Medellin, a Mexican national who spent most of his life in the United
States, was condemned for the June 1993 murders of Jennifer Ertman, 14,
and Elizabeth Peña, 16. The girls were repeatedly gang raped for an hour,
then strangled with a belt and shoelace after they stumbled into a
drunken gang initiation rite while cutting through the park to get home
before their curfew.
Four days after the crime, a tip from a gang
member's brother led authorities to the bodies, then to the suspects.
Within three hours of his arrest, Medellin admitted his role in the
gruesome murders, appalling authorities with his boastful, callous
description of the night's events.
Accomplices Peter Cantu, Raul
Villareal, Efrain Perez, Sean Derrick O'Brien were also convicted and
received death sentences, though the sentences of Perez and Villareal
were later commuted to life imprisonment.
Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004) (Habeas).
"I am sorry my actions caused pain. I hope this brings closure to what
you seek. Don't ever hate them for what they do. Never harbor hate. I
love you. Alright Warden."
Texas Department of Criminal
Executed Offenders (Jose Medellin)
Inmate: Jose Ernesto Medellin
Date of Birth: 03/04/75
Date Received: 01/06/95
Education: 9 years
Date of Offense: 06/24/93
County of Offense: Harris
Native County: Mexico
Hair Color: Black
Eye Color: Brown
Height: 05' 05"
Weight: 131 lb
Co-Defendants: Peter Cantu, Raul Villareal, Efrain Perez, Sean
Texas Attorney General
Tuesday, July 29, 2008
Media Advisory: Jose Medellin Scheduled For Execution
AUSTIN – Texas Attorney General Greg Abbott offers
the following information on Jose Ernesto Medellin, who is scheduled to
be executed after 6 p.m. Tuesday, August 5, 2008. Medellin was sentenced
to die for the June 24, 1993, capital murder of Elizabeth Pena in
Houston. A summary of the evidence presented at trial follows.
FACTS OF THE CRIME
On the night of June 24, 1993, 14-year-old Jennifer
Ertman and 16-year-old Elizabeth Pena were walking home when they
encountered a gang initiation.
The gang members present were Jose Medellin, Peter
Cantu, Roman Sandoval, Efrain Perez, Raul Villareal and Sean O’Brien.
Roman’s brother, Frank, and Medellin’s 14–year-old brother, Venancio,
tagged along. The initiation involved fighting each member of the gang
for a five- to ten- minute period.
As the girls passed Medellin, he attempted to engage
Elizabeth in conversation. When Elizabeth tried to run from Medellin, he
grabbed her and threw her to the ground. Elizabeth screamed for Jennifer
to help her. In response to her friend’s cries, Jennifer ran back to
help, but Peter and Sean grabbed her and threw her down as well. At this
point, the Sandoval brothers decided that it was time to leave.
Subsequent boastful statements of Medellin and other
gang members revealed that what ensued was a brutal gang rape of both
girls by the gang members. After the assault, Medellin, Raul, Efrain,
and Peter met at Peter’s house where he lived with his brother and
sister-in-law, Joe and Christina Cantu, to brag about their exploits.
Christina noticed that Raul was bleeding and that Efrain had blood on
his shirt. She asked the group what had occurred and Medellin responded
that they “had fun” and that their exploits would be seen on the
television news. Medellin was hyper, giggling, and laughing. He boasted
to Joe and Christina that the group had met two girls and had sex with
them. He also told the couple that the two girls had been talking to
them and that he punched one of the girls because she had started
screaming after he grabbed her.
Medellin told Joe and Christina that he sexually
assaulted both girls. Peter joined the group shortly thereafter and
began to divide up the money and jewelry that had been taken from the
two girls. Peter gave Medellin a ring with an “E” design on it so that
he could give it to his girlfriend, Esther.
When Christina asked the group what happened to the
girls, Medellin told her that they had been killed so that they could
not identify their attackers. Medellin then elaborated that it would
have been easier with a gun, but because they did not have one at the
scene of the incident, he took off one of his shoelaces and strangled at
least one of the girls with it. Both Joe and Christina noted that
Medellin complained of the difficulty the group encountered in killing
the girls. After Medellin related the difficulty he encountered in
strangling one of the girls, he said that he put his foot on her throat
because she would not die.
Christina later convinced her husband to report the
incident to the police. By the time bodies were discovered, they were so
badly decomposed that dental records were required to identify them.
However, enough tissue remained for the medical examiner to determine
that each girl had died of a trauma to the neck consistent with
Eventually, all of the individuals who participated
in the rapes and murders were arrested. After Medellin was arrested, he
gave a written and tape-recorded statement, the latter of which was
never offered into evidence at trial. In the written statement, Medellin
admitted to having oral sex with Elizabeth, but commented that he only
peripherally participated in her murder.
September 23, 1993 -- Medellin was indicted in Harris
County for murdering Elizabeth Pena during the course of committing
kidnapping, robbery, and aggravated sexual assault.
September 16, 1994 -- Medellin was found guilty by a jury.
October 11, 1994 -- Following a separate punishment hearing, Medellin
was sentenced to death.
March 26, 1998 -- Medellin filed an application for a state writ of
October 3, 2001 -- The Texas Court of Criminal Appeals denied writ.
November 28, 2001 -- Medellin filed a federal petition for writ of
June 25, 2003 -- The federal district court dismissed Medellin’s federal
October 24, 2003 -- Medellin requested permission to appeal from the 5th
U.S. Circuit Court of Appeals.
May 20, 2004 -- The Fifth Circuit Court denied Medellin’ request to
August 18, 2004 -- Medellin petitioned the U.S. Supreme Court for writ
May 23, 2005 -- The Supreme Court dismissed the writ as improvidently
March 24, 2005 -- Medellin filed a second state application for writ of
November 15, 2006 -- The Texas Court of Criminal Appeals dismissed
November 16, 2006 -- Medellin filed a second federal petition for writ
of habeas corpus.
January 16, 2007 -- Medellin petitioned the U.S. Supreme Court for a
writ of certiorari.
April 30, 2007 -- The United States Supreme Court grants writ of
March 25, 2008 -- The Supreme Court affirmed the Court of Criminal
July 22, 2008 -- U.S. District court dismissed Medellin’s second federal
PRIOR CRIMINAL HISTORY
Medellin was referred for a weapons charge as a
juvenile in 1992. Later that same year, Medellin was arrested and
charged with the offense of carrying a weapon.
Medellin executed for rape, murder of Houston
By Allan Turner and Rosanna Cruz - Houston Chronicle
Aug. 6, 2008
HUNTSVILLE — The state of Texas defied an
international court and executed Jose Ernesto Medellin late Tuesday
after the U.S. Supreme Court denied a stay of execution for the killer
in the 1993 Houston gang rape-murders of two teenage girls.
Medellin, 33, was pronounced dead by lethal injection
at 9:57 p.m., nine minutes after receiving the fatal cocktail and nearly
four hours after his scheduled 6 p.m. execution. In his final statement,
Medellin apologized for his crime: "I'm sorry that my actions brought
you pain. I hope this brings the closure to what you seek," he said. "Don't
ever hate them for what they do. Never harbor hate."
He then looked toward the witness room in which his
friend, Sandra Crisp, was watching, crying softly, and smiled. "I love
you," he said. In the adjoining witness room, relatives of the two
victims watched with little apparent emotion.
Medellin, a Mexican national who spent most of his
life in the United States, was condemned for the June 1993 murders of
Jennifer Ertman, 14, and Elizabeth Peña, 16. The girls were raped and
strangled with a belt and shoelace after they stumbled into a drunken
gang initiation rite while cutting through the park to get home before
Four days after the crime, a tip from a gang member's
brother led authorities to the bodies, then to the suspects. Within
three hours of his arrest, Medellin admitted his role in the gruesome
murders, appalling authorities with his boastful, callous description of
the night's events.
At issue in Medellin's last-minute appeal was his
assertion that authorities refused his right to contact the Mexican
Consulate after his arrest. By doing so, his attorneys argued, officials
violated a 1963 treaty signed by the U.S. and 165 other countries that
should have granted him access. His case stirred international
controversy when the United Nations' high court found his rights had
been violated. The court ordered the execution be stayed.
While some cheered Texas' decision to execute him on
Tuesday, others warned that his death could render the treaty void,
putting the lives of American citizens arrested overseas in jeopardy.
The fathers of the victims, however, expressed relief.
"It's a long time coming," Adolfo Peña said, "Fifteen years is a long
time. I wish those two girls could've lived that long." Randy Ertman
stood with his arm around Christina Alamaraz, a close friend. He said
recent media attention had been too focused on Medellin and not their
Sandra Babcock, a law professor at Northwestern
University in Chicago and an attorney for Medellin, said the case was
not just about one Mexican national on death row. "It's also about
ordinary Americans who count on the protections of the consulate when
they travel abroad in strange lands," she said. "It's about the
reputation of the U.S. as a nation that adheres to the rule of law."
Hours before the execution, death penalty supporters
and opponents gathered at Huntsville's Walls Unit, site of the state
execution chamber. Elaine Jackson of Houston, who identified herself as
a friend of the Peñas, was among those supporting the execution. "The
girls didn't get a second chance, why should he?" Jackson demanded. "Why
should he keep on breathing?"
On the other side of the street, Nancy Bailey was
among those opposing the execution. Putting Medellin to death, she said,
would flout the nation's treaty commitments and endanger Americans
Medellin, who granted few interviews on death row,
told a Mexican news reporter that he'd had 15 years in prison to compose
his emotions. On Monday and Tuesday he visited with his parents, whom he
had not seen since 2001, and spoke by phone with his younger brother,
who is serving 40 years for his part in the crime.
Jose Medellin had insisted he told police he was a
Mexican citizen; Gov. Rick Perry's office said he did not. In 2004, the
world court, acting on a Mexican lawsuit against the U.S., ordered
hearings to determine if the cases of Medellin and dozens of other
Mexican nationals in custody had been damaged by the treaty violations.
President Bush urged the hearings be held. Texas,
however, appealed to the U.S. Supreme Court, which held that only
Congress had authority to demand such hearings. Weeks after the decision,
a bill retroactively calling for the hearings was introduced in Congress.
The bill, however, remains in legislative limbo.
"Outside of Texas this is a huge diplomatic misstep,"
said Columbia Law School professor Sarah Cleveland. "Unfortunately, I
doubt the international community is likely to brush this off as simply
the actions of Texas. In the international community ... the United
States is responsible for Texas' actions."
Judge Cathy Cochran, of the Texas Court of Criminal
Appeals, took a different view. "Some societies may judge our death
penalty barbaric," she noted. "Most Texans, however, consider death a
just penalty in certain rare circumstances. Many Europeans disagree. So
Medellin was the second person executed for the
attack. Derrick O'Brien was put to death in July 2006. Gang leader Peter
Cantu remains on death row. Two others, 17 at the time of the crime, had
their death sentences commuted to life in prison.
Court decision sends Medellin to death
By Kristin Edwards - Huntsville Item
August 6, 2008
After a lengthy wait for a U.S. Supreme Court
decision Tuesday night, 33-year-old Jose Medellin was executed for his
part in the 1993 gang-rape and murder of two teenage girls. The lethal
injection began flowing at 9:48 p.m., and Medellin was pronounced dead
at 9:57 p.m.
Medellin’s execution was scheduled to take place at 6
p.m. Tuesday, but at that point, the Supreme Court had not yet released
its ruling on an appeal filed by Medellin’s attorneys days before.
At approximately 9:20 p.m., a split decision by the
court was released indicating that the court had dismissed the attorneys’
request for a stay of execution, giving the state the go-ahead to carry
out the lethal injection. Without any further appeals pending, Medellin
was taken from his holding cell in the Texas Department of Criminal
Justice Walls Unit and prepared for the lethal injection.
According to Michelle Lyons, TDCJ public information
officer, Medellin was apologetic in his last statement, addressing the
families of his victims and saying “I love you” to his personal
witnesses. “I am sorry my actions caused pain, and I hope this bring the
closure you seek,” Medellin said Tuesday night at approximately 9:48 p.m.
“Never harbor hate — I love you.”
While making his final statement, Medellin appeared
to have tears in his eyes as he twice told his personal witnesses he
loved them. As the lethal solution took effect, Medellin’s eyes appeared
to be slightly open.
Medellin’s case gained international attention when
Mexican officials complained that its nationals on death row — of which
Medellin was only one of approximately 50 — were not informed of their
right to consular access and assistance during trial. That alleged
denial, Mexico claimed, was a violation of rights guaranteed in the
Following the execution, Medellin’s attorney Sandra
Babcock made a statement to the multitude of local and international
media who had gathered outside of the Walls Unit. “In a situation like
this, it’s hard to talk about what’s next,” Babcock said. “Now, more
than ever, it is important to think not only about the fate of one
Mexican (national), but about the safety of Americans who travel abroad
to strange lands. “It is now imperative that Congress act to restore the
Medellin was originally sentenced to death after he
and five others gang-raped and murdered 16-year-old Elizabeth Pena and
14-year-old Jennifer Ertman in Houston. The girls walked past Medellin
and five other gang members during a gang initiation, and according to
reports, each of the gang members took active roles in the assaults and
murders of both girls. Medellin was 18 years old at the time of the
Pena’s father, Adolfo Pena, spoke briefly following
the execution to express his gratitude to Gov. Rick Perry. “We feel
relieved — 15 years is a long time to get justice for Jennifer and
Elizabeth,” he said. “We’re just looking forward every day to that last
However, he and the other victim witnesses would not
speak to any of the Hispanic media present. Pena specifically said to
one reporter, “I don’t have anything to say to you, sir.”
Texas defies World Court with execution
By Ed Stoddard - Reuters News
Wed Aug 6, 2008
DALLAS (Reuters) - Texas defied the World Court and
executed a Mexican national by lethal injection on Tuesday over the
objections of the international judicial body and neighboring Mexico.
Jose Medellin, 33, was pronounced dead at 9:57 p.m.
CDT (0257 GMT) in the state's death chamber in Huntsville, the Texas
Department of Criminal Justice said. He had been condemned for the 1993
rape and murder of 16-year-old Elizabeth Pena in Houston and lost his
bid late Tuesday for a last-minute stay from the U.S. Supreme Court.
The World Court last month ordered the U.S.
government to "take all measures necessary" to halt the upcoming
executions of five Mexicans including Medellin's on the grounds that
they had been deprived of their right to consular services after their
Medellin's execution is sure to anger neighboring
Mexico and analysts have said it could make life rough for Americans
arrested abroad if other countries decide to evoke the U.S. example and
deprive them of their right to consular services. This typically means
diplomats will visit and provide legal advice to their nationals being
held by authorities.
The Texas Board of Pardons and Paroles had
recommended that the state's Republican governor Rick Perry not grant a
temporary reprieve, paving the way for Medellin's execution. Texas,
which executes far more convicts than any other U.S. state, had taken
the view that the brutal nature of Medellin's crimes rendered him unfit
for a reprieve or lesser sentence.
The World Court's jurisdiction also does not reach
Texas, a state where authorities generally don't like outsiders telling
them what to do. The political fall-out from the Medellin and related
cases has reached the White House and the U.S. Supreme Court.
U.S. President George W. Bush directed his native
Texas to comply with a World Court ruling in 2004 mandating review of
the cases of Medellin and other Mexicans in U.S. prisons awaiting
execution. The U.S. Supreme Court said in March Bush's action had
exceeded his authority.
The government of Mexico sent the U.S. State
Department a diplomatic note of protest, expressing "its concern for the
precedent" that the case "may create for the rights of Mexican nationals
who may be detained in that country."
The June 1993 crime for which Medellin was condemned
was chilling. According to the Texas Attorney General's office, Pena and
her 14-year-old companion, Jennifer Ertman, were walking home when they
encountered a gang initiation.
Medellin and his fellow gang members sexually
assaulted, beat and strangled the two girls. When their badly decomposed
bodies were finally recovered, they could only be identified by dental
records. Medellin was only convicted of Pena's murder.
Speaking to Reuters in the Mexican border town of
Nuevo Laredo, Medellin's aunt Reyna Armendariz, 45, said: "He was a
normal, happy kid ... They don't have the right to take his life away,
we acknowledged that he committed a crime but make him pay with a life
sentence," she said.
In his last statement Medellin said: "I am sorry my
actions caused pain." He had no last meal request, which is a ritual of
Medellin was the fifth inmate executed in Texas so
far this year and the 410th put to death since 1982, when the state
resumed executions six years after the U.S. Supreme Court reinstated
Texas currently has 14 more executions scheduled for
this year and one early in 2009. Seventeen executions have now been
carried out in the United States since the Supreme Court in April lifted
an unofficial moratorium on the death penalty when it rejected a
challenge to the three-drug cocktail used in most lethal injections.
Jennifer Ertman and Elizabeth Pena were 14 and 16
years old, respectively. They were friends who attended the same high
school in Houston, Texas, Waltrip High School. On June 24, 1993, the
girls spent the day together and then died together. They were last seen
by friends about 11:15 at night, when they left a friend's apartment to
head home, to beat summer curfew at 11:30.
They knew they would be late if they took the normal
path home, down W. 34th Street to T.C. Jester, both busy streets. They
also knew they would have to pass a sexually-oriented business on that
route and so decided to take a well-known shortcut down a railroad track
and through a city park to Elizabeth's neighborhood.
The next morning, the girls parents began to
frantically look for them, paging them on their pagers, calling their
friends to see if they knew where they were, to no avail. The families
filed missing persons reports with the Houston Police Department and
continued to look for the girls on their own. The Ertmans and Penas
gathered friends and neighbors to help them pass out a huge stack of
fliers with the girls' pictures all over the Houston area, even giving
them to newspaper vendors on the roadside.
Four days after the girls disappeared, a person
identifying himself as 'Gonzalez' called the Crimestoppers Tips number.
He told the call taker that the missing girls' bodies could be found
near T.C. Jester Park at White Oak bayou. The police were sent to the
scene and searched the park without finding anything. The police
helicopter was flying over the park and this apparently prompted Mr. 'Gonzalez'
to make a 911 call, directing the search to move to the other side of
the bayou. When the police followed this suggestion, they found the
badly decaying bodies of Jenny and Elizabeth.
Jennifer Ertman's dad, Randy Ertman, was about to
give an interview regarding the missing girls to a local television
reporter when the call came over a cameraman's police scanner that two
bodies had been found. Randy commandeered the news van and went to the
scene that was now bustling with police activity. Randy Ertman appeared
on the local news that evening, screaming at the police officers who
were struggling to hold him back, "Does she have blond hair? Does she
have blond hair?!!?" Fortunately, they did manage to keep Randy from
entering the woods and seeing his daughter's brutalized body and that of
her friend Elizabeth. The bodies were very badly decomposed, even for
four days in Houston's brutal summer heat and humidity, particularly in
the head, neck and genital areas.
The medical examiner later testified that this is how
she could be sure as to the horrible brutality of the rapes, beatings
and murders. The break in solving the case came from, of course, the 911
call. It was traced to the home of the brother of one of the men later
sentenced to death for these murders. When the police questioned 'Gonzalez',
he said that he had made the original call at his 16 year-old wife's
urging. She felt sorry for the families and wanted them to be able to
put their daughters' bodies to rest. 'Gonzalez' said that his brother
was one of the six people involved in killing the girls, and gave police
the names of all but one, the new recruit, whom he did not know.
His knowledge of the crimes came from the killers
themselves, most of whom came to his home after the murders, bragging
and swapping the jewelry they had stolen from the girls. While Jenny and
Elizabeth were living the last few hours of their lives, Peter Cantu,
Efrain Perez, Derrick Sean O'Brien, Joe Medellin and Joe's 14 year old
brother were initiating a new member, Raul Villareal, into their gang,
known as the Black and Whites. Raul was an acquaintance of Efrain and
was not known to the other gang members. They had spent the evening
drinking beer and then "jumping in" Raul. This means that the new member
was required to fight every member of the gang until he passed out and
then he would be accepted as a member.
Testimony showed that Raul lasted through three of
the members before briefly losing consciousness. The gang continued
drinking and 'shooting the breeze' for some time and then decided to
leave. Two brothers who had been with them but testified that they were
not in the gang left first and passed Jenny and Elizabeth, who were
unknowingly walking towards their deaths. When Peter Cantu saw Jenny and
Elizabeth, he thought it was a man and a woman and told the other gang
members that he wanted to jump him and beat him up. He was frustrated
that he had been the one who was unable to fight Raul. The gang members
ran and grabbed Elizabeth and pulled her down the incline, off of the
Testimony showed that Jenny had gotten free and could
have run away but returned to Elizabeth when she cried out for Jenny to
help her. For the next hour or so, these beautiful, innocent young girls
were subjected to the most brutal gang rapes that most of the
investigating officers had ever encountered. The confessions of the gang
members that were used at trial indicated that there was never less than
2 men on each of the girls at any one time and that the girls were
repeatedly raped orally, anally and vaginally for the entire hour.
One of the gang members later said during the brag
session that by the time he got to one of the girls, "she was loose and
sloppy." One of the boys boasted of having 'virgin blood' on him. The
14-year-old juvenile later testified that he had gone back and forth
between his brother and Peter Cantu since they were the only ones there
that he really knew and kept urging them to leave. He said he was told
repeatedly by Peter Cantu to "get some". He raped Jennifer and was later
sentenced to 40 years for aggravated sexual assault, which was the
maximum sentence for a juvenile.
When the rapes finally ended, the horror was not over.
The gang members took Jenny and Elizabeth from the clearing into a
wooded area, leaving the juvenile behind, saying he was "too little to
watch". Jenny was strangled with the belt of Sean O'Brien, with two
murderers pulling, one on each side, until the belt broke. Part of the
belt was left at the murder scene, the rest was found in O'Brien's home.
After the belt broke, the killers used her own shoelaces to finish their
job. Medellin later complained that "the bitch wouldn't die" and that it
would have been "easier with a gun". Elizabeth was also strangled with
her shoelaces, after crying and begging the gang members not to kill
them; bargaining, offering to give them her phone number so they could
get together again.
The medical examiner testified that Elizabeth's two
front teeth were knocked out of her brutalized mouth before she died and
that two of Jennifer's ribs were broken after she had died. Testimony
showed that the girls' bodies were kicked and their necks were stomped
on after the strangulations in order to "make sure that they were really
The juvenile, Venancio Medellin, pled guilty to his
charge and his sentence was reviewed when he turned 18, at which time he
was sent to serve the remainder of the sentence in prison. The five
killers were tried for capital murder in Harris County, Texas, convicted
and sentenced to death.
UPDATE: Before he was executed by lethal injection,
Medellin apologized to the families of the victims. He said he was sorry
that his actions had caused them pain and he hoped this would bring them
the closure they seek.
José Ernesto Medellín, (March 4, 1975 – August
5, 2008) born in Nuevo Laredo, Tamaulipas, was a Mexican national who
was executed for murder in Texas in the United States. Medellín was
convicted of raping and killing 16-year-old Elizabeth Pena and 14-year-old
Jennifer Ertman in June, 1993.
His case gained notoriety when Mexico sued the United
States in the International Court of Justice on behalf of 51 Mexican
nationals asserting that, in these cases, the US had violated the Vienna
Convention on Consular Relations, to which it is signatory, which
requires that local authorities inform foreign nationals being held on
criminal charges of their right to consult with their country’s
diplomats. That court ruled that the United States was obliged to have
the defendants’ cases reopened and reconsidered.
The Supreme Court of the United States agreed to hear
the case on May 1, 2007. The Bush administration briefed the Supreme
Court on the obligation to comply with international treaties. On March
25, 2008, the US Supreme Court rejected the Bush administration's
arguments and cleared the way for Texas to execute the sentence.
Rape and Murder
On June 24, 1993, Medellín performed a gang
initiation in a park along with five others, Peter Cantu, Roman
Sandoval, Efrain Perez, Raul Villareal and Sean O'Brien. Two others,
Frank Sandoval and Venancio Medellín, were present but did not
participate in the initiation. The initiation involved the new member,
Raul Villareal, submitting to beatings from the others. After this, the
gang members remained in the park, drinking beer.
At this time, 14-year-old Jennifer Ertman and 16-year-old
Elizabeth Pena were taking a shortcut through the park to get home
before curfew. They encountered the gang, and Medellín began talking to
Pena. She attempted to flee, but he forced her to the ground. Pena cried
for help and Ertman ran back to assist her. In response, Cantu and
O'Brien pushed her down as well. Roman and Frank Sandoval chose to leave
The remainder of the gang, as well as Venancio
Medellín, took turns vaginally and anally raping the two girls.
Afterwards, they were beaten, then the gang decided to murder the girls
so they would not be identified as the rapists. Medellín killed one of
the girls by using his shoelaces to strangle her, then crushing her neck
with his foot. Other gang members strangled the remaining girl with a
nylon belt, until the belt snapped.
Medellín, Villareal, Perez, and Cantu then
congregated at Cantu's home, where he lived along with his brother, Joe
Cantu, and sister-in-law, Christina Cantu. Christina Cantu questioned
why Villareal was bleeding and Perez had a bloody shirt. This prompted
Medellín to say the gang "had fun", and that details would appear on the
news. He then elaborated that he had raped both girls. Peter Cantu then
returned, and divvied up valuables that had been stolen from the girls.
Medellín got a ring with an 'E', so he could give it to his girlfriend,
Esther. Medellín reported that he had killed a girl, and noted that he
would have found it easier with a gun. Derrick Sean O'Brien was
videotaped smiling at the scene of the crime.
After the gang left, Christina Cantu convinced Joe
Cantu to report the crime to police. Four days after the crime, the
bodies were found in the park. They were badly decaying, and dental
records were used for identification. The medical examiner corroborated
that the cause of death was strangulation. All those believed
responsible were ultimately arrested. Medellín gave both a written and
In the International Court of Justice, Mexico sued
the United States on behalf of Mexican citizens who had been sentenced
to death without having their national consulate notified. The court
ruled that the United States acted in error and required that the
defendants’ cases be reopened.
Initially, the US government described Mexico’s suit
as “an unjustified, unwise and ultimately unacceptable intrusion in the
United States criminal justice system.” Reversing that position in early
2005, with Medellín’s death-penalty appeal pending before the Supreme
Court, the White House announced that it would abide by the decision by
instructing the states to reconsider the convictions and sentences of
the Mexican nationals on death row. The Supreme Court then dismissed
Medellín’s case to enable the Texas courts to comply with that directive.
The Texas Court of Criminal Appeals refused to change
their rules barring reconsideration of such cases. In that decision, one
of the court’s judges accused the White House of an “unprecedented,
unnecessary and intrusive exercise of power over the Texas court system”.
In response, the Bush administration entered the case on Medellín’s
behalf and urged the Supreme Court to overturn the Texas court’s
decision. The case, Medellín v. Texas, No. 06-984, was argued on October
10, 2007 and decided on March 25, 2008.
The US government’s brief, filed by Solicitor General
Paul D. Clement, told the justices that the Texas court’s decision, if
not reversed, “will place the United States in breach of its
international law obligation” to comply with the World Court’s decision
and would “frustrate the president’s judgment that foreign policy
interests are best served by giving effect to that decision.” Chief
Justice Roberts, joined by Justices Scalia, Kennedy, Thomas and Alito,
rejected the Bush administration's arguments. Justice Stevens wrote a
concurring opinion. Justice Breyer, joined by Justices Souter and
On July 16, 2008, the International Court of Justice
asked for a stay of execution on behalf of Medellin and four other
Mexican nationals who they believe did not receive a fair trial.
On July 17, 2008, Robert Black, spokesman for Texas
Governor Rick Perry, said the state would continue with the scheduled
August 5 execution despite the International Court of Justice order for
a stay. "The world court has no standing in Texas and Texas is not bound
by a ruling or edict from a foreign court. It is easy to get caught up
in discussions of international law and justice and treaties. It's very
important to remember that these individuals are on death row for
killing our citizens."
Medellín was executed at 9:57 PM Central, on August
5, 2008 after a three hour delay while the Supreme Court heard a late
appeal, which was denied.
Medellin v. Dretke, 371 F.3d 270 (5th Cir.
Background: Citizen of Mexico who was convicted in
Texas state court of capital murder and sentenced to death filed
petition for writ of habeas corpus. The United States District Court for
the Southern District of Texas, John D. Rainey, J., denied petition and,
sua sponte, denied petitioner Certificate of Appealability (COA).
Petitioner applied for COA from denial of petition.
Holdings: The Court of Appeals held that:
(1) COA would not issue as to petitioner's claims
that counsel was ineffective at punishment stage of trial for failing to
present evidence of petitioner's compliance with probation officer when
he was juvenile, or for declining to inform jury that petitioner would
have been eligible for parole in 35 years if he were sentenced to life
imprisonment rather than death;
(2) COA also would not issue as to claims that counsel was ineffective
on direct appeal for failing to seek enforcement of state trial court
order purporting to preclude state from seeking death penalty, or for
not raising Batson claims regarding state's overall use of peremptory
(3) claim of Vienna Convention violation was procedurally defaulted, and
in any event Convention, as interpreted by Court in past, did not confer
individually enforceable right; and
(4) with regard to alleged Brady violations, even if petitioner could
establish that government suppressed individual's misdemeanor arrest or
deal to drop charges against him in exchange his testimony and that of
his wife, that information was not material in light of overwhelming
evidence of petitioner's guilt. Application denied.
Petitioner Jose Ernesto Medellin, a citizen of Mexico,
was convicted of capital murder in Texas state court and sentenced to
death. Medellin filed a petition for a writ of habeas corpus in the
United States District Court for the Southern District of Texas pursuant
to 28 U.S.C. § 2254. The district court denied the petition. The
district court also, sua sponte, denied Petitioner a certificate of
appealability (“COA”). Petitioner now requests a COA from this Court
pursuant to 28 U.S.C. § 2253(c)(2). For the following reasons,
Petitioner's Application for a Certificate of Appealability from Denial
of a Petition for Writ of Habeas Corpus is denied.
On June 24, 1993, Petitioner, along with fellow gang
members, raped and killed two teenage girls whom the gang happened
across after a gang initiation. Petitioner raped both girls and helped
to murder at least one of the girls by holding one end of the shoelace
used to strangle her.
After Petitioner was convicted of this crime and his
sentence was imposed, the Texas Court of Criminal Appeals affirmed the
conviction and sentence on direct appeal. Petitioner did not seek
certiorari in the Supreme Court of the United States.
Petitioner subsequently filed a state application for
a writ of habeas corpus. Without holding an evidentiary hearing on
Petitioner's claims, the state trial-level habeas court recommended to
the Texas Court of Criminal Appeals that Petitioner's application be
denied. The Texas Court of Criminal Appeals agreed and denied
Petitioner filed a preliminary federal petition for a
writ of habeas corpus in November 2001. Petitioner amended his petition
in July 2002. As previously noted, the district court denied relief and
also denied Petitioner a COA. Petitioner filed a timely notice of
appeal. Petitioner now seeks a COA raising six claims, all of which were
properly raised in the district court.
Petitioner alleges four grounds for relief based upon
ineffective assistance of counsel. Petitioner alleges that his trial
counsel was ineffective at the sentencing stage of his trial for failing
to present evidence that Petitioner complied with his probation officer
while on probation as a juvenile. Relatedly, Petitioner alleges that his
trial counsel was ineffective at the sentencing phase of his trial for
declining to inform the jury that Petitioner would have been eligible
for parole after serving thirty-five years if he had been sentenced to
Petitioner also avers that his counsel on direct
appeal was ineffective for failing to seek the enforcement of the state
trial court's order purporting to preclude the state from seeking the
death penalty. Finally, Petitioner claims that his appellate counsel was
ineffective for not properly raising a Batson claim on direct appeal.
The remaining two grounds that Petitioner urges in
support of his petition are that the state violated his rights as a
foreign national to consular access under the Vienna Convention and that
the state failed to disclose exculpatory information to defense counsel.
II. STANDARD FOR GRANTING A COA
Medellin filed his Section 2254 petition for a writ
of habeas corpus after the effective date of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). The petition, therefore, is
subject to the procedures imposed by the AEDPA. See Lindh v. Murphy, 521
U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
Under the AEDPA, a petitioner must obtain a COA
before an appeal can be taken to this Court. See 28 U.S.C.A. §
2253(c)(2) (West 2003); see also Miller-El v. Cockrell, 537 U.S. 322,
336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“[U]ntil a COA has been
issued federal courts of appeals lack jurisdiction to rule on the merits
of appeals from habeas petitioners.”). “[W]hen a habeas applicant seeks
permission to initiate appellate review of the dismissal of his petition,
the court of appeals should limit its examination to a threshold inquiry
into the underlying merit of his claims.” Miller-El, 537 U.S. at 327,
123 S.Ct. 1029. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of the
claims. In fact, the statute forbids it.” Id. at 336, 123 S.Ct. 1029.
A COA will be granted if the petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C.A.
§ 2253(c)(2) (West 2003). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 327, 123 S.Ct. 1029. “The
question is the debatability of the underlying constitutional claim, not
the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. “Indeed, a
claim can be debatable even though every jurist of reason might agree,
after the COA has been granted and the case has received full
consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct.
1029. Finally, “[b]ecause the present case involves the death penalty,
any doubts as to whether a COA should issue must be resolved in [Petitioner's]
favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000).
We note that under the AEDPA, federal courts are to
give a level of deference to state court findings per §§ 2254(d)(2) and
(e)(1). At the COA stage, however, “we only ask whether the District
Court's application of AEDPA deference, as stated in §§ 2254(d)(2) and
(e)(1), to [a] claim was debatable amongst jurists of reason.”
Miller-El, 537 U.S. at 341, 123 S.Ct. 1029.
a. Ineffective assistance of counsel
To prevail on a claim of ineffective assistance of
counsel, Petitioner must show (1) that his counsel's performance was
deficient, and (2) that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 689-94, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). “To establish deficient performance, a petitioner must
demonstrate that counsel's representation ‘fell below an objective
standard of reasonableness.’ ” Wiggins v. Smith, 539 U.S. 510, 123 S.Ct.
2527, 2535, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688,
104 S.Ct. 2052). “[T]o establish prejudice, a ‘defendant must show that
there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” Id. at 2542 (quoting Strickland, 466 U.S.
at 692, 104 S.Ct. 2052).
With the Strickland framework in mind, we turn to
Petitioner's specific ineffective assistance claims.
1. Evidence that Petitioner complied with his
probation as a juvenile
The jury found that Petitioner posed a future danger,
one of the special findings required for imposition of a death sentence
in Texas. Petitioner argues that his trial counsel was ineffective at
the punishment stage of his trial for failing to investigate and present
evidence of Petitioner's compliance with his probation officer while he
was on probation as a juvenile. Petitioner necessarily alleges that this
purported failure prejudiced him at the sentencing phase of his trial
because the evidence would have shown that he did not pose a future
The district court noted that Petitioner presented
only hearsay evidence, in the form of an affidavit, that Petitioner's
probation officer would testify that Petitioner satisfied his juvenile
probation. Nonetheless, the district court addressed the merits of
Petitioners claim and agreed with the state habeas court that Petitioner
was not prejudiced even if his counsel was deficient. Because we find
the district court's holding in this respect not debatable, even upon a
threshold review, we may not issue a COA as to this claim.
Assuming that Petitioner's juvenile probation officer
would have testified that Petitioner was a model probationer,
Petitioner's own acts after he completed his juvenile probation belie a
conclusion that he would not pose a threat of future dangerousness when
in a supervised, structured environment. Putting aside the fact that
Petitioner fell back into gang activity after completing his juvenile
probation, ultimately leading to the horrific crime for which he was
sentenced to death, Petitioner clearly indicated his continuing
dangerousness while in prison awaiting trial.
On two separate occasions while Petitioner was in the
Harris County jail awaiting trial, Petitioner was found to have hidden
shanks in his cell. One cannot reasonably fathom how the fact that
Petitioner once complied with probation as a juvenile rebuts the
overwhelming evidence that Petitioner posed a future danger. Nothing
that his probation officer may have said could have conceivably caused
the jury to decide the question of Petitioner's future dangerousness in
Petitioner's favor. Accordingly, it is not debatable that Petitioner was
not prejudiced by his probation officer not testifying. Absent prejudice,
Petitioner's claim fails the second Strickland prong. A COA may not
issue as to this claim.
2. Evidence of Petitioner's eligibility for parole
if he were not sentenced to death
Petitioner argues that his trial counsel was
ineffective because counsel declined to inform the jury pool that, if
sentenced to life imprisonment rather than death, Petitioner would be
eligible for parole in thirty-five years. Though the trial court need
not instruct the jury regarding a defendant's eligibility for parole,
see Tigner v. Cockrell, 264 F.3d 521, 525 (5th Cir.2001), the judge
presiding over Petitioner's trial nonetheless indicated that she would
allow Petitioner to inform the jury that, if sentenced to life, he would
not be eligible for parole for thirty-five years.
In declining to inform the jury of Petitioner's
eligibility for parole if sentenced to life imprisonment, Petitioner's
trial counsel indicated that, based upon his past experience in death
penalty trials and his own polling of juries, jurors thought life
imprisonment meant no parole. He preferred to let the jury assume that
Petitioner would not be eligible for parole.
In an attempt to show that his trial counsel's
decision was objectively unreasonable, thereby meeting the first
Strickland prong, Petitioner points to studies showing that members of
the public underestimate the amount of time a convict will serve when
sentenced to life imprisonment. Petitioner claims that when presented
with the opportunity to inform the jury that Petitioner would not be
eligible for parole before he had served thirty-five years of a life
sentence, his trial counsel should have taken the opportunity.
“In a State in which parole is available, how the
jury's knowledge of parole availability will affect the decision whether
or not to impose the death penalty is speculative.” Simmons v. South
Carolina, 512 U.S. 154, 168, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).
“[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”
Strickland, 466 U.S. at 690, 104 S.Ct. 2052. “A decision regarding trial
tactics cannot be the basis for a claim of ineffective assistance of
counsel unless counsel's tactics are shown to be ‘so ill chosen that it
permeates the entire trial with obvious unfairness.’ ” Teague v. Scott,
60 F.3d 1167, 1172 (5th Cir.1995) (quoting Garland v. Maggio, 717 F.2d
199, 206 (5th Cir.1983)). E
ven if we were to review de novo the trial defense
counsel's reasons for not informing the jury of Petitioner's potential
eligibility for parole, we could not say the decision was objectively
unreasonable. No reasonable jurist would debate that trial counsel's
decision was so ill chosen that it permeated the entire trial, or even
just the sentencing phase, with obvious unfairness.
Indeed, pointing out to the jury that Petitioner
would be eligible for parole at age 53 could not conceivably have
changed their determination that Petitioner posed a future danger. See
Woods v. Johnson, 75 F.3d 1017, 1037 (5th Cir.1996); King v. Lynaugh,
850 F.2d 1055, 1060 (5th Cir.1988). Petitioner fails to meet either
Strickland prong. Accordingly, the district court's application of AEDPA
deference to the state habeas findings is not debatable. A COA may not
issue as to this claim.
3. Failure to raise on appeal the state trial
court's alleged order precluding the death penalty
Petitioner argues that his counsel on direct appeal
was ineffective because counsel did not seek to enforce on appeal an
order entered by the state trial court indicating that the state could
not seek the death penalty. Petitioner made a motion prior to his trial
to preclude the state from seeking the death penalty. In a pretrial
conference, the state trial court indicated that it would deny
Petitioner's motion. When the written order was issued, however, the
judge signed on the line indicating that Petitioner's motion was granted.
Of course, the trial continued and a death sentence was sought and
obtained. Nothing was made of the order until Petitioner's state habeas
At the state habeas proceedings, the state trial
judge, the same judge who tried the case, indicated that she
inadvertently signed the line granting Petitioner's motion to preclude
the state from seeking the death penalty. The fact that the issuance of
the written order was an inadvertence is self-evident. The trial judge,
in fact, allowed the state to seek the death penalty. Petitioner offers
nothing to contradict the pre-trial announcement by the district court
that it would deny the motion and judge's personal recollection that she
intended to deny his motion and that she inadvertently signed the wrong
Our Court decided a similar issue in Riley v.
Cockrell, 339 F.3d 308 (5th Cir.2003). At the state trial at issue in
Riley, another Texas death penalty case, the defendant moved to dismiss
the indictment against him. Despite verbally indicating that the court
would deny the claim, the judge checked the space on the written order
indicating that the motion was granted. The case went ahead to trial
where the defendant was convicted and sentenced to death. The issue was
raised during the state habeas proceedings before the same judge who had
tried the case. The judge indicated that the order was entered
inadvertently. The judge entered a nunc pro tunc order denying the
petitioner's claim. Our Court ultimately held that the issuance of the
nunc pro tunc order fixed any problem with the indictment and,
therefore, held that it was not debatable whether petitioner could be
granted relief on the claim. Riley, 339 F.3d at 313-15.
Even if Petitioner's counsel on direct appeal had
raised the issue, and if we assume the state appeals court would have
found it sufficient to warrant remand for entry of a nunc pro tunc
order, a proposition we strongly doubt, we have no doubt that
Petitioner's death sentence would not have been vacated based upon this
claim. At best (from Petitioner's point-of-view), raising the issue on
direct appeal would have led to the ultimate entry of a nunc pro tunc
order retroactively denying Petitioner's motion. He would be in exactly
the same position he is in now. Therefore, Petitioner was in no way
prejudiced by his counsel's failure to raise this issue on direct
appeal. No reasonable jurist would debate this point. We may not,
therefore, issue a COA as to this claim.
4. Failure to properly appeal the state's use of
peremptory jury strikes
“Since [Petitioner's] claim rests on a Batson [ v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)] violation,
resolution of his COA application requires a preliminary, though not
definitive, consideration of the three-step framework mandated by Batson
and reaffirmed in our later precedents.” Miller-El, 537 U.S. at 340, 123
S.Ct. 1029. “Under our Batson jurisprudence, once the opponent of a
peremptory challenge has made out a prima facie case of racial
discrimination (step one), the burden of production shifts to the
proponent of the strike to come forward with a race neutral explanation
(step two). If a race-neutral explanation is tendered, the trial court
must then decide (step three) whether the opponent of the strike has
proved purposeful racial discrimination.” Purkett v. Elem, 514 U.S. 765,
767, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995).
“In the context of the threshold examination in this
Batson claim the issuance of a COA can be supported by any evidence
demonstrating that, despite the neutral explanation of the prosecution,
the peremptory strikes in the final analysis were race based. It goes
without saying that this includes the facts and circumstances that were
adduced in support of the prima facie case.” Miller-El, 537 U.S. at 340,
123 S.Ct. 1029.
On direct appeal, Petitioner claimed that the state
violated Batson by striking two particular jurors. On federal habeas,
this claim has been broadened to allege that the state's use of its
peremptory strikes as a whole was discriminatory. As evidence that the
prosecution purposefully discriminated against minority jury pool
members, Petitioner notes that the state used six of its thirteen
peremptory strikes to excuse African-American pool members. As evidence
of the state's alleged discrimination based on sex, Petitioner notes
that the state used eight of its thirteen peremptory strikes to exclude
males from the jury. This is the only evidence Petitioner has ever
offered in support of this claim.
We agree with the district court that it is not
debatable that this is not sufficient to make even a prima facie case of
racial or gender discrimination as to Petitioner's claim that the
prosecution used its strikes in a discriminatory manner. Petitioner
argues that these numbers present statistical evidence of
discrimination. Petitioner, however, has not presented evidence of the
racial and gender make-up of the entire jury pool. For the statistical
evidence to be relevant, data concerning the entire jury pool is
necessary. The number of strikes used to excuse minority and male jury
pool members is irrelevant on its own. Indeed, depending on the make-up
of the jury pool, such numbers could indicate that the state
discriminated against Anglos and females. Moreover, the jury that was
seated was diverse both with respect to race and gender. For this reason
and those articulated by the district court, no reasonable jurist could
disagree with the district court's application of the AEDPA deference to
the state court's findings with respect to this part of Petitioner's
As to the individual strikes Petitioner alleges were
discriminatory, we hold that no reasonable jurist would disagree with
the district court that the state's proffered race-neutral reasons were
sufficient. “Unless a discriminatory intent is inherent in the
prosecutor's explanation, the reason offered will be deemed race
neutral.” Purkett, 514 U.S. at 768, 115 S.Ct. 1769 (quoting Hernandez v.
New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality
opinion)). Petitioner does not point to anything said by the prosecutor
in the prosecutor's justification of the challenged strikes that even
hints at an inherent discriminatory intent. We need not undertake an
in-depth analysis to determine that the district court's deference to
the state court findings was not remotely debatable.
Because the claim of discrimination in the
prosecution's use of its peremptory strikes overall is without merit,
the claim of ineffective assistance of counsel for not raising the issue
on appeal is, likewise, without merit. To the extent Petitioner adheres
to his pure Batson claim, that is, the claim raised on appeal and not
allegedly indicating ineffective assistance of counsel, that claim is
likewise meritless. Because no reasonable jurists could debate the
district court's resolution of this claim, we may not issue a COA as to
b. Vienna Convention violation
“The Vienna Convention is a 79-article, multilateral
treaty negotiated in 1963 and ratified by the United States in 1969.
Mexico is a signatory nation.” United States v. Jimenez-Nava, 243 F.3d
192, 195 (5th Cir.2001). Per Article 36, “the treaty requires an
arresting government to notify a foreign national of his right to
contact his consul.” Id. at 195 n. 2. The state concedes that Petitioner
was not notified of his right to contact the Mexican consul.
Petitioner's claim fails for two reasons: 1) it is
procedurally defaulted, and 2) even if it were not procedurally
defaulted, the Vienna Convention, as interpreted by this Court in the
past, does not confer an individually enforceable right.
1. Procedural default
The district court held that Petitioner's Vienna
Convention claim was procedurally defaulted. Petitioner all but concedes
that, under Texas law, he did procedurally default on his Vienna
Convention claim by not raising the issue at the trial stage. See Fisher
v. Texas, 169 F.3d 295, 300-01 (5th Cir.1999). Petitioner argues,
however, that the state's application of the procedural default rule in
this case violates the Vienna Convention. To support this conclusion,
Petitioner relies on the LaGrand Case (Germany v. United States of
America), 2001 ICJ 104 (Judgment of June 27) (“ LaGrand ”). In LaGrand,
the International Court of Justice held that procedural default rules
cannot bar review of a petitioner's claim. LaGrand at ¶¶ 90-91. We note
that the International Court of Justice adhered to this position again
in Avena and Other Mexican Nationals (Mexico v. United States of
America), a case brought by Mexico on behalf of Petitioner and others.
See 2004 ICJ 128 (Judgment of March 31) (“ Avena ”) at ¶¶ 110-13, 153.
The Supreme Court, prior to the Avena and LaGrand
decisions, however, ruled that Vienna Convention claims, like
Constitutional claims, can be procedurally defaulted, even in a death
penalty case. Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 140
L.Ed.2d 529 (1998). Though Avena and LaGrand were decided after Breard,
and contradict Breard, we may not disregard the Supreme Court's clear
holding that ordinary procedural default rules can bar Vienna Convention
claims. “If a precedent of [the Supreme Court] has direct application in
a case [...], the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/American Express, 490 U.S.
477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). That is, only the
Supreme Court may overrule a Supreme Court decision. The Supreme Court
has not overruled Breard. We are bound to follow the precedent until
taught otherwise by the Supreme Court.
2. No individually enforceable right under Article
36 of the Vienna Convention
Even if Petitioner were not procedurally barred from
making his Vienna Convention claim, the case law of our Court precludes
success on this claim. In making his Vienna Convention claim, Petitioner
necessarily also argues that Article 36 creates an individually
enforceable right. For this proposition, Petitioner again relies on
LaGrand. The International Court of Justice held in LaGrand that Article
36 did create personal rights. LaGrand at ¶ 77. Again, we note that the
International Court of Justice adhered to this position in Avena. See
Avena at ¶ 40.
A prior panel of this Court, however, held that
Article 36 of the Vienna Convention does not create an individually
enforceable right. Jimenez-Nava, 243 F.3d at 198 (“The sum of [petitioner's]
arguments fails to lead to an ineluctable conclusion that Article 36
creates judicially enforceable rights of consultation between a detained
foreign national and his consular office. Thus, the presumption against
such rights ought to be conclusive.”). Despite minor differences in this
case and that presented in Jimenez-Nava, the Court's holding in
Jimenez-Nava is inescapable. We are bound to apply this holding, the
subsequent decision in LaGrand notwithstanding, until either the Court
sitting en banc or the Supreme Court say otherwise. “[N]o panel is
empowered to hold that a prior decision applies only on the limited
facts set forth in that opinion.” United States v. Smith, 354 F.3d 390,
399 (5th Cir.2003). Accordingly, we deny a COA on this issue.
c. The state's alleged failure to disclose
exculpatory information to defense counsel
“ Brady, we reiterate, held that ‘the suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the
prosecution.’ ” Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256, 1272, 157
L.Ed.2d 1166 (2004) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963)). In Strickler v. Greene, the Supreme Court
framed “the three components or essential elements of a Brady
prosecutorial misconduct claim: ‘The evidence at issue must be favorable
to the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the State, either
willfully or inadvertently; and prejudice must have ensued.’ ” Banks,
124 S.Ct. at 1272 (quoting Strickler v. Greene, 527 U.S. 263, 281-82,
119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).
Petitioner's first Brady claim is that the government
suppressed information about a promise to dismiss a misdemeanor charge
against Joe Cantu in exchange for his testimony and the testimony of his
wife Christina Cantu against Petitioner. Their testimony helped to
establish the precise role Petitioner played in the rapes and murders.
The only concrete evidence presented by Medellin to
support this claim, however, is an affidavit from Christina Cantu,
stating that (1) an employee in the prosecutor's office helped Joe Cantu
obtain a lawyer, and (2) the charges against Joe Cantu were later
dropped by the state. These two facts, even if true, do not by
themselves show that any type of agreement existed. Rather, Petitioner's
claim rests upon a substantial degree of speculation. An applicant's
speculation about the suppression of exculpatory evidence is an
insufficient basis to support a Brady claim. Hughes v. Johnson, 191 F.3d
607, 630 (5th Cir.1999).
Petitioner next argues that the government failed to
disclose that Joe Cantu was arrested for a misdemeanor. Petitioner's
counsel, however, agreed during a pre-trial hearing that the government
need only release the felony arrest records of its witnesses. Because
Petitioner essentially waived his access to Joe Cantu's misdemeanor
arrest record, he may not now claim that such evidence was suppressed by
Even if Petitioner could establish that the
government suppressed Joe Cantu's misdemeanor arrest, or that the
government suppressed a deal to drop the charges against Joe Cantu,
Petitioner nonetheless fails to show that this information is material
in light of the overwhelming evidence establishing his guilt. The
district court correctly emphasized that “substantial and convincing
evidence” of Petitioner's role in the murders existed even without the
Cantus' testimony ( i.e., Medellin confessed to the rape and murder, he
was placed by another witness at the scene of the murder, and he gave
the victims' jewelry to his girlfriend).
Petitioner has not shown that reasonable jurists
could disagree with the district court's denial of any of his claims.
Accordingly, we deny Petitioner's Application for a Certificate of
Appealability from Denial of a Petition for Writ of Habeas Corpus.