>
> substantial planning and premeditation
>
> 6\. JUAN RAUL GARZA intentionally engaged in conduct intending that
> BERNABE SOSA be killed and/or that lethal force be employed against
> BERNABE SOSA, which resulted in his death.
>
> 7\. JUAN RAUL GARZA procured the killing of BERNABE SOSA by payment
> and/or promise of payment of something of pecuniary value.
>
> 8\. JUAN RAUL GARZA committed the killing of BERNABE SOSA after
> substantial planning and premeditation.
>
> 9\. JUAN RAuL GARZA intentionally killed DIANA FLORES VILLARREAL, in
> furtherance of a continuing criminal enterprise.
>
> 10\. JUAN RAUL GARZA intentionally engaged in conduct intending that
> DIANA FLORES VILLARREAL be killed and/or that lethal force be employed
> against DIANA FLORES VILLARREAL, which resulted in her death.
>
> 11\. JUAN RAUL GARZA intentionally killed FERNANDO ESCOBAR-GARCIA in
> furtherance of a continuing criminal enterprise.
>
> 12\. JUAN RAUL GARZA committed the killing of FERNANDO ESCOBAR-GARCIA
> after substantial planning and premeditation.

The jury failed to find the non-statutory aggravating factor that Juan
Raul Garza procured the killing of Oscar Cantu by payment *and/or*
promise of payment of something of pecuniary value.

III\. [Appeals]{.underline}

Although Garza raised his due-process challenge on direct appeal, the
Fifth Circuit Court of Appeals did not address his challenge in denying
his appeal. In his motion to vacate his sentence under 28 U.S.C. 2255,
he claimed that by failing to address his claim, the Court of Appeals
violated his Eighth Amendment right to meaningful appellate review. The
Court rejected this claim as well as his claim that he was denied due
process by the introduction of evidence relating to the unadjudicated
murders committed on Mexican soil. The Court of Appeals reasoned:

> Under *Brady v. Maryland*, 373 U.S. 83, 83 S.Ct. 1194 (1963), the
> Government is required to turn over to a defendant any exculpatory or
> impeachment evidence in the Government\'s possession. Here, the
> Government turned over to Garza every document that it received from
> Mexico, including the police reports, investigative reports, and
> certified translations of the autopsy reports. Garza was given express
> notice that the Government intended to rely on the extraneous murders
> at sentencing, was provided full pretrial discovery of all evidence in
> the Government\'s possession, and was given the opportunity to
> cross‑examine all witnesses presented by the Government at sentencing.
> There is no question, indeed Garza does not even contest, that the
> Government satisfied its duty under Brady.
>
> The Government is under no obligation to conduct a defendant\'s
> investigation or to make a defendant\'s case for him. *United States
> v. Aubin*, 87 F.3d 141, 148 (5th Cir.1996). Vague allegations of
> unidentified favorable witnesses and unspecified exculpatory evidence
> simply will not suffice to show a violation of due process. Garza has
> therefore failed to make a substantial showing that his right to due
> process of law was denied.

*United States v. Garza*, 165 F.3d at 315.

IV\. [Inter-American Commission]{.underline}

On December 20, 1999, petitioner filed a petition with the
Inter-American Commission on Human Rights (Inter-American Commission)
alleging that his rights under the American Declaration of the Rights
and Duties of Man (American Declaration), the Organization of American
States Charter, and international law were violated by the introduction
at the capital punishment phase of evidence of four unadjudicated
murders committed by Garza or at his behest on Mexican soil. Although
couched in terms of the Declaration and international law, the complaint
and underlying analysis presented to the Commission paralleled the
complaint presented on direct appeal and raised again in his motion to
vacate sentence under section 2255. On April 4, 2001, the Commission
released a report in which it concluded that the United States was
responsible for violations of Articles I, XVIII, and XXVI of the
American Declaration and "recommended" that the United States "provide
Mr. Garza with an effective remedy, which includes commutation of
sentence." Report at 36.

The provisions of American Declaration at issue are:

> [Right to life, liberty, and person security]{.underline}.
>
> Article I. Every human being has the right to life, liberty, and the
> security of person.
>
> [Right to a fair trial]{.underline}.
>
> Article XVIII. Every person may resort to the courts to ensure respect
> for his legal rights. There should likewise be available to him a
> simple, brief procedure whereby the courts will protect him from acts
> of authority that, to his prejudice, violate any of his fundamental
> rights.
>
> [Right to due process of law]{.underline}.
>
> Article XXVI. Every person is presumed to be innocent until proven
> guilty.
>
> Every person accused of an offense has the right to be given an
> impartial and public hearing, and to be tried by courts previously
> established in accordance with pre-existing laws, and not to receive
> cruel and unusual punishment.

Inter-American Commission Report, April 4, 2001, at pp 25, 28.

In his § 2241 petition for writ of habeas corpus, Garza asked the
district court to give effect to the decision of the Inter-American
Commission by vacating or commuting his death sentences. Garza argued
that, because a § 2255 motion was an inadequate or ineffective remedy to
redress the purported violations, his claim fell within the ambit of the
¶ 8 savings clause and was thus cognizable under § 2241. The decision of
the court dismissing Garza's petition for lack of jurisdiction was
founded on two distinct theories: first, the court considered the
possibility that, under the analysis of *Stewart v. Martinez-Villareal*,
523 U.S. 637, 118 S.Ct. 1618 (1998), the claim did not present a true
successive application and, thus, would be cognizable in the district of
conviction under 2255; and second, the court concluded that Garza's
claim fell outside the ambit of the § 2255 ¶ 8 savings clause exception
and thus could only be initiated in the circuit court of appeals for the
district of conviction.

**SUMMARY OF ARGUMENT**

**ARGUMENT**

Garza continues to argue, as he did in the court below, that a federal
court must give effect to the conclusion of the Inter-American
Commission by vacating or commuting his death sentences. Although the
court below speculated that the district court of conviction could
extend the analysis of *Martinez-Villareal* to afford Garza review of
his claim as if it had been raised in an original habeas petition, the
government finds no authority or rationale for extending
*Martinez-Villareal* to the circumstances at issue here. What is
dispositive here is that the court below correctly determined that
Garza's claim does not come within the § 2255 savings clause exception
allowing a prisoner to file an application for writ of habeas corpus
where the \"remedy by motion is inadequate or ineffective to test the
legality of his detention\" and, as a consequence, that it did not have
jurisdiction to consider his claim.

As an initial matter, Garza's characterization of the government's
response in the court below is at best misleading. According to Garza,
in the court below he \"set forth three separate grounds for granting
relief, based on the Commission Report: (1) violations of the OAS
Charter, (2) violations of the American Declaration; and (3) violations
of international law.\" Memorandum at 4. Contrary to Garza's assertions,
the Government did not concede any of these purported violations.
Rather, the government focused on the Inter-American Commission's
authority, which is limited to making recommendations (it cannot issue
binding decisions), and the American Declaration, which is not a treaty,
much less one that has been signed and ratified by the United States.
The government's focus reflects the fact that the purported violations
of the OAS Charter and international law identified by Garza depend
entirely on the Commission's non-existent authority to issue binding
interpretations of the American Declaration and does not reflect a
concession of OAS Charter or international law violations. Indeed, that
there is no independent violation of the OAS Charter is made clear by
the fact that Garza fails entirely to identify the violated OAS
provision. A state does not violate the Charter merely because it
ignores a recommendation of a subsidiary body, the Inter-American
Commission, that has no authority to make binding orders. Garza has not
and cannot identify a provision of the Charter that renders the
recommendations of the Committee binding. In any event, because the
jurisdictional and procedural hurdles to consideration of Garza's claims
are insurmountable, Garza's mischaracterizations at best serve only to
cloud their consideration.

1.  The Court's Analysis in Martinez-Villareal is Inapplicable Here.

In *Martinez-Villareal*, the Supreme Court was required to determine the
status of a *Ford* \[*v. Wainwright*, 477 U.S. 399, 106 S.Ct. 2595
(1986)\] claim of incompetence to be executed that was included in a
death-sentenced inmate's original petition but dismissed as premature by
the district court. The Court concluded that the subsequently reasserted
*Ford* claim was not foreclosed under the rules applicable to successive
petitions. The Court reasoned that \"\[t\]here was only one application
for habeas relief, and the District Court ruled (or should have ruled)
on each claim at the time it became ripe,\" but that the *Ford* claim
had \"not been ripe for resolution until \[the setting of an execution
date\].\" *Martinez-Villareal*, 523 U.S. at 643, 645, 118 S.Ct. at
1621-22. The Court analogized the dismissal of the *Ford* claim as
premature to a dismissal for failure to exhaust state remedies--both
dismissals are for \"technical procedural reasons\" that do not include
adjudication of the claims and should not be construed to \"bar the
prisoner from ever obtaining habeas review.\" *Martinez-Villareal*, 523
U.S. at 645, 118 S.Ct. at 1622; *see also* *O'Connor v. United States*,
196 F.3d 252, 254 (7^th^ Cir. 1998) (\"The Supreme Court has clearly
held that when a motion is dismissed for 'technical procedural reasons'
and 'the habeas petitioner does not receive an adjudication of his
claim,' a subsequent petition is not 'a second or successive motion'
under the AEDPA.)

The difference between the circumstances presented by Garza's case and
those at issue in *Martinez-Villareal* are manifest. Unlike the *Ford*
claim, which was not ripe until execution was imminent, Garza's claim
pertains to a purported trial error--that his trial was not conducted in
accordance with applicable rules--and would have been ripe for review if
raised either on direct appeal or 2255 review. Although Garza claimed on
direct appeal and again in 2255 review that the government's reliance on
the unadjudicated murders on Mexican soil violated the United States
Constitutional guarantee of due process, he did not argue that the
reliance also violated the American Declaration, the OAS Charter, or
international law.

In sum, in contrast to the claim in *Martinez-Villareal*, which was
timely raised but not ripe for adjudication, Garza's claim wasn't timely
raised and would have been ripe for adjudication if it had been
presented at trial, direct appeal, or by a motion to vacate sentence..

2.  Garza's claim has to do with the conduct of his trial not with the
    manner of his execution.

Garza first tries to bring his claim within the ambit of § 2241 review
by mischaracterizing it as pertaining to the carrying out of his
sentence. Garza's international law-OAS Charter-American Declaration
based claim has no more to do with carrying out his execution than any
other claim proffered as a basis for invalidating a sentence that is
properly brought via a § 2255 motion attacking sentence. Indeed,
challenges to methods of execution are routinely and appropriately
reviewed as part of death-sentenced inmates' federal habeas applications
and are subjected to the rules applicable to § 2254 review, even when
those challenges are denominated as challenges to the circumstances of
confinement under 42 U.S.C. § 1983. *Felder v. Johnson*, 180 F.3d 206,
215 (5^th^ Cir. 1999), *cert. denied*, \*\*\* ("Several circuits have
applied habeas requirements to suits challenging methods of execution,
even when they are denominated civil rights claims.), *citing Williams
v. Hopkins*, 130 F.3d 333 (8th Cir.), *cert. denied*, 522 U.S. 1010, 118
S.Ct. 595 (1997); *McQueen v. Patton (In re Sapp)*, 118 F.3d 460 (6th
Cir.), *cert. denied*, 521 U.S. 1130, 117 S.Ct. 2536, (1997); *Felker v.
Turpin*, 101 F.3d 95 (11th Cir.1996). Garza's challenge identifies
purported error in the sentencing hearing, not in the carrying out of
the sentence, and can only properly be brought via a motion attacking
sentence under § 2255.

3.  Garza's claim were fully available as the basis for an objection at
    trial and to be raised on direct appeal or in his first § 2255
    motion.

Garza apparently contends that the claim was not ripe until after the
Inter-American Commission entered its report, an understanding that
would deprive the courts of the United States in the first instance of
the opportunity to correct perceived error in the trial process. Even if
this Court were to accept the untenable position that the Inter-American
Commission sits as some sort of ultimate dispositor of the integrity of
criminal convictions under international law, that would not mean that
the trial court, the court of appeals, and the United States Supreme
Court should be denied the first opportunity to insure compliance with
applicable trial rules. Of course, the Inter-American Commission does
not constitute and has never been given the authority to act as a third
and ultimate court of review following the Court of Appeals and United
States Supreme Court.

Garza cannot claim that the basis for an objection was unavailable at
the time of trial. If he believed it was incumbent upon the trial court
to conduct his trial in accordance with perceived requirements of the
American Declaration, the OAS Charter, and international law, then it
was accordingly incumbent upon him to make a corresponding trial
objection. (In any event, following the enactment of the Anti-terrorism
and Effective Death Penalty Act (AEDPA), the unavailability of a claim
no longer provides a basis for evading the limitations placed on second
or successive motions. Rather, cognizable claims in successive petitions
are those that fall within the 2255 ¶ 8 categories.)

4.  Garza's claim is not cognizable under 28 U.S.C. § 2241

First, Garza's claims do not fall within the scope of review available
under 28 U.S.C. § 2241, which is normally limited to claims concerning
the execution of sentence not the validity of the sentence. Further,
Garza's claims also fall outside the scope of the exception encompassed
by § 2255\'s savings clause, which allows claims for relief to proceed
under the auspices of § 2241 if appears that the remedy by § 2255 motion
is inadequate or ineffective to test the legality of his detention.

Section 2241 review is normally limited to motions seeking relief on
grounds concerning the execution of sentence, such as a claim to be
entitled to a less restrictive form of custody, and does not extend to
claims such as Garza's that challenge the validity of his sentence. *See
Valona v. United States*, 138 F.3d 693, 694 (7^th^ Cir. 1998). The
solitary exception to this rule exists for claims that satisfy the
savings clause of § 2255 ¶5, which allows an application for habeas
relief to proceed under § 2241 if "the remedy by motion is inadequate or
ineffective to test the legality of his confinement." 28 U.S.C. 2255 ¶
5. The savings clause encompasses a very narrow exception, however, and
does not come into play merely because a petitioner's claim is
foreclosed under the rules applicable to § 2255 review.

Garza incorrectly relies on a series of cases from various Circuit
Courts of Appeals in which, pursuant to the savings clause, relief has
been afforded under § 2241 to claims based on *Bailey v. United States*,
516 U.S. 137 (1995), that would otherwise be foreclosed by the
limitations on successive motions of § 2255 ¶ 5. Under Seventh Circuit
precedent, however, to come within the savings clause exception
applicable to *Bailey* claims, a federal prisoner is permitted to seek
habeas relief only if (1) "he had no reasonable opportunity to obtain
earlier judicial correction of a fundamental defect in his conviction or
sentence because the law changed after his first § 2255 motion," (2)
"the change of law has been made retroactive by the Supreme Court, as
the Court has now done for *Bailey* errors by its *Bousley* \[*v. United
States*, 523 U.S. 614 (1998)\] decision," (3) "the change \[\] eludes
the permission in section 2255 for successive motions," and (4) the
"change in law" is not the "difference between the law in the circuit in
which the prisoner was sentenced and the law in the circuit in which he
is incarcerated." *In re Davenport*, 147 F.3d 605, 611-12 (7^th^ Cir.
1998).

The savings clause exception delineated in *Davenport* is inapplicable
here. First, it is clear that Garza relies on a new rule that has not
been made retroactively applicable by the Supreme Court. He does not
suggest that the Court has held that the American Declaration confers
rights enforceable by suppression of evidence in a federal capital
sentencing proceeding. Moreover, as delineated *infra*, a failure by the
trial court or any subsequent court to act in accordance with or give
effect to the recommendation of the Inter-American Commission would not
constitute a fundamental defect in the conviction or sentence resulting
in a miscarriage of justice.

Garza's reliance on *Reyes-Requena v. United States*, 243 F.3d 893
(5^th^ Cir. 2001) is unavailing. First, it is the law of the § 2241
court in the district of incarceration that is controlling regarding
whether he can avail himself of the § 2255 savings clause exception, not
the law of the circuit court of appeals for the district of conviction.
*Gray Bey v. United States*, 209 F.3d 986 (7^th^ Cir. 2000). In any
event, the savings clause exception articulated by the Fifth Circuit in
*Reyes-Requena* requires that the claim be based on a retroactively
applicable Supreme Court decision which establishes that the petitioner
may have been convicted of a nonexistent offense. *Id*. at 904. Such
clearly is not the case here, and thus there is no basis upon which
Garza can validly argue that he comes within the savings clause
exception.

[^1]: In addition, on May 7, 2001, Garza filed a motion for
    authorization to file a successive motion under § 2255. The
    government filed its opposition on May 22, 2001 and the Fifth
    Circuit Court of Appeals denied leave to file a successive motion on
    May 30, 2001.

[^2]: On examination by the court, Jesus Flores denied any knowledge as
    to what had happened to Cantu (28 R. 3213).

[^3]: G.Exh. 187, which identified the wounds on the body was not
    introduced into evidence (29 R.3305). The court, however, did permit
    G.Exh. 188, which showed body at the recovery site (29 R. 3306).