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Published online by Cambridge University Press: 27 February 2017
* This text was reproduced and reformatted from the text appearing at the website (visited September 16, 2006) <http://www.supremecourtus.gov>.
1 In its entirety, Article 36 of the Vienna Convention states: “1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State: “(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers 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 sub paragraph; “(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.” 21 U. S. T., at 100-101.
2 Bustillo's habeas petition also presented newly acquired evidence that tended to cast doubt on his conviction. Most notably, he produced a secretly recorded videotape in which Sirena admitted killing Merry and stated that Bustillo had been wrongly convicted. App. in No. 05-51, pp. 38, 54. In addition, Bustillo argued that the prosecution violated Brady v. Maryland, 373 U. S. 83 (1963), by failing to disclose that on the night of the crime, police had questioned a man named ‘ ‘Julio C. Osorto,” who is now known to be the same man as “Sirena.” The police report concerning the encounter stated that Sirena appeared to have ketchup on his pants. Bustillo contends that these stains might in fact have been the victim's blood. The Commonwealth disputes this. The state habeas court found ‘ ‘no evidence of any transfer of the victim's blood to the assailant,'’ and concluded that the undisclosed encounter between police and Sirena was not material under Brady. App. in No. 05-51, p. 167
3 See Declaration of Ambassador Maura A. Harty, Annex 4 to Counter-Memorial of the United States in Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C.J.No. 128, p. A386,¶41 (Oct. 25,2003) (Harty Declaration) (“With the possible exception of Brazil, we are not aware of a single country that has a law, regulation or judicial decision requiring that a statement taken before consular notification and access automatically must be excluded from use at trial” (footnote omitted)). According to the Harty Declaration, the American Embassy in Brazil has been advised that Brazil considers consular notification to be a right under the Brazilian Constitution. Neither the declaration nor the parties point to a case in which a Brazilian court has suppressed evidence because of a violation of that right. In a few cases, as several amici point out, the United Kingdom and Australia appear to have applied a discretionary rule of exclusion for violations of domestic statutes implementing the Vienna Convention. See Brief for United States as Amicus Curiae 26, and n. 9; Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 16-23. The dissent similarly relies on two cases from Australia, post, at 32 (opinion of Breyer, J.) (citing Tan Seng Kiah v. Queen (2001) 160 F. L. R. 26 (Ct. Crim. App. N. Terr.) and Queen v. Tan [2001] W. A. S. C. 275 (Sup. Ct. W. Australia in Crim.)), where consular notification rights are governed by a domestic statute that provides rights beyond those required by Article 36 itself. See Crimes Act, No. 12,1914, §23p (Australia). The Canadian case on which the dissent relies, post, at 32, denied suppression, and concerned only the court's general discretionary authority to exclude a confession “whose admission would adversely affect the fairness of an accused's trial.” Queen v. Partak [2001] 160 C. C. C. 3d 553, ¶[61 (Ont. Super. Ct. of J.).
4 The dissent, in light of LaGrand and Avena, “would read Breard … as not saying that the Convention never trumps any procedural default rule.” Post, at 26 (opinion of Breyer, J.). This requires more than “reading an exception into Breard's language,” post, at 27, amounting instead to overruling Breard's plain holding that the Convention does not trump the procedural default doctrine. While the appeal of such a course to a Breard dissenter may be clear, see 523 U. S., at 380 (Breyer, J., dissenting), “respectful consideration” of precedent should begin at home.
5 The dissent's extensive list of lower court opinions that have “looked to the ICJ for guidance,” post, at 21-22, is less impressive than first appears. Many of the cited opinions merely refer to, or briefly describe, ICJ decisions without in any way relying on them as authority. See,e.g., Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F. 2d 929, 932, 935 (CADC 1988); Conservation Law Foundation of New England v. Secretary of Interior, 790 F. 2d 965, 967 (CA1 1986); Narenji v. Civiletti, 617 F. 2d 745,748 (CADC 1979); Diggs v. Richardson, 555 F. 2d 848, 849 (CADC 1976); Rogers v. Societe Internationale Pour Participations Industrielles et Commerciales, S. A., 278 F. 2d 268, 273, n. 3 (CADC 1960) (Fahy, J., dissenting). Others cite ICJ opinions alongside law review articles for general propositions about international law. See,e.g., McKesson Corp. v. Islamic Republic of Iran, 52 F. 3d 346, 352 (CADC 1995); Princz v. Federal Republic of Germany, 26 F. 3d 1166, 1180, 1184 (CADC 1994) (Wald, J., dissenting); Sadat v. Mertes, 615 F. 2d 1176, 1187, n. 14 (CA7 1980); United States v. Postal, 589 F. 2d 862, 869 (CA5 1979). Moreover, all but two of the cited decisions from this Court concern technical issues of boundary demarcation. See post, at 21.
6 The dissent would read the ICJ's decisions to require that procedural default rules give way only where “the State is unwilling to provide some other effective remedy, for example (if the lawyer acts incompetently in respect to Convention rights of which the lawyer was aware) an ineffective-assistance-of-counsel claim.” Post, at 25 (opinion of BREYER, J.). But both LaGrand and Avena indicate that the availability of a claim of ineffective assistance of counsel is not an adequate remedy for an Article 36 violation. See LaGrand Case (F. R. G. v. U. S.), 2001 I. C. J. 466, 497, ¶91 (Judgment of June 27) (requiring suspension of state procedural default rule even though “United States courts could and did examine the professional competence of counsel assigned to the indigent LaGrands by reference to United States constitutional standards“); see also Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128,¶134 (Judgment of Mar. 31). To the extent the dissent suggests that the ICJ's decisions could be read to prevent application of procedural default rules where a defendant's attorney is unaware of Article 36, see post, at 24-25 (opinion of BREYER, J.), this interpretation of the Convention is in sharp conflict with the role of counsel in our system. “Attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must'bear the risk of attorney error.’ “ Coleman v. Thompson, 501 U. S. 722, 753 (1991) (quoting Murray v. Carrier, All U. S. 478, 488 (1986)). Under our system, an attorney's lack of knowledge does not excuse the defendant's default, unless the attorney's overall representation falls below what is required by the Sixth Amendment. In any event, Bustillo himself does not argue that the applicability of procedural default rules hinges on whether a foreign national's attorney was aware of Article 36. See Brief for Petitioner in No. 05-51, p. 38 (“[A] lawyer may not, consistent with the purposes of Article 36, unilaterally forfeit a foreign national's opportunity to communicate with his consulate“). In fact, Bustillo has conceded that his “attorney at trial was aware of his client's rights under the Vienna Convention.” App. in No. 05-51, p. 203, n. 5.
1 Before trial, Sanchez-Llamas moved to suppress his statements to police on voluntariness grounds. The trial court denied the motion, finding that clear and convincing evidence established Sanchez-Llamas’ knowing, voluntary, and intelligent waiver of his Miranda rights. Tr. 232 (Nov. 16, 2000);App. to Pet. for Cert, in No. 04-10566, pp. 10-11. Neither the Oregon Court of Appeals nor the Oregon Supreme Court addressed Sanchez-Llamas’ voluntariness challenge, and this Court declined to review the question,
2 See Declaration of Ambassador Maura A. Harty, Annex 4 to Counter-Memorial of the United States in Case Concerning Avena and other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. No. 128, pp. A385-A386, 1134-38 (Oct. 25, 2003) (observing that some Convention signatories do not permit consular access until after the detainee has been questioned, and that, even in countries that permit immediate consular access, access often does not occur until after interrogation); cf. Avena, 20041. C. J., f 87 (recognizing that Article 36(l)(b)'s requirement that authorities “ ‘inform the person concerned without delay of his rights’ cannot be interpreted to signify that the provision of such information must necessarily precede any interrogation, so that the commencement of interrogation before the information is given would be a breach of Article 36“).
3 Furthermore, once Bustillo became aware of his Vienna Convention rights, nothing prevented him from raising an ineffective-assistance-of counsel claim predicated on his trial counsel's failure to assert the State's violation of those rights. Through such a claim, as the dissent acknowledges, see post, at 16, 19, 25, 29, “full effect” could have been given to Article 36, without dishonoring state procedural rules that are compatible with due process. Bustillo did not include a Vienna-Convention-based, ineffective-assistance-of-counsel claim along with his direct Vienna Convention claim in his initial habeas petition. He later sought to amend his petition to add an ineffective-assistance-of-counsel claim, but the court held that the amendment did not relate back to the initial pleading. Tr. of Oral Arg. 26, 42. The state court therefore rejected Bustillo's ineffectiveness claim as barred by the applicable state statute of limitations. App. 132. Bustillo did not seek review of that decision in this Cour