United States Court of Appeals
Fifth Circuit
F I L E D
In the August 17, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
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, After bringing his COA application, Gomez
Circuit Judges. filed a “Motion To Stay and Abate Proceed-
ings.” We grant that motion and thereby stay
JERRY E. SMITH, Circuit Judge: our consideration of Gomez’s application for
COA pending the exhaustion of Gomez’s state
Ignacio Gomez, convicted in state court of court proceedings.
capital murder, applied to this court for a
certificate of appealability (“COA”) after the I.
district court had rejected his petition for a The issues in Gomez’s application for COA
writ of habeas corpus. Gomez v. Dretke, No. involve (1) claims related to Texas’s lack of
EP-02-CV-267 (W.D. Tex. Sept. 30, 2004). jury instructions on parole possibilities (i.e., an
alleged Sixth Amendment Compulsory Process United States courts give effect to Avena in
Clause violation); (2) claims surrounding the the interest of comity? Id.
allegedly improper exclusion of several jury
veniremembers, as well as an ineffective assis- After briefing in Medellin had been
tance claim complaining of his lawyer’s failure completed, however, the President advised the
to object to the exclusion of some of those Attorney General that “[t]he United States will
veniremembers; and (3) a claim that an alleged discharge its international obligations under
violation of the Vienna Convention on Con- the decision of the [ICJ in Avena] by having
sular Relations (“VCCR”)1 deprived him of a state courts give effect to the decision in ac-
fair trial. cordance with general principles of comity.”
Medellin subsequently moved the Supreme
With respect to the third claim, Gomez Court to stay its proceedings pending his
argues that the VCCR was violated by the pursuit of relief in state court; the United
admission of his confession that was obtained States, as amicus curiae, supported the mo-
without first advising him of his treaty-based tion.
right to the assistance of the Mexican consul-
ate.2 That VCCR claim presents significant According to Medellin, the United States,
procedural difficulties and ultimately convinces and now Gomez, the Executive’s power to
us to grant a stay. undertake foreign policy initiatives, as recog-
nized in Am. Ins. Ass’n v. Garamendi, 539
A. U.S. 396 (2003), requires Texas courts to give
After a panel of this court denied a COA in effect to his foreign policy wishes, even if it
Medellin v. Dretke, 371 F.3d 270, 279-80 (5th means abandoning normal procedural default
Cir. 2004) (based on procedural default), on rules. Not surprisingly, the state disagrees,
the issue of whether a decision of the Interna- and we will have to await pronouncements of
tional Court of Justice (“ICJ”) in Avena3 re- the Texas courts (and perhaps of the Supreme
quires habeas relief for petitioners whose Court) regarding the force of the President’s
VCCR rights were violated, the Supreme directive.
Court granted certiorari. Medellin v. Dretke,
125 S. Ct. 686 (2004). The grant of certiorari B.
involved two questions, paraphrased as fol- For chronological clarity, we now shift the
lows: (1) Are United States courts bound by narrative from Medellin to the instant case.
Avena?; and (2) Even if not bound, should While his COA application was pending before
this court, Gomez moved us to grant a stay
and abatement of his COA application pro-
1
Apr. 24, 1963, [1070] 21 U.S.T. 77, 100-01, ceedings so that he could pursue state court
T.I.A.S. No. 6820. remedies in light of the President’s announce-
ment. Gomez argues that under Texas law, he
2
See Rosales v. Bureau of Immigration & Cus- cannot seek successive state applications for
toms Enforcement, 2005 U.S. App. LEXIS 17246, habeas relief while a petition is pending in this
at *7-*8 (5th Cir. Aug. 16, 2005) (per curiam).
3
The full caption for Avena is Case Concern-
ing Avena and other Mexican Nationals (Mex. v.
U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31).
2
court unless we grant such a stay.4 Medellin v. Dretke, 544 U.S. ___, 125 S. Ct
2088 (2005) (per curiam). This decision was
In response, the state contends that the dual accompanied by a lengthy per curiam explana-
forum problem highlighted by Gomez would tion, a concurrence advocating for granting the
be equally remedied if we merely deny his stay Medellin had requested, and three dissents
COA.5 Moreover, the state argues that the advocating, variously, granting a stay or vacat-
resolution of any state court proceedings is ing the denial of COA and remanding to this
irrelevant to the COA issues presented here. court (which Justice O’Connor believed would
According to the state, the VCCR claim is stay the proceedings pending state court dis-
procedurally barred because Gomez allegedly position of the new writ application in light of
abandoned it in state court. The state also the Presidential directive).7 We requested and
argues that because the VCCR claim is trea- have received additional briefing addressing
ty-based, not constitutional, 28 U.S.C. § 2253- the Court’s disposition of Medellin.
(c)(2)6 does not allow a COA to issue in any
event. II.
Our habeas corpus jurisprudence consis-
C. tently underscores the central importance of
After the filing of the motion for stay and “‘comity, of cooperation and of rapport be-
the receipt of the state’s opposition, however, tween’” the parallel systems of state and feder-
the Supreme Court dismissed the writ of cer- al courts. Tucker v. Scott, 66 F.3d 1418, 1419
tiorari in Medellin as improvidently granted. (5th Cir. 1995) (quoting Texas v. Payton, 390
F.2d 261, 270 (5th Cir. 1968)). These con-
cerns animate our strict adherence to the
4
See Ex parte Soffar, 143 S.W.3d 804 (Tex. doctrine of exhaustionSSi.e., the notion that
Crim. App. 2004) (amending Texas’s “dual forum” federal courts will not consider a claim on ha-
rule to allow a petitioner to file a subsequent state beas review if it has not been considered and
writ if the federal court with jurisdiction over a finally rejected by the state courts. See 28
parallel writ stays its proceedings to allow the pe- U.S.C. § 2254(b)(1)(A).
titioner to exhaust his claims in state court).
5 Although Gomez (arguably)8 has previously
This response overlooks the procedural and
limitations difficulties Gomez would face if he later presented his VCCR claim to the Texas state
wished to have the state courts’ adjudication re- courts, the subsequent decision of the ICJ in
viewed in federal court via a habeas petition. This Avena, coupled with the Presidential directive
concern is what led the Court of Criminal Appeals of February 28, 2005, counsel in favor of
to amend its dual forum rule in Soffar, 143 S.W.3d Gomez’s re-pursuing relief in the Texas
at 805, and motivated the Court in Rhines v. courts. Indeed, the Supreme Court has inti-
Weber, 125 S. Ct. 1528, 1533-34 (2005) (allowing mated that perhaps an “intervening change in
federal courts to grant stays pending state exhaus-
tion where a federal habeas petitioner brings both
7
exhausted and unexhausted claims). See Rosales, 2005 U.S. App. LEXIS 17246,
at *8-*9.
6
Section 2253(c)(2) provides that a COA “may
8
issue . . . only if the applicant has made a substan- As we have noted, the parties disagree as to
tial showing of the denial of a constitutional right.” whether Gomez abandoned his VCCR claim during
28 U.S.C. § 2253(c)(2) (emphasis added). his direct appeal.
3
federal law cast[ing a] legal issue in a funda- highlighted by the Supreme Court in Medellin,
mentally different light” might make necessary even if not truly raising a concern about advi-
the re-exhaustion of state court remedies sory opinions, certainly run contrary to the
before seeking federal review. See Picard v. familiar canon of constitutional avoidance.
Connor, 404 U.S. 270, 276 (1971) (citing See, e.g., Ashawander v. Tenn. Valley Auth.,
Blair v. California, 340 F.2d 741, 744 (9th 297 U.S. 288, 341 (1936) (Brandeis, J., con-
Cir. 1965)). curring). Staying our proceedings pending the
resolution of Gomez’s successive state habeas
Staying our proceedings pending Gomez’s application will allow us to avoid myriad con-
re-exhaustion of state remedies has the further stitutional quandaries.
benefit of avoiding the issuance of what might
eventually be rendered an effectively advisory This maxim of constitutional avoidance
opinion.9 As we have noted, the state argues rationale is particularly acute with respect to
that Gomez’s VCCR claim is unworthy of a the resolution of the dispute over whether
COA in that he fails to make a substantial § 2253(c)(2) allows for COA’s based on al-
showing of a constitutional right as required leged treaty violations. Were we to adopt the
by § 2253(c)(2). In addition to that thorny state’s position, the result might be that a pe-
question, Gomez’s case raises many of the titioner could be entitled to habeas relief based
same hurdles that the Supreme Court recog- on certain non-constitutional claims, yet were
nized as counseling in favor of dismissing the he denied such relief by the district court, he
writ of certiorari in Medellin. would be precluded from receiving any appel-
late review of that denial.10
Notably, even if we were to hold that Go-
mez’s VCCR claim is entitled to a COA, there The decision in Immigration & Naturali-
is a question whether a treaty-based violation zation Serv. v. St. Cyr, 533 U.S. 289 (2001),
would fall under the category of “‘nonconsti- further calls into question the ability of Con-
tutional lapses we have held not cognizable in
a postconviction proceeding’ unless they meet
the ‘fundamental defect test.’” Medellin, 125 10
Although some commentators have argued
S. Ct. at 2090 (quoting Hill v. United States, that the wholesale removal of appellate jurisdiction
368 U.S. 424, 428 (1962)). Consequently, if over entire classes of cases is not only constitu-
we were to resolve these dilemmas, and yet tional, but advisable, see, e.g., Paul M. Bator,
Gomez eventually were to obtain relief Congressional Power over the Jurisdiction of the
through the Texas courts, our opinion will be Federal Courts, 27 VILL. L. REV. 1030, 1038
rendered effectively meaningless. (1982); cf. Ex parte McCardle, 74 U.S. 506
(1868), such a robust reading of the “Exceptions
Those considerations, among the others Clause” of Article III has been criticized as uncon-
stitutionally stripping the Court of its historically
understood role consisting of supervisory authority
over the “inferior courts” through “discretionary
9
Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409 writs, such as mandamus, habeas corpus, and pro-
(1792) (declining to make recommendations on vet- hibition,” James E. Pfander, Jurisdiction-Stripping
erans’ pensions because such non-binding pro- and the Supreme Court’s Power To Supervise
nouncements would be “radically inconsistent with Inferior Tribunals, 78 TEX. L. REV. 1433, 1441-
the independence of th[e] judicial power”). 42 (2000).
4
gress wholly to remove appellate jurisdiction some effect to this linguistic shift, Congress’
in cases such as the present one. In St. Cyr, wording falls short of the explicit “clear state-
the Court held that AEDPA11 and IIRIRA12 ment” standard articulated in St. Cyr.
did not wholly deprive the federal courts of
jurisdiction to review a deportation or- A further concern that is avoided by a stay
derSSeven by means of a writ of habeas cor- is the AEPDA limitations/tolling difficulties
pusSSso as to leave St. Cyr with no opportu- that Gomez might face were we to deny his
nity for judicial review. Invoking several time- application for a COA before resolution of his
honored canons of statutory construction, the successive state court writ application. As
Court held that the statutes at issue did not Gomez puts it in his supplemental letter brief,
repeal habeas review.
[I]f this Court declines to stay and abey
In the first instance, the Court noted that proceedings on Gomez’s application for
“[i]mplications from statutory text or legisla- COA, the [Court of Criminal Appeals] will
tive history are not sufficient to repeal habeas be barred by its own case law from consid-
jurisdiction; instead, Congress must articulate ering his subsequent state application. Sof-
specific and unambiguous statutory directives far v. State, 143 S.W.3d 804 (Tex. Crim.
to effect a repeal.” Id. at 299. Furthermore, App. 2004). Then, if this Court proceeds
given the questionable constitutionality of such finally to dispose of Gomez’s COA appli-
wholesale strips of authority, “as a general cation, and the [Court of Criminal Appeals]
matter, when a particular interpretation of a later denies relief on Gomez’s subsequent
statute invokes the outer limits of Congress’ state application, any attempt by Gomez to
power, we expect a clear indication that Con- file a successive federal petition will neces-
gress intended that result.” Id. sarily be time-barred, since the pendency of
his current federal petition is not excludable
Here, the change in statutory phraseology from the limitations period. Duncan v.
that underlies the state’s argument does not Walker, 533 U.S. 167 (2001).
necessarily overcome this “clear statement”
burden. Before the enactment of AEDPA, pe- The principles underlying federal abstention
titioners needed to make a “substantial show- doctrines also support a stay. In Railroad
ing of [a] federal right,” to obtain a certificate Comm’n v. Pullman Co., 312 U.S. 496, 501
of probable cause. Barefoot v. Estelle, 463 (1941), the doctrine now familiarly known as
U.S. 880, 894 (1983). AEDPA codified this Pullman abstention was born, to-wit, “Federal
language as the standard for obtaining a COA, court abstention is required when state law is
except that it substituted the word “constitu- uncertain and a state court’s clarification of
tional” for “federal.” Although a strong tex- state law might make a federal court’s consti-
tual argument can be made that we must give tutional ruling unnecessary.” ERWIN CHEM-
ERINSKY, FEDERAL JURISDICTION § 12.2.1, at
763 (4th ed. 2003). A stay in favor of the suc-
11
Antiterrorism and Effective Death Penalty cessive state writ application will allow the
Act of 1996, Pub. L. 104-132, 110 Stat. 1214 Texas courts to grapple with the difficulties of
(1996). squaring Texas’s notions of procedural default
12
Illegal Immigration Reform and Immigrant
with the Avena decision and the Presidential
Responsibility Act of 1996, 8 U.S.C. § 1252. directive. Furthermore, the Supreme Court’s
5
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 applica-
tion for a COA is STAYED pending resolution
of his pending state habeas corpus proceed-
ings. 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.
6