concur in part/dissent in part.
I 1 I concur in the results reached by the Court in this case, and adopt much of the analysis I shared in the unpublished order granting an evidentiary hearing in this matter.
12 However, I disagree with this Court's assertion that the trial judge found Appellant was "prejudiced" as a result of the failure to adequately inform him of his rights under the Vienna Convention. What appears from a reading of the findings by the trial judge is the judge made a finding "as a matter of policy", not "actual fact" that Appellant was prejudiced. The trial judge stated:
This Court cannot say with certainty that Appellant suffered actual prejudice because he was not informed of his rights under the Vienna Convention. However, this Court does not support a result that could lead some in the international community to believe the United States does not take seriously its obligations under the Convention. See U.S. v Carrillo, 70 F.Supp. 2nd 854. Further, this Court believes that a ruling that Appellant was not prejudiced would allow officials of foreign signatories to ignore these same provisions when American citizens are detained abroad. Therefore, this Court finds that the Appellant was prejudiced because he was not adequately informed of his rights under the Vienna Convention. (Findings of Fact at Page 7)
*1191This finding, on its face, acknowledges it is in direct contradiction to the facts of the case. Thus, it becomes not a legal finding based on the law and evidence, but a political or policy decision, which should not be made by courts. While I appreciate the challenges presented to the trial judge in this matter, I believe it reveals that even excellent, experienced jurists can be drawn down the wrong path by public policy arguments.
[3 I also disagree with this Court creating a "presumption of prejudice" standard to apply in this case. That presumption is not supported by the law or evidence presented in this record either as to the notification of consular rights or the issue of effective assistance of counsel. What the Court disregards in applying its "presumption" is the fact that Appellant is a Mexican national in form, not substance, due to the fact he has lived in the United States since he was 4 or 5 years old. (Evidentiary Hearing Order, Pg. 6) His contacts with Mexico have been minimal. There was nothing the Mexican government could provide as to evidence regarding his time in Mexico due to the fact he resided there for such a short period during his infancy. However, they could and have provided him resources, which is commendable. The mere failure to give notice of consular rights under this fact situation cannot in any manner be deemed to have been prejudicial, much less presumed prejudice.
{4 We should not attach some carte blanche presumption of prejudice due to mere failure to advise of consular rights. Those rights are important and should be given in each instance. But, if there is a failure to advise, that faflure must be judged under the totality of the circumstances and the actual impact it had upon a defendant to receive due process, effective assistance of counsel and resources needed for his/her defense. There is a valid reason for the requirement of advice of consular rights in the world today, but the failure to provide that notice must be evaluated in relation to the guarantees afforded to each person charged with a crime in this great country. Our constitution provides to the lowest of persons the guarantees not even possessed by the affluent in most countries. The methods of providing those constitutional benefits are evolving and improving on a continuing basis. The appellant in this case was never without the assistance of counsel, and there are some filings in this record that indicate his retained trial counsel actually had contact with Mexican officials prior to his trial. Regardless, Appellant's rights were protected and he was provided resources to mount his defense and seek his appeals at each stage of the proceedings. We should not deal in presumptions when we can adjudicate realities, and that should be our standard of review. If a defendant has been prejudiced he/she will be able to present evidence to support that allegation and this court can adjudicate the issue on the facts. I find the presumption of prejudice due to the failure to advise of consular rights totally unwarranted and in conflict with an understanding of our erimi-nal justice system. In support of these conclusions, I reiterate portions of my previous writings in this case.
T5 review of the history of this case reveals the issue of ineffective assistance of counsel was raised and adjudicated in Appellant's direct appeal and that issue is now barred by res judicata. See Torres v. State, 1998 OK CR 40, 962 P.2d 3.1 Appellant did not raise the issue of notification of consular rights in any of his subsequent appeals.2 As a result, consideration of the legal issue is now barred by res judicate and waiver. Further, I have reviewed the briefs and materials presented and do not find any of the proffered evidence brings into question the guilt of Appellant. His guilt as an aider and abettor was proven beyond a reasonable doubt. See Conover v. State, 1997 OK CR 6, ¶¶ 18-21, 933 P.2d 904, 914-16.
I 6 As with any case that has been pending for over ten years, hindsight is 20/20 and *1192someone will look back and say something else could or should have been done. However, that is exactly what the U.S. Supreme Court told us not to do. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. As was pointed out in the original opinion, the first trial ended in a mistrial in 1995. There were no surprises during the second trial. My reading of the materials submitted with this subsequent application for post-conviction relief reflects those items dealt with mitigation evidence. And, while mitigation evidence was presented during the trial leading to the verdict in this case, the proffered items reveal only that more of the same type could have been presented, albeit, in more depth and by different witnesses with better credentials. In reality, that could be said of every case of this type we review. Therefore, as I previously stated, there was no basis in fact to require a further evidentiary hearing.
T7 I also adhere to my previous finding that Avena and other Mexican Nationals (Mexico v. United States), 2004 I.C.J. 128 (March 31, 2004) is not binding on this Court.3 The legal basis for this claim has been available since Appellant's arrest in 1998. The Avena decision cannot revive a stale claim. At most Avena directed us to review the case to ensure Appellant received the benefit of the process that was due him, and which would have been assured him if he had been advised of his consular rights. Appellant has been afforded his rights under Avena. He has been represented by competent lawyers at each stage of these proceedings and afforded all the rights guaranteed to citizens of the United States. That is reflected in the volumes of trial and appellate records amassed over the last eleven years.
18 Appellant's submissions constituted possible additional mitigation evidence. He has now had the opportunity to present that evidence to the Pardon and Parole Board, and ultimately to the Governor, and to this Court and the trial court in the remanded evidentiary hearing. As I reviewed the proffered documents and evidence I could not find any matters that brought into question the validity of the judgment and sentence in this case. His ability to present these additional matters through the executive clemency process and now the evidentiary hearing is another example of the due process that has been afforded to him. As a matter of law I do not find the subsequent application meets the requirements of 22 O.S.2001, § 1089.1(8)(9) and should be denied.
1 9 What has been exhibited and proven in this case is the United States of America continues to have the premier legal system in the world today. While many countries on this globe require the mandate of the notice of consular rights, and that is why we ascribe to and enforce them, to ensure the rights of persons charged with crimes are protected, those rights are automatically afforded to all persons pursuant to our constitution. Our concept of a "Nation of laws and not of men" works to secure and protect all who are charged with crimes without the need of an outside impetus. Granted, to ensure the proper example is presented to all who observe our system, we need to adhere to even the pro forma requirements of international agreements such as the Vienna Convention. However, we should never let form rule over substance as it is the assurance of due process, not the facade of it, that ensures the rights of the individual. In this case, substance prevailed over form and the Appellant received all the process that was due to him *1193pursuant to the guarantees of the Constitutions of the United States of America and the State of Oklahoma. In addition to those guarantees, he was blessed with the additional merey of the Governor of the State of Oklahoma.
. The original Application for Post-Conviction Relief, PC-1998-213, also sought to raise the issue of ineffective assistance of trial counsel. That application was denied in an unpublished opinion and not appealed.
. The Second Application for Post-Conviction relief, Torres v. State, 2002 OK Cr 35, 58 P.3d 214; and a certiorari appeal, Torres v. Oklahoma, 538 U.S. 928, 123 S.Ct. 1580, 155 LEd.2d 323 (2003).
. Additionally, I note the State raised a very interesting point of fact in 4 of their Response Brief filed in this case prior to the evidentiary hearing. In that the State pointed out that Mexico has made conflicting admissions of when they learned of Appellant, i.e. December 1997 and March 1996. But more pointedly, the State said:
In addition, trial counsel for Mr. Torres has advised undersigned that she contacted Mexico and informed them of Mr. Torres' case prior to his trial. The undersigned has been unable to obtain an affidavit from trial counsel and has filed a motion asking this Court to compel counsel to prepare an affidavit This motion has not been ruled upon by this Court.
As I stated previously, if this Court were to take any action, it should only have been to afford the State the opportunity to file an affidavit of trial counsel. If the affidavit comported with the proffer of the then the entire issue was moot,. In reviewing the record of the evidentiary hearing, I did not find this assertion to have been contested. Consular rights were afforded. Mexico was given notice.