United States Court of Appeals

Fifth Circuit



## FILED

August 17, 2005

Charles R. Fulbruge III

Clerk 

## In the 

# United States Court of Appeals

for the Fifth Circuit

_______________



### m 04-70047

_______________



### I GNACIO 

### G OMEZ



### ,

Petitioner-Appellant,

VERSUS



### D OUG 

### D RETKE



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, C ORRECTIONAL I NSTITUTIONS D IVISION

,



### Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________

Before D AVIS , S MITH

, and D ENNIS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

Ignacio Gomez, convicted in state court of

capital murder, applied to this court for a

certificate of appealability (“COA”) after the

district c o urt had rejected his petition for a

writ of habeas corpus. Gomez v. Dretke , No.

EP-02-CV-267 (W.D. Tex. Sept. 30, 2004). After bringing his COA app l ication, Gomez

filed a “Motion To Stay and Abate Proceedings.” We grant that motion and thereby stay

our consideration of

Go mez’s application for

COA pending the exhaustion of Gomez’s state

court proceedings.

I.

The issues in Gomez’s application for COA

involve (1) claim s related to Texas’s lack of

jury instructions on parole possibilities ( i.e.

, an2

al l eged Sixth Amendment Compulsory Process

Clause viola t ion); (2) claims surrounding the

a llegedly improper exclusion of several ju r y

veniremembers, as well as an ineffective assistance claim complaining of his lawyer’s failure

to object to the exc lusio n of some of those

veniremembers; and (3) a claim that an alleged

violation of the Vienna Conventio n on Consular Relations (“VCCR”) 1 deprived him of a

fair trial.

With respect to the thi

r d claim, Gomez

argues that the VCCR was violated by the

admission of his confession that was obtained

without first advising him o f his treaty-based

right to the assistance of the Mexican consulate. 2 That VCCR claim presents significant

procedural difficulties and ultimately convinces

us to grant a stay

.

A.

After a panel of this court denied a COA in

Medellin v. Dretke

, 371 F.3d 270, 279-80 (5th

Cir. 2004) (based on procedural default), on

the issue of whether a decision of the International Court of Justice (“ICJ”) i n A vena 3 requires habeas relief

fo r petitioners whose

VCCR rights were vio lated, the Supreme

Court granted certiorari

. M edellin v. Dretke

, 125 S. Ct. 686 (2004). The grant of certiorari

involved two questions, paraphras ed as follows: (1) Are United States courts bound by

Avena ?; and (2) Even if not bound, should United States courts gi ve effect to A vena in

the interest of comity? Id.

Aft er briefing in M

edellin had been

completed, however, the President advised the

Attorney General that “[t]he United States will

dischar g e its international obligations under

the decision of the [IC J in A vena ] by having

state courts give effect to the decision in accordance wit h general principles of comity.”

Medell i n subsequently moved the Supreme

Court to stay its proceedings p ending his

pursuit of

relief in state court; the United

States, as amicus curiae

, supported t he motion.

According to Medellin, the United State s

, and now Gomez, the Executive’ s power to

undertake foreign policy initiatives, as recognized in Am . Ins. Ass’n v. Garamendi , 539

U.S. 396 (2003), requires Texas courts to give

eff ect t o his foreign policy wishes, even if it

means abandoning normal procedural d e fault

r ules. Not surprisingly, the state disagrees,

and we will have to await pronouncements of

the Texas courts (and perhaps of the Supreme

Court) regarding t he force of the President’s

directive.

B.

For chronological clarity, we now shift the

narrative from Medellin to the instant case.

While his COA application was pending before

this court, G omez moved us to grant a stay

and abatement of his COA applicatio n procee dings so that he could pursue state court

remedies in light of the President’s announcement. Gomez argues that under Texas law, he

canno t seek successive state applications for

habeas relief while a petition is pending in this 1 Apr. 24, 1963, [1070] 21 U.S.T. 77, 100-01,

T.I.A.S. No. 6820.

2 See Rosales v. Bureau of Immigration & Customs Enforcement

, 2005 U.S. App. LEXIS 17246,

at *7-*8 (5th Cir. Aug. 16, 2005) (per curiam).

3 The full caption for Avena is Case Concerning Avena and other Mexican Nationals (Mex. v.

U.S.)

, 2004 I.C.J. No. 128 (Judgment of Mar. 31).3

court unless we grant such a stay. 4

In response, the state contends that the dual

forum problem highlighted by Gomez would

be equally remedied if we merely deny his

COA. 5 Moreover, the state argues that the

resolution of

any state court proceedings is

irrelevant to the COA issues presented here.

According to the state, the VCCR c laim is

procedurally barred because Gomez allegedly

abandoned it in state court. The state also

argues that because the VCCR c l aim is treaty-based, not constitutional, 28 U.S.C. § 2253-

(c)(2) 6 does not allow a COA to issue in any

event.

C.

Aft er the filing of the motion for stay and

the receipt of the state’s opposition, however,

the Supreme Court dismissed the writ of certiorari in Medellin as improvidently granted. M edellin v. Dretke , 544 U.S. ___, 125 S. Ct

2088 (2005) (per curiam). This decision was

accompanied by a lengthy per curiam explanation, a concurrence advocating for granting the

stay Medellin had requested, and three dissents

advocating, variously, granting a stay or vacating the den ial o f COA and remanding to this

court (which Justice O’Connor believed would

stay the proceedings pending state court di sposition of the new writ application in light of

the Presidential directive). 7 We requested and

have received additional briefing addre ssing

the Court’s disposition of Medellin

.

II.

Our habeas corpus jurisprude n ce consistently underscores the cen t ral importance of

“‘comity, of co o peration and of rapport between’” the parallel systems of state and federal courts. T

ucker v. Scott

, 66 F.3d 1418, 1419

(5th Cir. 1995) (quoting Texas v. Payton

, 390

F.2d 261, 270 (5th Cir. 1968)). These concerns animate our strict adherence to the

doctrine of exhausti on 

### SS i .e.

, the notion that

federal courts will not consider a claim on habea s review if it has not been considered and

finally rejected by the state courts. S ee 28

U.S.C. § 2254(b)(1)(A).

Although Gomez (arguably) 8 has previously

presente d his VCCR claim to the Texas state

courts, the subsequent decision of the ICJ in

Avena

, coupled with the Presidential directive

of February 28, 2005, counsel in favor of

Gomez’s re-pursuin g relief in the Texas

cou rt s. Indeed, the Supreme Court has intimated that perhaps an “intervening change in 4 See Ex parte Soffar , 143 S.W.3d 804 (Tex.

Crim. App. 2004) ( am

ending Texas’s “dual forum”

rule to allow a petitioner to file a subsequent state

writ if the federal court with jurisdiction over a

parallel writ stays its proceedings to allow the petitioner to exhaust his claims in state court).

5 This response overlooks the pr ocedural and

limitations difficulties Gomez would face if he later

wished to have the state courts’ adjudication reviewed in federal court via a habeas petition. This

concern is what led the Court of Criminal Appeals

to amend its dual forum rule in Soffar, 143 S.W.3d

at 805, and motivated the Court in Rhines v.

Weber

, 125 S. Ct. 1528, 1533-34 (2005) (allowing

federal courts to grant stays pending state exhaustion where a federal habeas petitioner brings both

exhausted and unexhausted claims).

6 Section 2253(c)(2) provides that a COA “may

issue

. . . only if the applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2) (emphasis added). 7 See Rosales

, 2005 U.S. App. LEXIS 17246,

at *8-*9.

8 As we have noted, the partie s disagree as to

whether Gomez abandoned his VCCR claim during

his direct appeal.4

federal law cast[ ing a] legal issue in a fundamentally different light” might make necessary

the re-exhaustion of state court remedies

before seeking federal review. S ee Picard v.

Connor

, 404 U.S. 270, 27 6 (1971) (citing

Blair v. California

, 340 F.2d 741, 744 (9th

Cir. 1965)).

Staying our proceedings pending Gomez’s

re-exhaustion of state remedies has the further

benefit of avoiding the issuance of what might

eventually be rendered an effectively advisory

opinion. 9 As we have noted, the state argues

that Gomez’s VCCR claim is unworthy of a

COA in that he fails to ma ke a substantial

showing of a constitutional right as required

by § 2253(c)(2). In addition to that thorny

question, Gomez’s case raises ma ny of the

same hurdl es that the Suprem e Court recognized as counseling in favor of dismissing the

writ of certiorari in Medellin

.

Notably, even if we were to hold that Gomez’s VCCR claim is entitled to a COA, there

is a question whether a treaty-based violation

would fall under the category of “‘nonconstitutional lapses we have held not cognizable in

a postconviction proceeding’ unless they meet

the ‘fundamental defect test.’” M edellin

, 125

S. Ct. at 2090 (quoting Hill v. United States

, 368 U.S. 424, 428 (1962)). Consequently, if

we were to resolve th ese dilemmas, and yet

Gomez eventually were to obtain relief

through the Texas courts, our opinion will be

rendered effectively meaningless.

Those considerat io ns, among the others highlighted by the Supreme Court in Medellin

, even if not truly raising a concern about advisory opinions, certainly run contrar y to the

famili ar canon of constitutional avoidance.

See, e.g.

, Ashaw ander

v. Tenn. Valley Auth

. , 297 U.S. 288, 341 (1936) (Brandeis, J ., concurring). Staying our proceedings pending the

resolution of Gomez’s successive state habeas

application will allow us to avoid myriad constitutional quandaries.

This maxi m of constitutional avoidance

rationale is particularly acute with respect to

the resol ut ion of the dispute over whether

§ 2253(c)(2) allows for CO A’s based on alleged treaty violations. Were we to adopt the

state’s position, the result might be that a petitioner could be entitled to habeas relief based

on certain non-constitutional claims, yet were

he denied such relief by t he distri ct court, he

would be precluded from receiving any appellate review of that denial. 10

The decision in Immigration & Na turalization Serv. v. St. Cyr

, 533 U.S. 289 (2001),

furt her calls into question the ability of Con9 Cf. Hayburn’s Case

, 2 U.S. (2 Dall.) 409

(1792) (declining to make reco mmendations on veterans’ pensions because such non-binding pronouncements would be “radically inconsistent with

the independence of th[e] judicial power”). 10 Although some commentators have argued

that the wholesale removal of appellate jurisdiction

over entire cl asses of cases is not only constitutional, but advisable, see, e.g., Paul M. Bator

, Congressional Power over the Jurisdiction of the

Federal Courts, 2 7 V I LL

. L. R EV

. 1030, 1038

(1982); cf. Ex parte McCardle, 74 U.S. 506

(1868), such a robust reading of the “Excep tions

Clause” of Article III has been criticized as unconstitutionally stripping the Court of its historically

understood role consisting of supervisory authority

over the “inferior courts” through “dis cretionary

writs, such as mandamus, habeas corpus, and prohibition,” James E. Pfander, Jurisdictio n-Stripping

and the Supreme Court’s Power To Supervise

Inferior Tribunals

, 78 T EX

. L. R EV

. 1433, 1441-

42 (2000).5

gress wholly to remove appellate jurisdictio n

in cases such as the present one. In S t. C yr

, the Court held that AEDPA 1 1 and IIRIRA 12

did not wholl

y deprive the federal courts of

jurisdiction to review a deportati on order 

### SS even by means o f a writ of habeas corpus 

### SS so as to leave St. Cyr with no opportunity for judicial review. Invoking several timehonored canons of statutory construction, the

Court held that the statutes at is sue did not

repeal habeas review.

In t he first instance, the Court noted that

“[i]mplications from statutory text or legislative history are not sufficient to repeal habeas

jurisdiction; instead, Congress must articulate

specific and unambiguous statutory directives

to effect a repeal.” I

d. at 299. Furthermore,

given the questionable constitutionality of such

wholesale strips of authority, “a s a general

matter, when a particular interpretation of a

statute invokes the ou t er limits of Congress’

power, we expect a clear indication that Congress intended that result.” Id.

Here, the ch a nge in statutory phraseology

that u nderlies the state’s argument does not

necessarily overcome this “c lear statement”

burden. Before the enactment of AEDPA, petitioners needed to make a “substantial showing of [a] federal right,” to obtai n a certificate

of probable cause. B arefoot v. Estel le , 463

U.S. 880, 894 (1983). AEDPA codified t his

language as the standard for obtaining a COA,

except that it substituted the word “constitutional” for “federal.” Although a strong textual argument can be made that we must give some effect to this linguistic sh i ft, Congress’

wording falls short of the explicit “clear statement” standard articulated in St. Cyr.

A further concern that is avoided by a stay

is the AEPDA limitations/tolling diffi culties

that Gomez might face w ere we to deny his

application for a COA before resolution of his

successive state court writ application. As

Gomez puts it in his supplemental letter brief,

[I]f this Court declines to sta y and abey

proceedings on

Gomez’s application for

COA, the [Court of Criminal Appeals] will

be barred by its own case law from considering his subsequent state application. S offa r v. State , 143 S.W.3d 804 (Tex. Crim.

App. 2004). Then, if this Court pro ceeds

finally to dispose of Gomez’s COA application, and the [Court of Criminal Appeals]

later denies relief on Gomez’s subsequent

state application, any attempt by Gomez to

file a successive federal petition will necessarily be time-barred, since the pendency of

his current federal petition is not excludable

from the limit a t ions period. D uncan v.

Walker, 533 U.S. 167 (2001).

The principles underlying fede ral abstention

doctrines also support a stay. In R ailroad

Comm’n v. Pullman Co.

, 312 U.S. 496, 501

(1941), the doctrine now familiarly known as

Pullman abstention was born, to-wit

, “Federal

court abstention is required when state law is

unce rt ain and a state court’s clarification of

state law might make a federal court’s constitutional ruling unnece ssary.” E R WIN C HEM

ERINSKY , F EDERAL J URISDICTION § 12.2.1, at

763 (4th ed. 2003). A stay in favor of the successive state writ application will allow the

Texas courts to grapple with the difficult ies of

squaring Texas’s notions of procedural default

with the Avena decis i on and the Presidential

directive. Furthermore, the Supreme Court’s 11 Antiter r orism and Effective Death Penalty

Act of 1996, Pub. L. 104-132, 110 Stat. 1214

(1996).

12 Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, 8 U.S.C. § 1252.6

various opinions in Medellin presage that the

High Court w ill grant a writ of c ertiorari on

review from the Court of Criminal Appeals if

relief is not granted by

the state courts. S ee

Medellin

, 125 S. Ct. at 2090 n.1; i d. at 2093

(Ginsburg, J., concurring).

III.

In summary, we GRANT Gomez’s motion;

this court’s consideration of Gomez’s application for a COA is STAYED pending resolution

of his pending state habeas co rpus proceedings. We exercise our traditional deference to

the state courts so that they m ay reconsider

Gomez’s VCCR/

A vena claim in light of the

President’s directive and the Supreme Court’s

pronouncements. In so doing, we express no

view as to what action the state courts should

take.