PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANGEL FRANCISCO BREARD,

Petitioner-Appellant,

v.

SAMUEL V. PRUETT, Warden,

Mecklenburg Correctional Center,

No. 96-25

Respondent-Appellee.

THE HUMAN RIGHTS COMMITTEE OF

THE AMERICAN BRANCH OF THE

INTERNATIONAL LAW ASSOCIATION,

Amicus Curiae.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-96-366-3)

Argued: October 1, 1997

Decided: January 22, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in

which Judge Williams joined. Senior Judge Butzner wrote a concurring opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Gray Broaddus, MCGUIRE, WOODS, BATTLE

& BOOTHE, L.L.P., Richmond, Virginia, for Appellant. Donald
Richard Curry, Senior Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON

BRIEF: Alexander H. Slaughter, Dorothy C. Young, MCGUIRE,

WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia;

Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION

RESOURCE CENTER, Richmond, Virginia, for Appellant. Jeffrey L.

Bleich, San Francisco, California, for Amicus Curiae.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Following a jury trial in the Circuit Court for Arlington County,

Virginia, Angel Francisco Breard, a citizen of both Argentina and

Paraguay, was convicted and sentenced to death for the murder of

Ruth Dickie. He now appeals the district court's denial of his petition

for writ of habeas corpus. See 28 U.S.C.§ 2254. We affirm.

I

In February 1992, Ruth Dickie resided alone at 4410 North Fourth

Road, Apartment 3, in Arlington County, Virginia. At about 10:30 or

10:45 p.m. on February 17, 1992, Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly

in the hall. According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, Isch called Joseph King, the maintenance person for the

apartment complex. Upon arriving at Dickie's apartment, King

knocked on the door and heard a noise that sounded like someone was

being dragged across the floor. After receiving no response to his

knocking, King called the police.

When the police arrived, they entered Dickie's apartment with a

master key that King provided. Upon entering the apartment, the

police found Dickie lying on the floor. She was on her back, naked

from the waist down, and her legs were spread. She was bleeding and

did not appear to be breathing. The police observed body fluid on

Dickie's pubic hair and on her inner thigh. Hairs were found clutched

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in her bloodstained hands and on her left leg. Dickie's underpants had

been torn from her body. A telephone receiver located near her head

was covered with blood.

An autopsy revealed that Dickie had sustained five stab wounds to

the neck; two of which would have caused her death. Foreign hairs

found on Dickie's body were determined to be identical in all microscopic characteristics to hair samples taken from Breard. Hairs found

clutched in Dickie's hands were Caucasian hairs microscopically similar to Dickie's own head hair and bore evidence that they had been

pulled from her head by the roots. Semen found on Dickie's pubic

hair matched Breard's enzyme typing in all respects, and his DNA

profile matched the DNA profile of the semen found on Dickie's

body.

Breard was indicted on charges of attempted rape and capital murder. Following a jury trial, he was convicted of both charges. The jury

fixed Breard's punishment for the attempted rape at ten years' imprisonment and a $100,000 fine. In the bifurcated proceeding, the jury

heard evidence in aggravation and mitigation of the capital murder

charge. Based upon findings of Breard's future dangerousness and the

vileness of the crime, the jury fixed Breard's sentence at death. The

trial court sentenced Breard in accordance with the jury's verdicts.

Breard appealed his convictions and sentences to the Supreme

Court of Virginia, and that court affirmed. See Breard v.

Commonwealth, 445 S.E.2d 670 (Va. 1994). On October 31, 1994,

the United States Supreme Court denied Breard's petition for a writ

of certiorari. See Breard v. Virginia, 513 U.S. 971 (1994).

On May 1, 1995, Breard sought state collateral relief in the Circuit

Court for Arlington County by filing a petition for writ of habeas corpus. On June 29, 1995, the circuit court dismissed the petition. On

January 17, 1996, the Supreme Court of Virginia refused Breard's

petition for appeal.

Breard then sought federal collateral relief in the United States District Court for the Eastern District of Virginia by filing a petition for

writ of habeas corpus on August 30, 1996. On November 27, 1996,

the district court denied relief. See Breard v. Netherland, 949 F. Supp.

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1255 (E.D. Va. 1996). On December 24, 1996, Breard filed a timely

notice of appeal. On April 7, 1997, the district court granted Breard's

application for a certificate of appealability as to all issues raised by

Breard in his application. See 28 U.S.C.§ 2253; Fed. R. App. P. 22.

II

A

The Antiterrorism and Effective Death Penalty Act ("AEDPA") of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), amended, among

other things, 28 U.S.C. § 2244 and §§ 2253-2255, which are parts of

the Chapter 153 provisions that govern all habeas proceedings in federal courts. The AEDPA, which became effective on April 24, 1996,

also created a new Chapter 154, applicable to habeas proceedings

against a state in capital cases. The new Chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for

the appointment and compensation of competent counsel. In Lindh v.

Murphy, 117 S. Ct. 2059 (1997), the Supreme Court held that

§ 107(c) of the AEDPA, which explicitly made new Chapter 154

applicable to cases pending on the effective date of the AEDPA, created a "negative implication . . . that the new provisions of chapter

153 generally apply only to cases filed after the Act became effective." Id. at 2068. Thus, under Lindh , if a habeas petition was filed

before April 24, 1996, the pre-AEDPA habeas standards apply. See

Howard v. Moore, 1997 WL 755428, at *1 (4th Cir. Dec. 9, 1997) (en

banc) ("Howard filed his habeas petition in the district court prior to

April 26, 1996, the effective date of the AEDPA. We, therefore,

review Howard's claims under pre-AEDPA law." (footnote omitted)).

For habeas petitions filed after April 24, 1996, then, the Chapter 153

provisions apply, see Murphy v. Netherland, 116 F.3d 97, 99-100 &

n.1 (4th Cir. 1997) (applying amended § 2253 in case where state

prisoner filed federal habeas petition after the effective date of the

AEDPA), and the Chapter 154 provisions apply if the state satisfies

the "opt-in" provisions.

Breard filed his federal habeas petition on August 30, 1996.

Accordingly, the Chapter 153 provisions apply. See Howard, 1997

WL 755428, at *1. With respect to the Chapter 154 provisions, the

district court held that they did not apply because the Commonwealth

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of Virginia did not satisfy the "opt-in" provisions of the AEDPA. See

Breard v. Netherland, 949 F. Supp. at 1262. Because the Commonwealth of Virginia has not appealed this ruling and the record is not

developed on this point, we decline to address whether the Commonwealth of Virginia's mechanism for the appointment, compensation,

and payment of reasonable litigation expenses of competent counsel

satisfies the "opt-in" provisions of the AEDPA. Cf. Bennett v.

Angelone, 92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether

the procedures established by the Commonwealth of Virginia for the

appointment, compensation, and payment of reasonable litigation

expenses of competent counsel satisfy the "opt-in" requirements,

which would render those provisions applicable to indigent Virginia

prisoners seeking federal habeas relief from capital sentences if an

initial state habeas petition was filed after July 1, 1992), cert. denied,

117 S. Ct. 503 (1996). However, we are confident that the "opt-in"

provisions are of no help to Breard.

B

Initially, Breard contends that his convictions and sentences should

be vacated because, at the time of his arrest, the Arlington County

authorities failed to notify him that, as a foreign national, he had the

right to contact the Consulate of Argentina or the Consulate of Paraguay pursuant to the Vienna Convention on Consular Relations, see

21 U.S.T. 77. The Commonwealth of Virginia argues that Breard did

not raise his Vienna Convention claim in state court and thus failed

to exhaust available state remedies. Furthermore, because Virginia

law would now bar this claim, the Commonwealth of Virginia argues

that Breard has procedurally defaulted this claim for purposes of federal habeas review. The district court held that, because Breard had

never raised this claim in state court, the claim was procedurally

defaulted and that Breard failed to establish cause to excuse the

default. See Breard v. Netherland, 949 F. Supp. at 1263. Breard's failure to raise this issue in state court brings into play the principles of

exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial

and sentencing, a state prisoner must exhaust all available state remedies before he can apply for federal habeas relief. See Matthews v.

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Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, 118 S. Ct. 102

(1997); see also 28 U.S.C. § 2254(b). To exhaust state remedies, a

habeas petitioner must fairly present the substance of his claim to the

state's highest court. See Matthews, 105 F.3d at 911. The exhaustion

requirement is not satisfied if the petitioner presents new legal theories or factual claims for the first time in his federal habeas petition.

See id. The burden of proving that a claim is exhausted lies with the

habeas petitioner. See Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.

1994).

A distinct but related limit on the scope of federal habeas review

is the doctrine of procedural default. If a state court clearly and

expressly bases its dismissal of a habeas petitioner's claim on a state

procedural rule, and that procedural rule provides an independent and

adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim. See Coleman v. Thompson,

501 U.S. 722, 731-32 (1991). A procedural default also occurs when

a habeas petitioner fails to exhaust available state remedies and "the

court to which the petitioner would be required to present his claims

in order to meet the exhaustion requirement would now find the

claims procedurally barred." Id. at 735 n.1.

Under Virginia law, "a petitioner is barred from raising any claim

in a successive petition if the facts as to that claim were either known

or available to petitioner at the time of his original petition." Hoke v.

Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir.) (internal quotes omitted), cert. denied, 117 S. Ct. 630 (1996); Va. Code Ann. § 8.01-

654(B)(2) ("No writ [of habeas corpus ad subjeciendum] shall be

granted on the basis of any allegation the facts of which petitioner had

knowledge at the time of filing any previous petition."). Breard contends that he had no reasonable basis for raising his Vienna Convention claim until April 1996 when the Fifth Circuit decided Faulder v.

Johnson, 81 F.3d 515 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996).

In that case, the court held that an arrestee's rights under the Vienna

Convention were violated when Texas officials failed to inform the

arrestee of his right to contact the Canadian Consulate. Id. at 520.

Breard further maintains that he could not have raised his Vienna

Convention claim in his state habeas petition because the Commonwealth of Virginia failed to advise him of his rights under the Vienna

Convention. These allegations, however, are inadequate to demon-

 6
strate that the facts upon which Breard bases his Vienna Convention

claim were unavailable to him when he filed his state habeas petition.

In Murphy, we rejected a state habeas petitioner's contention that

the novelty of a Vienna Convention claim and the state's failure to

advise the petitioner of his rights under the Vienna Convention could

constitute cause for the failure to raise the claim in state court. See

116 F.3d at 100. In reaching this conclusion, we noted that a reasonably diligent attorney would have discovered the applicability of the

Vienna Convention to a foreign national defendant and that in previous cases claims under the Vienna Convention have been raised:

The Vienna Convention, which is codified at 21 U.S.T. 77,

has been in effect since 1969, and a reasonably diligent

search by Murphy's counsel, who was retained shortly after

Murphy's arrest and who represented Murphy throughout

the state court proceedings, would have revealed the existence and applicability (if any) of the Vienna Convention.

Treaties are one of the first sources that would be consulted

by a reasonably diligent counsel representing a foreign

national. Counsel in other cases, both before and since Murphy's state proceedings, apparently had and have had no difficulty whatsoever learning of the Convention. See, e.g.,

Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996);

Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993); Mami

v. Van Zandt, No. 89 Civ. 0554, 1989 WL 52308 (S.D.N.Y.

May 9, 1989); United States v. Rangel-Gonzales , 617 F.2d

529, 530 (9th Cir. 1980); United States v. Calderon-Medina,

591 F.2d 529 (9th Cir. 1979); United States v. Vega-Mejia,

611 F.2d 751, 752 (9th Cir. 1979).

Id.

Murphy forecloses any argument that Breard could not have raised

his Vienna Convention claim at the time he filed his initial state

habeas petition in May 1995. Accordingly, Breard's Vienna Convention claim would be procedurally defaulted if he attempted to raise it

in state court at this time. Having reached this conclusion, we can

only address Breard's defaulted Vienna Convention claim if he "can

demonstrate cause for the default and actual prejudice as a result of

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the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice."

Coleman, 501 U.S. at 750.

In order to demonstrate "cause" for the default, Breard must establish "that some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court at the appropriate time.

Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Murphy, 116

F.3d at 100 (applying Murray and finding that petitioner failed to

establish cause to excuse the default of his Vienna Convention claim).

For the same reasons discussed above, Breard asserts that the factual

basis for his Vienna Convention claim was unavailable to him at the

time he filed his state habeas petition and, therefore, he has established cause. But, under Murphy, Breard's showing is insufficient to

allow this court to conclude that the factual basis for his Vienna Convention claim was unavailable. Consequently, there is no cause for the

procedural default. Accordingly, we do not discuss the issue of prejudice. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995)

(noting that once court finds the absence of cause, court should not

consider the issue of prejudice to avoid reaching alternative holdings),

cert. denied, 116 S. Ct. 1575 (1996).

Finally, we find it unnecessary to address the issue of whether the

AEDPA abrogated the "miscarriage of justice" exception to the procedural default doctrine. Assuming arguendo that the AEDPA has not

eliminated the miscarriage of justice exception articulated in Murray,

477 U.S. at 495-96 (miscarriage of justice exception available to those

who are actually innocent), and Sawyer v. Whitley, 505 U.S. 333, 350

(1992) (miscarriage of justice exception available to those who are

actually innocent of the death penalty, i.e., those habeas petitioners

who prove by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty), no miscarriage of justice occurred here. In

no set of circumstances has Breard made a showing that he is actually

innocent of the offense he committed, see Murray , 477 U.S. at 495-

96, or innocent of the death penalty in the sense that no reasonable

juror would have found him eligible for the death penalty, see

Sawyer, 505 U.S. at 350. Accordingly, Breard is entitled to no relief

on his Vienna Convention claim.

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C

Breard also contends that his death sentence violates Furman v.

Georgia, 408 U.S. 238 (1972), and its progeny. In asserting this

claim, Breard argues that: (1) given the prosecutor's alleged offer to

forego the death penalty if Breard would plead guilty, the prosecutor

violated his constitutional rights by seeking and obtaining a death sentence once Breard insisted upon pleading not guilty; (2) the Commonwealth of Virginia imposes the death penalty arbitrarily in capital

murder cases; and (3) his death sentence is unconstitutionally disproportionate. The first two claims mentioned above were never raised

in state court. The remaining claim was raised on direct appeal, but

only as a state law claim, and on the appeal from the denial of state

habeas relief the Virginia Supreme Court found this claim procedurally barred under the rule of Slayton v. Parrigan, 205 S.E.2d 680 (Va.

1974) (holding that issues not properly raised on direct appeal will not

be considered on state collateral review). Because Breard has not

established cause for the obvious procedural default of these claims

or that a miscarriage of justice would result by our failure to consider

any one of these claims, we cannot address the merits.

D

Finally, Breard argues that the aggravating circumstances instructions given by the trial court are unconstitutionally vague. This claim

is not procedurally barred because the Supreme Court of Virginia

rejected it on direct appeal. See Breard v. Commonwealth, 445 S.E.2d

at 675. In his brief, Breard concedes that we have upheld similar

instructions in the recent cases of Bennett, 92 F.3d at 1345 (rejecting

vagueness challenge to the Commonwealth of Virginia's vileness

aggravating circumstance), and Spencer v. Murray , 5 F.3d 758, 764-

65 (4th Cir. 1993) (rejecting vagueness attack on the future dangerousness aggravator). Furthermore, Breard states that he is raising this

claim on appeal only "to preserve this claim for future review should

such be necessary." See Petitioner's Br. at 37. As a panel of this court,

we are bound by Bennett and Spencer, see Jones v. Angelone, 94 F.3d

900, 905 (4th Cir. 1996) (one panel of this court may not overrule

another panel's decision); therefore, we must reject Breard's attack on

the constitutionality of the aggravating circumstances instructions

given by the trial court.

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III

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

BUTZNER, Senior Circuit Judge, concurring:

I concur in the denial of the relief requested by Angel Francisco

Breard. I write separately to emphasize the importance of the Vienna

Convention.

I

The Vienna Convention facilitates "friendly relations among

nations, irrespective of their differing constitutional and social systems." The Vienna Convention on Consular Relations, opened for

signature Apr. 24, 1963, 21 U.S.T. 78, 79 (ratified by the United

States Nov. 12, 1969). Article 36, provides:

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

* * *

(b) if he so requests, the competent authorities of

the receiving State shall, without delay, inform the

consular post of the sending State if, within its

consular district, a national of that State is arrested

or committed to prison or to custody pending trial

or is detained in any other manner. Any communication addressed to the consular post by the person

arrested, in prison, custody or detention shall also

be forwarded by the said authorities without delay.

The said authorities shall inform the person concerned without delay of his rights under this subparagraph;

 10
(c) consular officers shall have the right to visit a

national of the sending State who is in prison, custody or detention, to converse and correspond with

him and to arrange for his legal representation.

They shall also have the right to visit any national

of the sending State who is in prison, custody or

detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain

from taking action on behalf of a national who is

in prison, custody or detention if he expressly

opposes such action.

2. The rights referred to in paragraph 1 of this Article shall

be exercised in conformity with the laws and regulations of

the receiving State, subject to the proviso, however, that the

said laws and regulations must enable full effect to be given

to the purposes for which the rights accorded under this

Article are intended. Id. at 101.

II

The Vienna Convention is a self executing treaty--it provides

rights to individuals rather than merely setting out the obligations of

signatories. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996)

(assuming the same). The text emphasizes that the right of consular

notice and assistance is the citizen's. The language is mandatory and

unequivocal, evidencing the signatories' recognition of the importance of consular access for persons detained by a foreign government.

The provisions of the Vienna Convention have the dignity of an act

of Congress and are binding upon the states. See Head Money Cases,

112 U.S. 580, 598-99 (1884). The Supremacy Clause mandates that

rights conferred by a treaty be honored by the states. United States

Const. art. VI, cl. 2. The provisions of the Convention should be

implemented before trial when they can be appropriately addressed.

Collateral review is too limited to afford an adequate remedy.

III

The protections afforded by the Vienna Convention go far beyond

Breard's case. United States citizens are scattered about the world--

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as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and

safety are seriously endangered if state officials fail to honor the

Vienna Convention and other nations follow their example. Public

officials should bear in mind that "international law is founded upon

mutuality and reciprocity . . . ." Hilton v. Guyot, 159 U.S. 113, 228

(1895).

The State Department has advised the states, including Virginia, of

their obligation to inform foreign nationals of their rights under the

Vienna Convention. It has advised states to facilitate consular access

to foreign detainees. Prosecutors and defense attorneys alike should

be aware of the rights conferred by the treaty and their responsibilities

under it. The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty

and all states of this nation.

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