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Angel Francisco BREARD





Classification: Murderer
Characteristics: Rape - "Satanic curse"
Number of victims: 1
Date of murder: February 17, 1992
Date of birth: 1966
Victim profile: Ruth Dickie (female, 29)
Method of murder: Stabbing with knife
Location: Arlington County, Virginia, USA
Status: Executed by lethal injection in Virginia on April 14, 1998

Supreme Court of the United States

breard v. green

United States Court of Appeals
For the Fourth Circuit

opinion 96-25
petition for executive clemency
clemency petition

Angel Francisco Breard, 32, was sentenced to death for the attempted rape and the murder of neighbor Ruth Dickie in February 1992. She was stabbed 5 times in the neck and found dead in her Arlington, Virginia, apartment naked from the waist down.

He was arrested 6 months later for allegedly attempting to sexualy assault another northern Virginia woman and became a suspect in Dickie's kiling. Breard has been on Virginia's death row since his 1993 murder conviction.

While there he married his wife Roseanna in October, 1996, prison officials said.

Breard was born in Argentina, and his family moved to Paraguay when he was 13. According to court documents filed by Amnesty International, he was sexually assaulted by a soldier when he was 7 and suffered head injuries in a 1985 car accident that left him impulsive and short- tempered.

He moved to the USA in October 1986, enrolling in English classes and finding a job in the Washington, D.C., suburbs of northern Virginia; a marriage to his English teacher lasted just 4 months and he became an alcoholic.

Amnesty International said in court filings seeking clemency for Breard that "buy 1992, his alcoholism had reached the point where he was drunk on a daily basis and unable to work."

Breard confessed to murdering Dickie, but said he was under a Satanic curse placed on him by his ex-wife's father. He rejected a plea bargain that would have spared his life, and pleaded for mercy from a jury that sentenced him to die.

Virginia prosecutors admit Breard was not afforded his rights under the Vienna Convention on Consular Relations to meet with Paraguayan consular officials, but say that issue should have been raised with state appeals courts that upheld the death sentence.

The 15-member United Nations Tribunal ruled last week that the execution should be blocked because Virginia authorities failed to notify Paraguay of the man's arrest as required by an international, the Vienna Convention.

Breard was executed by lethal injection shortly after Gov. Jim Gilmore refused to stop the sentence from being carried out.

Gilmore said delay of the execution "would have the practical effect of transferring responsibility from the courts of the commonwealth and the US to the International Court."

Breard was flanked by an attorney and a spiritual adviser when he was led into the death chamber. His final words were "May glory be to God," Department of Corrections spokewman Larry Traylor said.

It was the 2nd time in 7 months that a foreign government had tried to stop a Virginia execution because of a treaty violation. Mario Murphy was executed last Sept. 17 over objections from Mexico. The US State Department also had pressured then-Governor George Allen to stop Murphy's execution.

Paraguay's government had no comment Tuesday night.

Paraguayans, however, voiced indignation at what they called the overbearing behavior of the United States.

Miriam Delgado, a government employee in Asuncion, Paraguay, said that "Breard's guilt is not in doubt, but the United States acted in an overbearing way in its lack of respect for an international treaty."


Angel Francisco Breard: Facing Death in a Foreign Land

Angel Francisco Breard, 32, is a citizen of Paraguay and Argentina who faces execution in Virginia on 14 April 1998. Like virtually all foreign nationals under sentence of death in the United States of America (USA), Breard was never informed by the arresting authorities of his treaty-based right to contact his consulate for assistance. The US courts have consistently refused to address this treaty violation on procedural grounds and have ignored the other significant issues raised in the Breard case.

The USA has unconditionally ratified the Vienna Convention on Consular Relations, which regulates the functions of consulates in more than 140 countries worldwide. Article 36 of the Vienna Convention protects the legal and human rights of detained foreigners, by requiring local authorities to promptly notify foreign citizens of their right to communicate with their consulate.

Amnesty International remains deeply concerned over the failure of the US authorities to respect the consular rights of detained foreign nationals. Furthermore, the organization finds it unacceptable that the US courts have provided no remedies for past violations of Article 36 which contributed to the imposition of death sentences on foreign citizens[1].

Deprived of consular advice, Breard was unable to participate constructively in his own defence. Due to his failure to comprehend the cultural and legal differences between the US and his home countries, Breard made a series of potentially fatal decisions at his trial which directly contributed to his death sentence.

The refusal of the US courts to address this important issue (and the other compelling claims raised by Breard in his appeals) graphically illustrates the arbitrary nature of the death penalty. Despite judicial procedures intended to ensure that death sentences are fairly and rationally imposed, the death penalty in the USA continues to be a "lethal lottery", which is inflicted primarily on those individuals accused of murder who are least able to defend themselves; the poor, those from ethnic minorities and the mentally retarded and the mentally ill.

Personal Background

Angel Francisco Breard was born in Corrientes, Argentina, the youngest of four children. When 7-years-old, he was sexually assaulted by a soldier. The family moved to Paraguay when he was 13-years-old. At the age of 15 he began consuming alcohol, often in the company of his father who was known to be a heavy drinker.

In 1985, Breard sustained serious head injuries in a car accident, which rendered him unconscious for several days. Family members later reported a distinct change in Breard's personality following the head injury, particularly a tendency to behave impulsively and to lose his temper.

Angel Breard moved to the USA in October 1986, whereupon he immediately enrolled in English classes and secured employment. By the time of his marriage to one of his English instructors the following year, Breard was drinking heavily. The couple separated after just four months of marriage in 1987.

After the failure of his marriage, Breard became severely depressed and increasingly dependent on alcohol. Although he continued to work and to send regular financial support to his mother in Paraguay, his personal life began to deteriorate. By 1992, his alcoholism had reached the point that he was drunk on a daily basis and unable to work.

Case Background

On 17 February 1992, Ruth Dickie was assaulted and stabbed to death in her apartment. Breard was arrested and charged with attempted rape and capital murder. He has never denied his involvement in the murder. However, he has always insisted that he committed the murder because of a satanic curse placed on him by his former father-in-law. He also believed that the jury would be more lenient if he admitted committing the crime and expressed his remorse to them. This belief was based on his impression of trial procedures in his native countries. His lawyers were unable to persuade him that a jury in the US would only view his testimony as a further reason to sentence him to death.

Despite his own admission of guilt and the advice of his attorneys, Breard refused to accept the prosecution's offer of a reduced sentence in exchange for a guilty plea. Instead, he insisted on confessing on the witness stand at his trial, in the mistaken belief that the jury would be lenient or even exonerate him, once they heard that he was the victim of a satanic curse. Breard entered a plea of "not guilty"; his case went to trial in June of 1993.

Capital murder trials in the USA are conducted in two separate stages. During the first phase, the guilt or innocence of the defendant is determined. A separate hearing is then held, during which the defence presents any information about the convicted person that might persuade the court to impose a lesser sentence. This "mitigating evidence" is weighed by the jury against the nature of the crime and other factors before determining a sentence of life imprisonment or death.

After hearing three days of testimony, the jury convicted Breard of attempted rape and capital murder. The penalty phase of the trial lasted only a few hours: Breard's attorneys presented almost no mitigating evidence. The jury never learned, for example, of the significant changes to his personality and behaviour following his head injury. His mother was one of the few witnesses who testified on his behalf; the jury never heard from a number of family members, friends and former teachers who were willing to testify for his good character prior to his car accident. Instead, the jury heard Breard confess openly to the crime while claiming that his actions were the result of a curse placed upon him. Breard has no prior convictions for criminal offenses.

Despite the incomplete mitigating evidence and his own extraordinary confession, the jury deliberated for six hours before agreeing on a sentence. Jurors asked the judge for instructions on the length of time that Breard would be incarcerated if they sentenced him to life imprisonment. They also asked if they could recommend a sentence of life imprisonment without parole. However, the judge refused to provide them with any additional sentencing information, thereby increasing the likelihood that they would recommend a death sentence. On 25 June 1993, Angel Francisco Breard was sentenced to death.

Amnesty International believes that the assistance of government officials from his countries of citizenship may well have lead to Breard accepting the offer of a plea-bargain. In cases where foreign citizens face capital charges, prompt consular notification and assistance may literally mean the difference between life and death. Angel Francisco Breard was tried, convicted and sentenced without the benefit of the consular support necessary to ensure that he would understand the complex legal system of another country. Consular officials would have explained these cultural and legal differences in a way that his attorneys were unable to do; they would also have ensured that Breard's jury heard crucial mitigating evidence that might well have persuaded them to spare his life.

In 1996, Angel Breard finally learned of his right to consular assistance. The US courts have since ruled that it is too late for the issue even to be considered as part of his "habeas corpus" appeal.

The state and federal courts with jurisdiction over capital cases in Virginia strictly adhere to the doctrine of "procedural default", which places limits on the ability of prisoners to introduce new issues on appeal in the higher courts. Since Breard never raised the Vienna Convention violation in the state courts, the federal courts have ruled that they are prevented from considering the merits of the claim. In effect, foreign nationals like Angel Breard are doubly penalized: once by the violation of their rights under the treaty and again on appeal, for not raising a timely objection to the failure of US authorities to notify them of those selfsame rights.

In response to the violation of Breard's consular rights, the Republic of Paraguay filed a civil suit in 1996 against Virginia officials. The suit seeks a court injunction to prohibit Angel Breard's execution and the vacating of his death sentence. However, the US Fourth Circuit Court dismissed the suit in January 1998, ruling that the Eleventh Amendment to the US Constitution prohibits a foreign government from suing a US state--even for non-compliance with an international treaty--in cases where there is no "ongoing violation" of the treaty [2].

In January, the Fourth Circuit Court also dismissed Breard's "habeas corpus" petition, finding that his Vienna Convention claim was procedurally defaulted. Senior Judge Butzner was so troubled by the violation of Article 36 that he issued a separate opinion on the importance of the Vienna Convention, which includes the following comments:

"The protections afforded by the Vienna Convention go far beyond Breard's case. United States citizens are scattered about the world...Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example...

The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty and all states of this nation."

Unless the US Supreme Court agrees to hear his final appeal, Angel Francisco Breard will face execution in Virginia on 14 April 1998. He would thus become the sixth foreign citizen to be executed in the United States since 1993. None were informed of their right under international law to obtain the crucial assistance of their consulates following arrest.

The Execution of 聲gel Breard: Apologies Are Not Enough

On 14 April 1998, in flagrant defiance of the International Court of Justice (ICJ), the Commonwealth of Virginia executed 聲gel Francisco Breard, a Paraguayan national born in Argentina, who was sentenced to death after being deprived of his treaty-based right to consular assistance.

The Breard case has raised a storm of controversy on three continents, after the execution was allowed to proceed in defiance of an explicit order from the ICJ requiring the United States to halt the proceedings.

No other US death penalty case in recent memory more tellingly reveals the glaring double standard which exists between the United States' human rights rhetoric abroad and its own domestic practices. The US government portrays itself as a world leader in the protection of human rights and as a champion of international law. Yet, when confronted with a unanimous opinion from the world's highest court compelling its compliance, the United States chose instead to renege on its binding treaty obligations.

The execution of 聲gel Francisco Breard is a human rights tragedy. It is also a shameful indictment of the United States' ambivalent commitment to the international rule of law.

聲gel Breard was sentenced to death in 1993 for the attempted rape and murder of Ruth Dickie in Arlington, Virginia. Before his trial, Breard rejected a plea bargain offer from the prosecution which would have resulted in a life sentence. Against the advice of his attorneys, Breard insisted on admitting his guilt on the witness stand and appealing to the jury for mercy, in the mistaken belief that they would show him leniency.

Virginia officials have never denied that they failed to inform Breard of his consular rights. By the time Paraguayan consular officers became aware of the treaty violation in 1996, the case had already progressed through the state appeal courts. In appeals filed in federal court, defence attorneys argued that consular officials would have persuaded Breard to accept the plea offer, by explaining the cultural and legal differences between the United States and his native country.

The case of 聲gel Breard is far from unique. In January, Amnesty International issued a report identifying more than 60 foreign nationals facing execution in the USA, most of whom were never informed of their right to seek the crucial assistance of their consulate following their arrest [1]. US police forces nationwide routinely fail to comply with Article 36 of the Vienna Convention on Consular Relations -- with disastrous consequences for foreign citizens who face the death penalty. The report noted that the US Government continues to oppose efforts by foreign nationals under sentence of death and their governments to obtain relief through the US courts.

Amnesty International subsequently made comprehensive recommendations to US Secretary of State Madeleine Albright which the organization believes would ensure better compliance with Article 36 within the United States. The organization also called on the US State Department to assist in the development of fair and effective remedies for past violations of Article 36 which resulted in death sentences for foreign nationals.

In March 1998, Amnesty International released a report highlighting the case of Breard, which outlined the refusal of the US courts to address the violation of his consular rights on purely procedural grounds [2]. That same month, attorneys representing both Breard and the Republic of Paraguay filed appeals with the US Supreme Court.

In support of Paraguay's appeal, Argentina, Brazil, Ecuador and Mexico filed a joint 'amicus curiae' (meaning a "friend of the court") brief with the US Supreme Court. The international brief outlines the significance of consular assistance under the Vienna Convention and stresses the necessity of developing an effective judicial remedy for violations of the treaty within the United States.

The international amicus brief points out that the US Department of State promptly and vigorously intervenes whenever US citizens detained abroad are deprived of their consular rights. As one example, the brief quoted the text of a State Department telegram to the Government of Syria, in which the United States protested the denial of consular access to two detained Americans:

"The recognition of these rights is prompted in part by consideration of reciprocity. States accord these rights to other states in the confident expectation that if the situation were to be reversed they would be accorded equivalent rights to protect their nationals. The Government of the Syrian Arab Republic can be confident that if its nationals were detained in the United States the appropriate Syrian officials would be promptly notified and allowed prompt access to those nationals".

As Breard's execution date approached, the Republic of Paraguay sought a binding ruling from the International Court of Justice that the execution of Breard not take place because of the violation of his consular rights. Under the terms of the Vienna Convention's Optional Protocol Concerning the Compulsory Settlement of Disputes, any dispute over the application or interpretation of the consular treaty falls under the compulsory jurisdiction of the International Court. Both the USA and Paraguay are signatories to the Optional Protocol and are thus required to comply with any rulings of the ICJ on this dispute.

On 7 April 1998, attorneys representing the USA and Paraguay presented arguments before the 15-member International Court of Justice, which is one of the six principal organs of the United Nations. Paraguay contended that the violation of Article 36 of the Vienna Convention had directly contributed to Breard's death sentence and that the appropriate remedy was for Virginia to retry him.

The USA responded by asserting that the ICJ had no jurisdiction over US criminal cases; US authorities had already provided the only available remedy by investigating the incident and apologizing to Paraguay. In an argument that belittled the importance of consular access by foreign nations, the United States claimed that the breach of Breard's consular rights had no impact on the criminal proceedings against him.

On 9 April, the ICJ unanimously ruled in favour of a "provisional measures" order, requiring the United States to "take all measures at its disposal" to stop Breard's execution, pending full adjudication by the International Court of the treaty violation itself. This historic ruling is believed to be the first time that the International Court of Justice has intervened to halt an execution anywhere in the world.

Several of the judges issued separate opinions on the ruling, including the President of the Court, US jurist Stephen M. Schwebel, who wrote, "An apology does not assist the accused". He also noted that the United States had a strong interest in seeing that Article 36 is honoured worldwide, if only to protect its own citizens abroad. "In my view, these considerations outweigh the serious difficulties which this order imposes on the authorities of the United States and Virginia".

Reaction was swift within the United States to the unprecedented ICJ initiative. The day after the ICJ hearing, the US Supreme Court immediately requested an opinion from the US Solicitor General on the views of the United States concerning the appeals filed by Paraguay and Breard. Following the ICJ ruling, the US State Department sent a letter to Virginia Governor James Gilmore, apprising him of the decision and requesting that he give it his "full consideration". A spokesperson responded by stating that the governor "will continue to follow the US courts and the United States Supreme Court" and that Virginia would oppose all motions for a stay of execution.

Reaction from other quarters was even less constructive. A spokesperson for Senator Jesse Helms, Chairman of the US Senate Foreign Relations Committee -- who appeared to have forgotten that the USA entered into the terms of the Vienna Convention voluntarily -- was quick to condemn the ruling. "It's an appalling intrusion by the United Nations into the affairs of the State of Virginia", Mark Thiessen said. "There's only one court that matters here. That's the Supreme Court. There's only one law that applies. That's the United States Constitution".

In the final days leading up to the execution, new appeals were filed with the Supreme Court based on the ICJ ruling. The US government told the Court that no stay of execution should be granted, because the assistance of consular officials would not have changed the outcome of the criminal proceedings.

In a move that showed the clear double standard of the US authorities (that they deem consular rights vital for US citizens but not for foreign nationals detained in their own country), US Secretary of State Madeleine Albright took the unprecedented step of sending a letter to the Governor of Virginia, asking him to grant a temporary reprieve to Breard in order to protect the safety and consular rights of US citizens detained abroad.

A spokesperson for Albright was quoted as stating that she wanted to ensure "that nothing that happens in this complicated legal situation undermines the important value that American citizens get...(by being) able to meet with consular officers overseas. We have to bear in mind in many parts of the world the justice systems are rather fragmentary and unfair in many occasions." Amnesty International has documented numerous unfair trials in death penalty cases, including trials within the United States.

Albright also appeared to be contradictory in her message to Governor Gilmore. Her letter emphasized that the "United States has vigorously defended Virginia's right to go forward with the sentence imposed on Mr Breard by Virginia's courts."

However, any potentially beneficial impact of the Secretary of State's letter was annulled by the simultaneous assertion by the US government that Virginia had a legal right to proceed with the execution.

At 7.35pm on 14 April, the US Supreme Court finally issued its decision on the Breard case, less than two hours before the scheduled execution. In a 6 to 3 ruling, the Court denied all appeals. Following a last-minute round of emergency appeals, 聲gel Francisco Breard was executed by lethal injection at 10.30 pm.

In its 7-page decision, the Supreme Court ruled that Breard had forfeited his right to appeal the violation of the Vienna Convention because he had failed to raise the issue in the state courts--even though he was unaware that the right existed. The Court further determined that Paraguay had no standing to seek a remedy by suing Virginia officials for non-compliance with the Vienna Convention, because the US Constitution prohibits suits by foreign governments against US states without their consent.

Amnesty International strongly believes that the Supreme Court's decision flies in the face of well-founded principles of international law and the dictates of common sense.

International commitments should be fulfilled in good faith and the authorities of a country cannot make themselves exempt from them by arguing that there are obstacles within their national law. The existence of national constitutional, legislative or regulatory norms cannot be invoked to avoid or modify the fulfilment of international obligations. These are the general principles of the rights of peoples in jurisprudence, as is the principle that internal jurisdictional decisions cannot be used as an obstacle for the fulfilment of international obligations. These principles are affirmed in article 27 of the Vienna Convention on the Law of Treaties, signed by the USA in 1970.

By citing domestic legal obstacles to absolve the United States of its binding treaty obligations, the Supreme Court decision is itself in breach of international law. Article 27 of the Vienna Convention on the Law of International Treaties clearly states that a nation "may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

Breard failed to raise a timely objection to the denial of his consular rights for one reason and one alone: because Virginia officials had never informed him of those rights to begin with--as required by Article 36. The Supreme Court's decision penalizes and victimizes foreign citizens ignorant of their consular rights. The brazen failure of state officials to meet their binding obligations under the Vienna Convention was an inconvenient truth that the Court chose simply to ignore.

Following the execution, Paraguayan officials expressed their resolve to pursue a binding judgement from the International Court of Justice against the United States, as a matter of principle. The ICJ has requested written submissions from Paraguay for 9 June and has instructed the USA to outline the steps it took to prevent the execution no later than 9 September.

Paraguayan officials could barely contain their outrage over the United States' failure to comply with the ICJ order. Deputy Foreign Minister Leila Rachid reportedly stated that "the United States has been the champion of democracy...let them be the first one to demonstrate to us the principles of democracy; let them also respect human rights". She reportedly added that "there is not an international summit at which they [the US government] do not preach the preservation of human rights".

Speaking to reporters on her way to attend the Summit of the Americas, Secretary of State Albright expressed her hope that the execution would not endanger the consular rights of Americans abroad, but that the United States "did the right thing". She went on to state:

"We have made very clear that it is essential any foreign national who is arrested for any told immediately that he or she is entitled to be in touch with their consulate. It is something that we will insist on and do insist on when one of our citizens is in trouble abroad."

During the Summit of the Americas, participants endorsed a statement calling for "full respect and compliance" with Article 36 of the Vienna Convention. Amnesty International welcomes this timely response from the Organization of American States. But as Amnesty International has previously stated, without fair and effective remedies for past violations of Article 36 in capital cases, any assurances of future domestic compliance from the US authorities can only be seen as hollow promises.

Amnesty International condemns the execution of 聲gel Francisco Breard in the strongest possible terms and is calling on all governments to express their dismay and disapproval to the United States authorities for their shameful undermining of the international rule of law.

The implications of the Breard execution go far beyond the undermining of US credibility in the international community or the potential danger to US citizens arrested abroad. Even more significantly, the United States has eroded the foundations of international justice and accountability, on which all protection of universal human rights ultimately rests.

Amnesty International is further calling on all governments not to follow the example of the United States, but rather to reaffirm their support for universal compliance with international human rights standards.

On 22 April 1998, the state of Arizona executed Honduran national Jose Villafuerte, despite objections from the Honduran government. Like so many foreign citizens condemned in the United States to the cruel, degrading and inhuman punishment of execution, Villafuerte was never informed after arrest of his fundamental right to obtain the assistance of his consulate. Other foreign nationals also face imminent execution in the United States.

Whether or not the USA will fulfil its pledge to uphold consular law in the aftermath of the execution of 聲gel Francisco Breard remains to be seen. But in the eyes of many members of the international community of nations, any further attempt by the US government to boast about its deep commitment to human rights protection will undoubtedly be seen as little more than arrogant hypocrisy.


(1) For further information see: USA: Violation of the Rights of Foreign Nationals Under Sentence of Death", AI Index: AMR 51/01/98.
(2) For further information see USA: 聲gel Francisco Breard: Facing Death in a Foreign Land, AI Index: AMR 51/14/98.

Amnesty International


Paraguayan national executed after appeals fail

April 15, 1998

JARRATT, Virginia (CNN) -- A Paraguayan man who stabbed a woman to death was executed Tuesday night despite requests by Secretary of State Madeleine Albright and the World Court that the sentence be delayed.

Angel Francisco Breard, 32, died by injection at Greensville Correctional Center. He was pronounced dead at 10:39 p.m.

Breard was flanked by an attorney and a spiritual advisor when he entered the death chamber. His final words were "May glory be to God," Department of Corrections spokesman Larry Traylor said.

The execution came after Virginia Gov. Jim Gilmore refused Tuesday night to block the sentence and the U.S. Supreme Court refused to intervene.

The high court refused his appeal at 8:30 p.m. and Gilmore denied his clemency petition shortly after 10 p.m., more than an hour after the execution originally was to take place.

Breard was convicted of the 1992 murder and attempted rape of Ruth Dickie, an Arlington neighbor.

Case sparked international legal dispute

Last week, the World Court ruled the execution should be stayed because Virginia authorities did not notify Paraguay of Breard's arrest, as required by the Vienna Convention, an international treaty signed by 130 nations including the United States. However, rulings by the 15-member U.N. tribunal are not binding.

In an unsigned opinion, the Supreme Court said Breard failed to assert his claim that the treaty was violated in state court and therefore lost his right to raise the issue in federal court.

The justices said even if Breard had proven a treaty violation, "it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial. ... In this case, no such showing could even arguably be made."

Justices John Paul Stevens and Stephen G. Breyer dissented from the ruling. "Virginia is now pursuing an execution schedule that leaves less time for argument and for court consideration than the court's rules provide for ordinary cases," Breyer wrote.

Justice Ruth Bader Ginsburg voted to grant a stay of execution to give the Supreme Court time to hear Breard's appeal.

High-level split

The case created a high-level split between two federal agencies.

On Monday, Albright asked Virginia's governor to voluntarily stay the execution, saying she was concerned the case could jeopardize the safety of Americans arrested in other countries.

But the Justice Department, in a brief filed Monday, recommended that the Supreme Court allow Virginia to execute Breard, saying there was no legal basis for halting the execution.

In a two-page letter to the Virginia governor, Albright said she was making the request to stay the execution with "great reluctance" because of the "aggravated" nature of Breard's crime and because of the lateness of the appeal.

But Albright wrote of "unique" international policy concerns, primarily the need to protect the rights of U.S. citizens detained abroad to have access to U.S. diplomats.

Governor 'concerned about safety'

The Virginia governor, who also had considered a clemency petition filed by Breard's lawyers, had said he would await guidance from the Supreme Court before making his decision.

In making his decision, Gilmore said delaying the execution "would have the practical effect of transferring responsibility from the courts of the commonwealth and the United States to the International Court."

Virginia authorities have acknowledged that they failed to inform Breard of his right under the Vienna Convention to contact the Paraguayan consulate for assistance. However, the Justice Department said in its Supreme Court brief that the error was "no basis for requiring the undoing of the lawfully imposed sentence of the courts of Virginia."

Breard's decisions at issue

Breard's lawyers have argued that because of the absence of help from Paraguayan officials, he made a number of "objectively unreasonable decisions" during the criminal proceedings, which they say were conducted without translation.

Not understanding the "fundamental differences between the criminal justice systems" of the United States and Paraguay, Breard chose to risk the death penalty instead of pleading guilty in exchange for life imprisonment, his lawyers said. U.S. authorities deny such a plea offer was made.

Arthur Karp, the assistant prosecutor who handled the case, said Breard had ample help from his lawyers and that Paraguay did not raise any concerns at the time. "It's difficult to believe anybody in the embassy cared," he said.

Paraguay, while making clear it is not seeking Breard's release from jail, had sought to win him a new trial. The country had called on Virginia again Tuesday to stay the execution.

Robert Tomlinson, one of Breard's two attorneys, said Breard "made choices against the advice of his attorneys and other people close to him."

Breard was convicted of stabbing Dickie, his 39-year-old neighbor, five times on February 17, 1992. He told police he intended to rape her but ran away when he heard someone knock on the door. Breard moved to the United States in 1986.

It was the second time in seven months that a national government has tried to stop a Virginia execution because of a treaty violation. Mario Benjamin Murphy was executed September 17 over objections from Mexico. The State Department also pressured then-Gov. George Allen to stop Murphy's execution.


Execution carried out despite stay calls

BBC News

Tuesday, April 14, 1998

A Paraguayan man, Angel Francisco Breard, has been executed in the state of Virginia despite calls for a stay and claims that the US may be in breach of international law.

The Governor of Virginia, James Gilmore, refused to block Breard's execution for the 1992 murder and attempted rape of a 39-year-old neighbour. Earlier, the US Supreme Court decided not to intervene.

The International Court of Justice (ICJ) and US Secretary of State Madeleine Albright had asked for the execution to be stayed but the Justice Department disagreed.

Justice officials have argued there is no legal reason to comply with the international court's request, and that to do so might even harm Virginia's right to carry out its lawful executions in a timely manner.

Paraguay claims that the United States violated the 1963 Vienna Convention, under which anyone arrested in a foreign country has the right to confer with a consular official.

Violation of international law

The treaty in question is the Vienna Convention on Consular Relations. This requires that any person arrested in a foreign country be promptly notified of their right to contact their embassy or consulate.

Diplomats are entitled to visit the accused and to help him or her arrange a legal defence.

This did not happen in Mr Breard's case, and on April 9, the World Court in The Hague called on the US to halt the execution while it decided whether Mr Breard had indeed been denied rights guaranteed under the Vienna Convention.


Clemency Denied, Paraguayan Is Executed

By David Stout - The New York Times

April 15, 1998

A Paraguayan citizen was executed tonight in Virginia for murder in a case that began as a terrible crime and became an international incident.

The inmate, Angel Francisco Breard, 32, was put to death by lethal injection in a state prison in Jarratt shortly before 11 P.M. He died some 2 1/2 hours after the Supreme Court voted, 6 to 3, not to block the execution and after Gov. James S. Gilmore 3d rejected a clemency plea.

The Justices issued their decision after considering a plea from the International Court of Justice that Mr. Breard be spared, and counterarguments from the Clinton Administration that Virginia should be allowed to mete out its punishment. Virginia has executed more people (50, counting Mr. Breard) since 1976 than any state except Texas.

Despite the seeming finality of the Supreme Court ruling, the Paraguayan Government began a rush of 11th-hour maneuvers immediately afterward. Through its lawyers, Paraguay sought a writ of habeas corpus from a Federal District Court judge in Richmond. When that judge denied the writ, the lawyers unsuccessfully sought help from the United States Court of Appeals for the Fourth Circuit, in Richmond, people close to the Governor say.

It was not immediately clear what grounds the defense lawyers seized upon. Writs of habeas corpus are typically sought when lawyers assert that there are new factors that were overlooked or could not have been known in the original appeals.

In any event, Governor Gilmore was not moved. ''As Governor of Virginia my first duty is to insure that those who reside within our borders -- both American citizens and foreign nationals -- may conduct their lives free from the fear of crime,'' he said late tonight.

The Governor called Mr. Breard's crime, the 1992 slaying of an Arlington woman during an attempted rape, ''heinous and depraved.'' He said that DNA testing had proved Mr. Breard's guilt beyond doubt, and that the defendant had admitted it.

Last week, the International Court of Justice urged the United States not to allow Mr. Breard to be executed. The international court noted that he had not been advised by arresting officers of his right to confer with Paraguayan consular officials -- a clear and undisputed violation of the Vienna Convention.

Prosecutors had argued that the violation could be remedied by a formal apology, and need not lead to a reprieve for a killer. The Supreme Court essentially agreed this evening.

Justices John Paul Stevens, Steven G. Breyer and Ruth Bader Ginsburg dissented. Each said the issues in the case were important enough to warrant a stay of execution.

While the international court's plea was not legally binding in the United States, it put a harsh spotlight on an issue -- capital punishment -- that has divided the United States from many other countries where executions no longer take place.

The execution is sure to aggravate, at least for a time, relations between the United States and the small Latin American country of Paraguay.

Some experts in international law have worried aloud in the past week that American travelers may be less safe overseas, now that their Government has at least implicitly trivialized a violation of the Vienna Convention, which requires that a person arrested in a foreign country be quickly notified of his right to communicate with his home country's consular officials.

The United States' Justice Department had argued that there should be no interference in Virginia's executing Mr. Breard. While Secretary of State Madeleine K. Albright officially asked Governor Gilmore to halt the execution, citing her fears for the safety of Americans abroad, she said that her request was tinged ''with great reluctance'' and that she recognized the horrible nature of the crime.

The Supreme Court announced its decision about 8:20 P.M., 40 minutes before the time originally set for the execution. ''The failure to notify the Paraguayan consul occurred long ago and has no continuing effect,'' the opinion stated in part.

Depressed and drunk, Mr. Breard, who had lived in the United States since 1986, forced himself into the apartment of Ruth Dickie on Feb. 17, 1992, tried to rape her, stabbed her several times in the neck and fled out the kitchen window, investigators said. He was arrested six months later, after another attempted rape, and was soon linked to the slaying.

His defenders have argued that, had he been allowed to talk to Paraguayan officials, he might have been persuaded to plead guilty and accept a life sentence. Instead, against his lawyers' advice, he pleaded not guilty and testified that a curse placed upon him by his father-in-law had impelled him to kill. The jury disagreed and recommended death for Mr. Breard.


Angel Francisco Breard will die today

Within a few hours after this is posted, Angel Francisco Breard will be dead. He is a Paraguayan citizen with no prior criminal record.

In 1985, Breard sustained serious head injuries in a car accident, which rendered him unconscious for several days. On 17 February 1992, Ruth Dickie was assaulted and stabbed to death in her apartment. Breard was arrested and charged with attempted rape and capital murder. He has never denied his involvement in the murder. However, he has always insisted that he committed the murder because of a satanic curse placed on him by his former father-in-law. He believed that the jury would be more lenient if he admitted committing the crime and expressed his remorse to them. This belief was based on his impression of trial procedures in his native Paraguay. He was sentenced to death on June 25, 1993.

The Consulate of the Government of Paraguay was not notified that Breard was even in custody until 1996, three years after the death sentence had been passed. This was a clear violation of the obligations of the United States under an international treaty, the Vienna Convention on Consular Relations.

In a brief filed late Monday, the Clinton administration told the justices of the United States Supreme Court that despite an order last week by the International Court of Justice that the United States "take all measures at its disposal" to stop Virginia from executing a Paraguayan citizen, there was no legal basis for granting requests by Paraguay and the prisoner for a stay of execution.

Americans are arrested overseas frequently. Each country in which Americans travel know that when an American is arrested, the US Consulate must be notified immediately. Having a consular officer come to the jail cell shortly after the arrest and then make periodic inquiries into the status of the case is an important factor in securing the release of Americans from custody abroad.

There is no doubt that had the Government of Paraguay been informed that Breard was in jail, he would not have been convicted at all and, if convicted, he would have received a much lesser sentence than death.

For example, the Government of Paraguay would have been in the best position to inform Breard that his defense, which was that he was "under a satanic curse", would not get him off the charges in Virginia. Rather, that defense virtually guaranteed that religiously fanatical Virginia would order his execution.

The reason why Breard has almost no hope absent a miracle of escaping the death sentence today is that Virginia has constructed a web of rules which make it almost impossible for any wrongfully accused person to defend himself. In the case of Breard, his habeas corpus claims will fail because of the Virginia rule on "procedural default". The way this rule works is that there is one time and one time only when a particular sort of defense can be raised.

For example, the defense of inadequate representation of counsel is procedurally barred in a criminal appeal in Virginia, although this defense is considered valid in all of the other 49 states. Indeed, inadequate representation of counsel is probably the leading grounds for appellate reversal in the other states. The fact that this ground is not allowed in Virginia is probably the main reason why criminal convictions are almost never overturned in Virginia.

In addition, Virginia is the only state which has not waived its Eleventh Amendment right to Sovereign Immunity. As a result, Virginia is not subject to federal laws which apply to the other states. At the same time, because Virginia is not a country, it is not subject to international law as well.

Furthermore, as sports broadcaster Marv Albert found out last year, 90% of the defenses which the courts will entertain in other states are not allowed in Virginia. For example, in Albert's case, he was not allowed to inform the jury that the prosecutrix against him had offered to bribe a witness $50,000 to lie to the jury about Albert. The prosecutrix made it clear that this $50,000 would come from the profits she expected to reap from selling her story after Albert was convicted.

Albert's attorney, who was from another state, was flabbergasted when he learned that the judge would not allow the jury to learn anything negative about the background of the only witness against Albert. Albert was eventually forced to plead guilty to a misdemeanor rather than risk many years in prison, in a case which would have been entirely thrown out of court in any normal state.

These are not isolated examples. The prisons of Virginia are filled with thousands of innocent inmates who would never have been convicted in any other state.

As I see it, Virginia will continue to engage in these criminal acts until something very dramatic occurs. What needs to happen, in my view, is that the present Governor of Virginia, James Gilmore , who was also the Attorney General of Virginia when Angel Francisco Breard was tried and convicted, needs to be prosecuted by the International Court of Justice. Gilmore, who has ordered the execution of Angel Francisco Breard in clear violation of international law, needs to be picked up and transported to stand trial in The Hague, just the same way that Bosnian Serb War Criminals are picked up and held for trial there.

I must mention that I have a particular reason for interest in this subject, because James Gilmore was also involved in the kidnapping of my daughter, Shamema Honzagool Sloan, from Abu Dhabi, United Arab Emirates in 1990.

Sam Sloan


134 F.3d 615

Angel Francisco Breard, Petitioner-appellant,
Samuel v. Pruett, Warden, Mecklenburg Correctional Center, respondent-appellee.

The Human Rights Committee of the American Branch of The International Law Association, Amicus Curiae

United States Court of Appeals, Fourth Circuit.

Argued Oct. 1, 1997.
Decided Jan. 20, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge WILLIAMS joined. Senior Judge BUTZNER wrote a concurring opinion.

HAMILTON, Circuit Judge:

Following a jury trial in the Circuit Court for Arlington County, Virginia, Angel Francisco Breard, a citizen of both Argentina and Paraguay, was convicted and sentenced to death for the murder of Ruth Dickie. He now appeals the district court's denial of his petition for writ of habeas corpus. See 28 U.S.C. 2254. We affirm.


* In February 1992, Ruth Dickie resided alone at 4410 North Fourth Road, Apartment 3, in Arlington County, Virginia. At about 10:30 or 10:45 p.m. on February 17, 1992, Ann Isch, who lived in an apartment directly below Dickie's, heard Dickie and a man arguing loudly in the hall. According to Isch, the arguing continued as she heard Dickie and the man enter Dickie's apartment. Almost immediately thereafter, Isch called Joseph King, the maintenance person for the apartment complex. Upon arriving at Dickie's apartment, King knocked on the door and heard a noise that sounded like someone was being dragged across the floor. After receiving no response to his knocking, King called the police.

When the police arrived, they entered Dickie's apartment with a master key that King provided. Upon entering the apartment, the police found Dickie lying on the floor. She was on her back, naked from the waist down, and her legs were spread. She was bleeding and did not appear to be breathing. The police observed body fluid on Dickie's pubic hair and on her inner thigh. Hairs were found clutched in her bloodstained hands and on her left leg. Dickie's underpants had been torn from her body. A telephone receiver located near her head was covered with blood.

An autopsy revealed that Dickie had sustained five stab wounds to the neck; two of which would have caused her death. Foreign hairs found on Dickie's body were determined to be identical in all microscopic characteristics to hair samples taken from Breard. Hairs found clutched in Dickie's hands were Caucasian hairs microscopically similar to Dickie's own head hair and bore evidence that they had been pulled from her head by the roots. Semen found on Dickie's pubic hair matched Breard's enzyme typing in all respects, and his DNA profile matched the DNA profile of the semen found on Dickie's body.

Breard was indicted on charges of attempted rape and capital murder. Following a jury trial, he was convicted of both charges. The jury fixed Breard's punishment for the attempted rape at ten years' imprisonment and a $100,000 fine. In the bifurcated proceeding, the jury heard evidence in aggravation and mitigation of the capital murder charge. Based upon findings of Breard's future dangerousness and the vileness of the crime, the jury fixed Breard's sentence at death. The trial court sentenced Breard in accordance with the jury's verdicts.

Breard appealed his convictions and sentences to the Supreme Court of Virginia, and that court affirmed. See Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994). On October 31, 1994, the United States Supreme Court denied Breard's petition for a writ of certiorari. See Breard v. Virginia, 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994)

On May 1, 1995, Breard sought state collateral relief in the Circuit Court for Arlington County by filing a petition for writ of habeas corpus. On June 29, 1995, the circuit court dismissed the petition. On January 17, 1996, the Supreme Court of Virginia refused Breard's petition for appeal.

Breard then sought federal collateral relief in the United States District Court for the Eastern District of Virginia by filing a petition for writ of habeas corpus on August 30, 1996. On November 27, 1996, the district court denied relief. See Breard v. Netherland, 949 F.Supp. 1255 (E.D.Va.1996). On December 24, 1996, Breard filed a timely notice of appeal. On April 7, 1997, the district court granted Breard's application for a certificate of appealability as to all issues raised by Breard in his application. See 28 U.S.C. 2253; Fed. R.App. P. 22.


* The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), amended, among other things, 28 U.S.C. 2244 and 壯 2253-2255, which are parts of the Chapter 153 provisions that govern all habeas proceedings in federal courts. The AEDPA, which became effective on April 24, 1996, also created a new Chapter 154, applicable to habeas proceedings against a state in capital cases. The new Chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for the appointment and compensation of competent counsel. In Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that 107(c) of the AEDPA, which explicitly made new Chapter 154 applicable to cases pending on the effective date of the AEDPA, created a "negative implication ... that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Id. at ----, 117 S.Ct. at 2068. Thus, under Lindh, if a habeas petition was filed before April 24, 1996, the pre-AEDPA habeas standards apply. See Howard v. Moore, 131 F.3d 399, 403-04 (4th Cir.1997) (en banc ) ("Howard filed his habeas petition in the district court prior to April 26, 1996, the effective date of the AEDPA. We, therefore, review Howard's claims under pre-AEDPA law." (footnote omitted)). For habeas petitions filed after April 24, 1996, then, the Chapter 153 provisions apply, see Murphy v. Netherland, 116 F.3d 97, 99-100 & n. 1 (4th Cir.1997) (applying amended 2253 in case where state prisoner filed federal habeas petition after the effective date of the AEDPA), and the Chapter 154 provisions apply if the state satisfies the "opt-in" provisions.

Breard filed his federal habeas petition on August 30, 1996. Accordingly, the Chapter 153 provisions apply. See Howard, 131 F.3d 399, 403-04. With respect to the Chapter 154 provisions, the district court held that they did not apply because the Commonwealth of Virginia did not satisfy the "opt-in" provisions of the AEDPA. See Breard v. Netherland, 949 F.Supp. at 1262. Because the Commonwealth of Virginia has not appealed this ruling and the record is not developed on this point, we decline to address whether the Commonwealth of Virginia's mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel satisfies the "opt-in" provisions of the AEDPA. Cf. Bennett v. Angelone, 92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether the procedures established by the Commonwealth of Virginia for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel satisfy the "opt-in" requirements, which would render those provisions applicable to indigent Virginia prisoners seeking federal habeas relief from capital sentences if an initial state habeas petition was filed after July 1, 1992), cert. denied, --- U.S. ----, 117 S.Ct. 503, 136 L.Ed.2d 395 (1996). However, we are confident that the "opt-in" provisions are of no help to Breard.


Initially, Breard contends that his convictions and sentences should be vacated because, at the time of his arrest, the Arlington County authorities failed to notify him that, as a foreign national, he had the right to contact the Consulate of Argentina or the Consulate of Paraguay pursuant to the Vienna Convention on Consular Relations, see 21 U.S.T. 77. The Commonwealth of Virginia argues that Breard did not raise his Vienna Convention claim in state court and thus failed to exhaust available state remedies.

Furthermore, because Virginia law would now bar this claim, the Commonwealth of Virginia argues that Breard has procedurally defaulted this claim for purposes of federal habeas review. The district court held that, because Breard had never raised this claim in state court, the claim was procedurally defaulted and that Breard failed to establish cause to excuse the default. See Breard v. Netherland, 949 F.Supp. at 1263. Breard's failure to raise this issue in state court brings into play the principles of exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to consider alleged constitutional errors occurring in a state prisoner's trial and sentencing, a state prisoner must exhaust all available state remedies before he can apply for federal habeas relief. See Matthews v. Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 102, 139 L.Ed.2d 57 (1997); see also 28 U.S.C. 2254(b).

To exhaust state remedies, a habeas petitioner must fairly present the substance of his claim to the state's highest court. See Matthews, 105 F.3d at 911. The exhaustion requirement is not satisfied if the petitioner presents new legal theories or factual claims for the first time in his federal habeas petition. See id. The burden of proving that a claim is exhausted lies with the habeas petitioner. See Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.1994).

A distinct but related limit on the scope of federal habeas review is the doctrine of procedural default. If a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-55, 115 L.Ed.2d 640 (1991). A procedural default also occurs when a habeas petitioner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred." Id. at 735 n. 1, 111 S.Ct. at 2557 n. 1.

Under Virginia law, "a petitioner is barred from raising any claim in a successive petition if the facts as to that claim were either known or available to petitioner at the time of his original petition." Hoke v. Netherland, 92 F.3d 1350, 1354 n. 1 (4th Cir.) (internal quotes omitted), cert. denied, --- U.S. ----, 117 S.Ct. 630, 136 L.Ed.2d 548 (1996); Va.Code Ann. 8.01-654(B)(2) ("No writ [of habeas corpus ad subjeciendum] shall be granted on the basis of any allegation the facts of which petitioner had knowledge at the time of filing any previous petition."). Breard contends that he had no reasonable basis for raising his Vienna Convention claim until April 1996 when the Fifth Circuit decided Faulder v. Johnson, 81 F.3d 515 (5th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 487, 136 L.Ed.2d 380 (1996).

In that case, the court held that an arrestee's rights under the Vienna Convention were violated when Texas officials failed to inform the arrestee of his right to contact the Canadian Consulate. Id. at 520. Breard further maintains that he could not have raised his Vienna Convention claim in his state habeas petition because the Commonwealth of Virginia failed to advise him of his rights under the Vienna Convention. These allegations, however, are inadequate to demonstrate that the facts upon which Breard bases his Vienna Convention claim were unavailable to him when he filed his state habeas petition.

In Murphy, we rejected a state habeas petitioner's contention that the novelty of a Vienna Convention claim and the state's failure to advise the petitioner of his rights under the Vienna Convention could constitute cause for the failure to raise the claim in state court. See 116 F.3d at 100. In reaching this conclusion, we noted that a reasonably diligent attorney would have discovered the applicability of the Vienna Convention to a foreign national defendant and that in previous cases claims under the Vienna Convention have been raised:

The Vienna Convention, which is codified at 21 U.S.T. 77, has been in effect since 1969, and a reasonably diligent search by Murphy's counsel, who was retained shortly after Murphy's arrest and who represented Murphy throughout the state court proceedings, would have revealed the existence and applicability (if any) of the Vienna Convention. Treaties are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.

Counsel in other cases, both before and since Murphy's state proceedings, apparently had and have had no difficulty whatsoever learning of the Convention. See, e.g., Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996); Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir.1993); Mami v. Van Zandt, No. 89 Civ. 0554, 1989 WL 52308 (S.D.N.Y. May 9, 1989); United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.1980); United States v. Calderon-Medina, 591 F.2d 529 (9th Cir.1979); United States v. Vega-Mejia, 611 F.2d 751, 752 (9th Cir.1979).


Murphy forecloses any argument that Breard could not have raised his Vienna Convention claim at the time he filed his initial state habeas petition in May 1995. Accordingly, Breard's Vienna Convention claim would be procedurally defaulted if he attempted to raise it in state court at this time. Having reached this conclusion, we can only address Breard's defaulted Vienna Convention claim if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.

In order to demonstrate "cause" for the default, Breard must establish "that some objective factor external to the defense impeded counsel's efforts" to raise the claim in state court at the appropriate time. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986); see also Murphy, 116 F.3d at 100 (applying Murray and finding that petitioner failed to establish cause to excuse the default of his Vienna Convention claim)

For the same reasons discussed above, Breard asserts that the factual basis for his Vienna Convention claim was unavailable to him at the time he filed his state habeas petition and, therefore, he has established cause. But, under Murphy, Breard's showing is insufficient to allow this court to conclude that the factual basis for his Vienna Convention claim was unavailable. Consequently, there is no cause for the procedural default. Accordingly, we do not discuss the issue of prejudice. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir.1995) (noting that once court finds the absence of cause, court should not consider the issue of prejudice to avoid reaching alternative holdings), cert. denied, 517 U.S. 1171, 116 S.Ct. 1575, 134 L.Ed.2d 673 (1996).

Finally, we find it unnecessary to address the issue of whether the AEDPA abrogated the "miscarriage of justice" exception to the procedural default doctrine. Assuming arguendo that the AEDPA has not eliminated the miscarriage of justice exception articulated in Murray, 477 U.S. at 495-96, 106 S.Ct. at 2649-50 (miscarriage of justice exception available to those who are actually innocent), and Sawyer v. Whitley, 505 U.S. 333, 350, 112 S.Ct. 2514, 2524-25, 120 L.Ed.2d 269 (1992) (miscarriage of justice exception available to those who are actually innocent of the death penalty, i.e., those habeas petitioners who prove by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty), no miscarriage of justice occurred here. In no set of circumstances has Breard made a showing that he is actually innocent of the offense he committed, see Murray, 477 U.S. at 495-96, 106 S.Ct. at 2649-50, or innocent of the death penalty in the sense that no reasonable juror would have found him eligible for the death penalty, see Sawyer, 505 U.S. at 350, 112 S.Ct. at 2524-25. Accordingly, Breard is entitled to no relief on his Vienna Convention claim.C

Breard also contends that his death sentence violates Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and its progeny. In asserting this claim, Breard argues that: (1) given the prosecutor's alleged offer to forego the death penalty if Breard would plead guilty, the prosecutor violated his constitutional rights by seeking and obtaining a death sentence once Breard insisted upon pleading not guilty; (2) the Commonwealth of Virginia imposes the death penalty arbitrarily in capital murder cases; and (3) his death sentence is unconstitutionally disproportionate.

The first two claims mentioned above were never raised in state court. The remaining claim was raised on direct appeal, but only as a state law claim, and on the appeal from the denial of state habeas relief the Virginia Supreme Court found this claim procedurally barred under the rule of Slayton v. Parrigan, 215 Va. 27, 205 S.E.2d 680 (1974) (holding that issues not properly raised on direct appeal will not be considered on state collateral review). Because Breard has not established cause for the obvious procedural default of these claims or that a miscarriage of justice would result by our failure to consider any one of these claims, we cannot address the merits.


Finally, Breard argues that the aggravating circumstances instructions given by the trial court are unconstitutionally vague. This claim is not procedurally barred because the Supreme Court of Virginia rejected it on direct appeal. See Breard v. Commonwealth, 445 S.E.2d at 675. In his brief, Breard concedes that we have upheld similar instructions in the recent cases of Bennett, 92 F.3d at 1345 (rejecting vagueness challenge to the Commonwealth of Virginia's vileness aggravating circumstance), and Spencer v. Murray, 5 F.3d 758, 764-65 (4th Cir.1993) (rejecting vagueness attack on the future dangerousness aggravator).

Furthermore, Breard states that he is raising this claim on appeal only "to preserve this claim for future review should such be necessary." See Petitioner's Br. at 37. As a panel of this court, we are bound by Bennett and Spencer, see Jones v. Angelone, 94 F.3d 900, 905 (4th Cir.1996) (one panel of this court may not overrule another panel's decision); therefore, we must reject Breard's attack on the constitutionality of the aggravating circumstances instructions given by the trial court.


For the reasons stated herein, the judgment of the district court is affirmed.



BUTZNER, Senior Circuit Judge, concurring:

I concur in the denial of the relief requested by Angel Francisco Breard. I write separately to emphasize the importance of the Vienna Convention.

* The Vienna Convention facilitates "friendly relations among nations, irrespective of their differing constitutional and social systems." The Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963, 21 U.S.T. 78, 79 (ratified by the United States Nov. 12, 1969). Article 36, provides:

1. With a view to facilitating the exercise of consular functions relating to nationals 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 subparagraph;

(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. Id. at 101.


The Vienna Convention is a self executing treaty--it provides rights to individuals rather than merely setting out the obligations of signatories. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996) (assuming the same). The text emphasizes that the right of consular notice and assistance is the citizen's. The language is mandatory and unequivocal, evidencing the signatories' recognition of the importance of consular access for persons detained by a foreign government.

The provisions of the Vienna Convention have the dignity of an act of Congress and are binding upon the states. See Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. 247, 253-54, 28 L.Ed. 798 (1884). The Supremacy Clause mandates that rights conferred by a treaty be honored by the states. United States Const. art. VI, cl. 2. The provisions of the Convention should be implemented before trial when they can be appropriately addressed. Collateral review is too limited to afford an adequate remedy.


The protections afforded by the Vienna Convention go far beyond Breard's case. United States citizens are scattered about the world--as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example. Public officials should bear in mind that "international law is founded upon mutuality and reciprocity...." Hilton v. Guyot, 159 U.S. 113, 228, 16 S.Ct. 139, 168, 40 L.Ed. 95 (1895).

The State Department has advised the states, including Virginia, of their obligation to inform foreign nationals of their rights under the Vienna Convention. It has advised states to facilitate consular access to foreign detainees. Prosecutors and defense attorneys alike should be aware of the rights conferred by the treaty and their responsibilities under it. The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty and all states of this nation.



Angel Francisco Breard



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