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Jose Ernesto MEDELLIN ROJAS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Rape - Gang
Number of victims: 2
Date of murders: June 24, 1993
Date of birth: March 4, 1975
Victims profile: Elizabeth Pena (female, 16) and Jennifer Ertman (female, 14)
Method of murder: Strangulation
Location: Harris County, Texas, USA
Status: Executed by lethal injection in Texas on August 5, 2008
 
 

 
 
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Summary:

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.

Citations:

Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004) (Habeas).

Final/Special Meal:

None.

Final Words:

"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."

ClarkProsecutor.org


Texas Department of Criminal Justice

Executed Offenders (Jose Medellin)

Inmate: Jose Ernesto Medellin
Date of Birth: 03/04/75
DR#: 999134
Date Received: 01/06/95
Education: 9 years
Occupation: Laborer
Date of Offense: 06/24/93
County of Offense: Harris
Native County: Mexico
Race: Hispanic
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 05' 05"
Weight: 131 lb

Co-Defendants: Peter Cantu, Raul Villareal, Efrain Perez, Sean Derrick O'Brien


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 strangulation.

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.

PROCEDURAL HISTORY

  • 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 habeas corpus.

  • October 3, 2001 -- The Texas Court of Criminal Appeals denied writ.

  • November 28, 2001 -- Medellin filed a federal petition for writ of habeas corpus.

  • June 25, 2003 -- The federal district court dismissed Medellin’s federal habeas petition.

  • 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 appeal.

  • August 18, 2004 -- Medellin petitioned the U.S. Supreme Court for writ of certiorari.

  • May 23, 2005 -- The Supreme Court dismissed the writ as improvidently granted.

  • March 24, 2005 -- Medellin filed a second state application for writ of habeas corpus.

  • November 15, 2006 -- The Texas Court of Criminal Appeals dismissed Medellin’s application.

  • 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 certiorari.

  • March 25, 2008 -- The Supreme Court affirmed the Court of Criminal Appeals.

  • July 22, 2008 -- U.S. District court dismissed Medellin’s second federal habeas petition.

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 teens

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 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.

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 daughters.

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 arrested abroad.

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 be it."

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 Vienna Convention.

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 country’s reputation.”

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 murders.

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 execution.”

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 arrests.

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."

CHILLING CRIME

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 U.S. executions.

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 capital punishment.

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.


ProDeathPenalty.com

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 tracks.

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 dead."

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 then.

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 taped confession.

Case history

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 Ginsberg, dissented.

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."

Execution

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.

Wikipedia.org


Medellin v. Dretke, 371 F.3d 270 (5th Cir. 2004) (Habeas).

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 jury strikes;
(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.

PER CURIAM:

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.

I. BACKGROUND

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's application.

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 life imprisonment.

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.

III. ANALYSIS

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 danger.

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 proceedings.

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 line.

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 claim.

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 this issue.

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 the government.

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).

IV. CONCLUSION

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. DENIED.

 

 

 
 
 
 
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