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

_______________

IGNACIO GOMEZ,

Petitioner-Appellant,

VERSUS

DOUG DRETKE,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

______________________________

Before DAVIS, SMITH, and DENNIS, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Ignacio Gomez, convicted in state court of

capital murder, applied to this court for a

certificate of appealability (“COA”) after the

district court 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 application, Gomez

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

our consideration of Gomez’s application for

COA pending the exhaustion ofGomez’sstate

court proceedings.

I.

The issuesin Gomez’s application for COA

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

jury instructions on parole possibilities(i.e., an
2

alleged Sixth Amendment Compulsory Process

Clause violation); (2) claims surrounding the

allegedly improper exclusion of several jury

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

to object to the exclusion of some of those

veniremembers; and (3) a claim that an alleged

violation of the Vienna Convention on Consular Relations (“VCCR”)1

deprived him of a

fair trial. 

With respect to the third claim, Gomez

argues that the VCCR was violated by the

admission of his confession that was obtained

without first advising him of 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”) in Avena3

requires habeas relief for petitioners whose

VCCR rights were violated, the Supreme

Court granted certiorari. Medellin v. Dretke,

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

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

Avena?; and (2) Even if not bound, should

United States courts give effect to Avena in

the interest of comity? Id. 

After briefing in Medellin had been

completed, however, the President advised the

AttorneyGeneralthat “[t]he United States will

discharge its international obligations under

the decision of the [ICJ in Avena] by having

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

Medellin subsequently moved the Supreme

Court to stay its proceedings pending his

pursuit of relief in state court; the United

States, as amicus curiae, supported the motion.

According to Medellin, the United States,

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 courtsto give

effect to his foreign policy wishes, even if it

means abandoning normal procedural default

rules. Not surprisingly, the state disagrees,

and we will have to await pronouncements of

the Texas courts(and perhaps of the Supreme

Court) regarding the force of the President’s

directive.

B.

For chronological clarity, we now shift the

narrative from Medellin to the instant case.

While hisCOAapplicationwas pending before

this court, Gomez moved us to grant a stay

and abatement of his COA application proceedings so that he could pursue state court

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

cannot 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 contendsthat 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 claim is

procedurally barred because Gomez allegedly

abandoned it in state court. The state also

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

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

event.

C.

After 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.

Medellin 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

stayMedellinhad requested, and three dissents

advocating, variously, granting a stayor vacating the denial of COA and remanding to this

court (whichJusticeO’Connor believed would

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

the Presidential directive).7 We requested and

have received additional briefing addressing

the Court’s disposition of Medellin.

II.

Our habeas corpus jurisprudence consistently underscores the central importance of

“‘comity, of cooperation and of rapport between’” the parallelsystems ofstate and federal courts. Tucker 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 exhaustionSSi.e., the notion that

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

finally rejected by the state courts. See 28

U.S.C. § 2254(b)(1)(A). 

AlthoughGomez (arguably)8 has previously

presented 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-pursuing relief in the Texas

courts. 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)(amending 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 procedural 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) providesthat a COA “may

issue . . . only if the applicant has made a substantialshowing 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 parties disagree as to

whether Gomez abandoned his VCCRclaimduring

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. See Picard v.

Connor, 404 U.S. 270, 276 (1971) (citing

Blair v. California, 340 F.2d 741, 744 (9th

Cir. 1965)). 

Staying our proceedings pending Gomez’s

re-exhaustion ofstate remedies hasthe 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 make a substantial

showing of a constitutional right as required

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

question, Gomez’s case raises many of the

same hurdles that the Supreme 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’ unlessthey meet

the ‘fundamental defect test.’” Medellin, 125

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

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

we were to resolve these dilemmas, and yet

Gomez eventually were to obtain relief

through the Texas courts, our opinion will be

rendered effectively meaningless.

Those considerations, among the others

highlighted by the Supreme Court in Medellin,

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

familiar canon of constitutional avoidance.

See, e.g., Ashawander v. Tenn. Valley Auth.,

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

resolution of Gomez’ssuccessive state habeas

application will allow us to avoid myriad constitutional quandaries.

This maxim of constitutional avoidance

rationale is particularly acute with respect to

the resolution of the dispute over whether

§ 2253(c)(2) allows for COA’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 habeasrelief based

on certain non-constitutional claims, yet were

he denied such relief by the district court, he

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

The decision in Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289 (2001),

further calls into question the ability of Con9 Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409

(1792)(declining tomake recommendations 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 thewholesale removal of appellate jurisdiction

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

Congressional Power over the Jurisdiction of the

Federal Courts, 27 VILL. L. REV. 1030, 1038

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

(1868), such a robust reading of the “Exceptions

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

understood role consisting ofsupervisory authority

over the “inferior courts” through “discretionary

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

and the Supreme Court’s Power To Supervise

Inferior Tribunals, 78 TEX. L. REV. 1433, 1441-

42 (2000). 
5

gress wholly to remove appellate jurisdiction

in cases such as the present one. In St. Cyr,

the Court held that AEDPA11and IIRIRA12

did not wholly deprive the federal courts of

jurisdiction to review a deportation orderSSeven by means of a writ of habeas corpusSSso as to leave St. Cyr with no opportunity for judicialreview. Invoking several timehonored canons of statutory construction, the

Court held that the statutes at issue did not

repeal habeas review. 

In the 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.” Id. at 299. Furthermore,

giventhe questionable constitutionality of such

wholesale strips of authority, “as a general

matter, when a particular interpretation of a

statute invokes the outer limits of Congress’

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

Here, the change in statutory phraseology

that underlies the state’s argument does not

necessarily overcome this “clear statement”

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

of probable cause. Barefoot v. Estelle, 463

U.S. 880, 894 (1983). AEDPA codified this

language asthe 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 shift, 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 difficulties

that Gomez might face were 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 stay and abey

proceedings on Gomez’s application for

COA, the [Court of Criminal Appeals] will

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

App. 2004). Then, if this Court proceeds

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

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 limitations period. Duncan v.

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

The principles underlying federal abstention

doctrines also support a stay. In Railroad

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

uncertain and a state court’s clarification of

state law might make a federal court’s constitutional ruling unnecessary.” ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 12.2.1, at

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

Texas courtsto grapple with the difficulties of

squaring Texas’s notions of proceduraldefault

with the Avena decision and the Presidential

directive. Furthermore, the Supreme Court’s

11 Antiterrorism 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 will grant a writ of certiorari on

review from the Court of Criminal Appeals if

relief is not granted by the state courts. See

Medellin, 125 S. Ct. at 2090 n.1; id. at 2093

(Ginsburg, J., concurring). 

III.

In summary, we GRANT Gomez’s motion;

this court’s consideration of Gomez’s application for aCOAis STAYED pending resolution

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

the state courts so that they may reconsider

Gomez’s VCCR/Avena 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.