     Case: 15-70025      Document: 00513465089        Page: 1     Date Filed: 04/14/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 15-70025                       United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           April 14, 2016
                                                                          Lyle W. Cayce
RUBEN RAMIREZ CARDENAS,                                                        Clerk

                                                Petitioner-Appellant,

versus

WILLIAM STEPHENS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                                Respondent-Appellee.




                  Appeals from the United States District Court
                       for the Southern District of Texas




Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Ruben Ramirez Cardenas 1 applies for a certificate of appealability



       1 The official caption on appeal calls the petitioner Ruben Ramirez Cardenas. His
application for a certificate of appealability states that “[a]lthough Petitioner has been
referred to in the past as Ruben Ramírez Cardenas, the appropriate iteration of his name is
Ruben Cardenas Ramírez.” We avoid the inconsistency by referring to petitioner as
“Cardenas.”
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                                     No. 15-70025
(“COA”) to appeal the denial of his second federal petition for writ of habeas
corpus. He claims that he is entitled to relief from his death sentence because
Texas law enforcement officers did not inform him of his rights under the
Vienna Convention on Consular Relations (“VCCR”) after his 1997 arrest.
Because no reasonable jurist could find that the claim is meritorious, we deny
a COA.

                                            I.
       The facts and procedural history are recounted in exhaustive detail in
several opinions describing Cardenas’s long journey through the state and fed-
eral courts. 2 In 1997, Cardenas broke into his fifteen-year-old cousin Mayra
Laguna’s bedroom, taped her mouth shut, tied her hands, and forced her into
a car. He drove her to a secluded area and raped her, then beat her to death
and left her body in a ditch. After police interrogation, Cardenas confessed.
The officers did not inform him of his rights as a Mexican national under the
VCCR.

      Cardenas was convicted of capital murder and sentenced to death. The
conviction and sentence were affirmed. Cardenas, 30 S.W.3d 384 at 393–94.
Cardenas’s initial state habeas petition was denied. See Cardenas v. Thaler,
651 F.3d at 447 (citing Ex parte Cardenas, No. 48,728–01 (Tex. Crim. App. May
16, 2001) (per curiam) (unpublished)).

      Cardenas filed a federal habeas petition contending that trial counsel’s
failure to raise the VCCR issue rendered his performance constitutionally
inadequate. The petition was denied, and the district court denied a COA.
While Cardenas’s appeal from that denial was pending, the International


      2 See Cardenas v. State, 30 S.W.3d 384, 386–89 (Tex. Crim. App. 2000) (reciting facts
of underlying conviction on direct appeal); Cardenas v. Thaler, 651 F.3d 442, 447 (5th Cir.
2011) (Garza, J., dissenting) (reciting state and federal procedural history through 2011).
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Court of Justice (“ICJ”) issued judgment in Avena & Other Mexican Nationals
(Mex. v. U.S.), 2004 I.C.J. 128 (Mar. 31) (“Avena”), which, as our court has
described it, addressed
   a proceeding initiated by the Government of Mexico against the United
   States alleging that the United States had violated the consular notifi-
   cation provisions of the Vienna Convention in the case of Cardenas and
   53 other Mexican nationals facing the death penalty. The ICJ con-
   cluded in Avena that the United States had breached its obligations
   under Article 36, paragraph 1(b), of the Vienna Convention by failing
   to inform Cardenas of his rights under this paragraph and by failing to
   notify the Mexican consular post of Cardenas’ detention. Avena, paras.
   106(1), (2). The ICJ concluded that “the United States also violated the
   obligation incumbent upon it under Article 36, paragraph 1(a), of the
   Vienna Convention to enable Mexican consular officers to communicate
   with and have access to their nationals, as well as its obligation under
   paragraph 1(c) of that Article regarding the right of consular officers to
   visit their detained nationals.” Id. at para. 106(3). However, the ICJ
   determined that in Cardenas’ case, the United States did not breach its
   obligation under paragraph 1(c) to enable Mexican consular officers to
   arrange for legal representation of Cardenas. Id. at para. 106(4).
          The ICJ thus held that the Mexican nationals whose rights under
   Article 36 of the Vienna Convention were violated were entitled to full
   judicial review of their capital murder convictions and death sen-
   tences. Id. at para. 138. The ICJ mandated that the “review and recon-
   sideration” of the case be “effective” and “‘take account of the violation
   of the rights set forth in [the Vienna] Convention’ and guarantee that
   the violation and the possible prejudice caused by that violation be
   fully examined.” Id. (emphasis added). The ICJ, however, “left to the
   United States the choice of means as to how review and reconsideration
   should be achieved, especially in light of the procedural default rules
   . . . . [R]econsideration should occur within the overall judicial pro-
   ceedings relating to the individual defendant concerned.”
   Id. at para. 141.
Cardenas v. Dretke, 405 F.3d 244, 252 (5th Cir. 2005) (footnote omitted) (alter-
ation in original).

      This court determined that, Avena notwithstanding, the VCCR claim
was both procedurally defaulted and meritless. Id. at 252–54. On the merits,

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we first held that the VCCR creates no judicially enforceable individual rights.
Id. at 252–53. And second, we held that, even if Cardenas’s rights were vio-
lated in some judicially redressable fashion, he was not prejudiced. Id. at 253–
54. We further concluded that reasonable jurists could not debate those deter-
minations, so we declined to issue a COA. Id. at 254.

      In the wake of Avena (but after briefing in the aforementioned appeal),
the President issued a memorandum (the “Presidential Memorandum”) pur-
porting to direct state courts to comply fully with Avena’s requirement that the
covered individuals receive full reconsideration of their cases without regard
to ordinary state-law procedural bars. Cardenas filed a new state habeas peti-
tion, seeking relief on the basis of Avena and the Presidential Memorandum.
That petition was dismissed as an abuse of the writ. Ex parte Cardenas,
No. WR-17,425-05, 2007 WL 678628, at *1 (Tex. Crim. App. Mar. 7, 2007).

      Cardenas then filed the federal habeas petition now at issue. This court
stayed that proceeding pending the Supreme Court’s decision in Medellin v.
Texas. That Court held that, even though the VCCR and Avena had created
binding international-law obligations on the federal government, neither they
nor the Presidential Memorandum created any binding domestic obligation on
the states. See Medellin v. Texas, 552 U.S. 491, 522–23, 532 (2008). After
Medellin, the Secretary of State and the Attorney General wrote the Texas
governor asking for his help in implementing American treaty obligations
under the VCCR and Avena. The governor replied that Texas would ask fed-
eral habeas courts to review prejudice claims on the merits for any person who
had not yet received a prejudice determination on his VCCR claim.

      In September 2008, the district court dismissed Cardenas’s petition for
want of jurisdiction because he had not received permission to file a successive
petition; the district court never ruled on whether a COA should issue.

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Between the dismissal and Cardenas’s appeal of that order, this court issued
Leal Garcia v. Quarterman, 573 F.3d 214 (5th Cir. 2009). There we held that
a second habeas petition raising Avena and VCCR claims in conjunction with
the Presidential Memorandum was not successive within the meaning of the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) if the
initial petition was denied before the Presidential Memorandum was issued.
Id. at 223–24. In Leal Garcia we also concluded that Medellin rendered Leal
Garcia’s VCCR claim meritless because neither the VCCR nor Avena imposed
binding obligations on the states. Id. at 224.

      On Cardenas’s appeal, we remanded on the narrow question whether a
COA should issue, without addressing the impact of Leal Garcia. Cardenas,
651 F.3d at 447. On remand, Cardenas moved for relief from the judgment of
dismissal under Federal Rule of Civil Procedure 60(b). He noted that Leal
Garcia had clarified that his second habeas petition was not successive within
the meaning of AEDPA, so the judgment of dismissal on that basis was error.
The district court granted the motion and allowed Cardenas to file an amended
habeas petition.

      That amended petition maintained that Cardenas’s rights under the
VCCR had been violated, that he suffered prejudice, and that the combination
of the VCCR, Avena, the Presidential Memorandum, the governor’s letter, an
opinion of another circuit, and decisions of various foreign courts entitled him
to relief from his sentence. The district court denied the petition. It held that
Cardenas’s VCCR claim was procedurally defaulted, opining that the Texas
Court of Criminal Appeals’ denial of the second state habeas motion rested on
an independent and adequate state bar to relief. The court further decided, in
the alternative, that the VCCR claim was meritless. The court reasoned that
Medellin and Leal Garcia had foreclosed any relief because they reaffirmed the

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                                      No. 15-70025
Fifth Circuit’s longstanding view that neither Avena nor the VCCR produced
any individually enforceable rights. The court also determined that reasonable
jurists would not debate its denial of habeas relief, and it thus refused to issue
a COA.

                                             II.
       Under AEDPA, a COA is a prerequisite to appeal the denial of a habeas
petition. 28 U.S.C. § 2253(c)(1)(A). The petitioner must make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and
must show that the accuracy of the district court’s conclusions is subject to
debate among jurists of reason, see Miller-El v. Cockrell, 537 U.S. 322, 330
(2003). In the death-penalty context, any doubts as to entitlement to a COA
are resolved in the petitioner’s favor. Medellin v. Dretke, 371 F.3d 270, 275
(5th Cir. 2004) (per curiam).

       The district court made two alternative holdings: first that Cardenas’s
claim was procedurally defaulted, and second that, even if it was not, the claim
was meritless. Thus, Cardenas must show both that jurists of reason could
debate the validity of the procedural default ruling and that those same jurists
could debate the validity of the merits ruling. See Slack v. McDaniel, 529 U.S.
473, 484 (2000). Because Cardenas’s claim easily fails on the merits, we need
not address the procedural-default ruling.             We therefore assume, without
deciding, that the Texas Court of Criminal Appeals’ dismissal was based on
the merits of Cardenas’s claim. 3

       Because Cardenas advanced a legal claim rather than a factual claim,


       3Because we assume for the sake of argument that the merits are properly before this
court, we need not decide what force—if any—to accord the governor’s letter promising not
to oppose merits review. Even if Cardenas is correct that the letter binds the state (which
we doubt), the letter, at most, would be a waiver of the state’s procedural-default arguments
that would force the state to defend the merits.
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                                 No. 15-70025
our review of this habeas petition is governed by 28 U.S.C. § 2254(d)(1), which
states that we may grant relief only if the Texas judgment “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States . . . .” The Supreme
Court, just this Term, reminded that it
   time and again[ ] has instructed that AEDPA, by setting forth necessary
   predicates before state-court judgments may be set aside, “erects a
   formidable barrier to federal habeas relief for prisoners whose claims
   have been adjudicated in state court.” Burt v. Titlow, 571 U. S. ___, ___,
   134 S. Ct. 10, 16 . . . (2013). Under § 2254(d)(1), “‘a state prisoner must
   show that the state court’s ruling on the claim being presented in fed-
   eral court was so lacking in justification that there was an error well
   understood and comprehended in existing law beyond any possibility
   for fairminded disagreement.’” White v. Woodall, 572 U. S. ___, ___, 134
   S. Ct. 1697, 1702 . . . (quoting Harrington v. Richter, 562 U. S. 86, 103
   . . . (2011)).
White v. Wheeler, 136 S. Ct. 456, 460 (2015) (per curiam).

      Federal habeas review under AEDPA is therefore highly deferential:
The question is not whether we, in our independent judgment, believe that the
state court reached the wrong result. Rather, we ask only whether the state
court’s judgment was so obviously incorrect as to be an objectively unreasona-
ble resolution of the claim. See Renico v. Lett, 559 U.S. 766, 773 (2010). Fur-
ther, only the authoritative pronouncements of the Supreme Court qualify as
clearly established law; our own cases and those of our sister circuits cannot
serve as the basis for habeas relief if not squarely backed by that higher
authority. See id. at 779.

                                      III.
      The district court correctly concluded that Cardenas’s VCCR claim was
meritless.   Cardenas theorizes that the failure of Texas law enforcement
authorities to comply with the VCCR prejudiced his defense and that therefore

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                                       No. 15-70025
he is entitled to relief for that violation of his rights under the treaty. He
bolsters that notion by reference to a wide variety of international law sources,
the Presidential Memorandum, a decision from one of our sister circuits, and
the views of foreign courts. But, tellingly, he cites no Supreme Court precedent
for the proposition that Avena, the VCCR, or various decisions by international
and foreign tribunals give rise to judicially enforceable individual rights cog-
nizable on federal habeas review under AEDPA. That is because there is no
such authority, and its absence is fatal, because on federal habeas review we
may disturb a state conviction only if Supreme Court precedent so dictates.

       Recognizing that principle, this court has rejected claims materially
indistinguishable from Cardenas’s. Medellin and several of our decisions fore-
close any relief on the basis of the theories that Cardenas advances.

       Medellin rejects most of the arguments in Cardenas’s petition, holding
that Avena had no force as domestic law. The petitioner claimed that the
Optional Protocol Concerning the Compulsory Settlement of Disputes to the
Vienna Convention (“Optional Protocol”), 4 the United Nations Charter, and the
International Court of Justice Statute together served to render Avena directly
enforceable as domestic federal law.               The Court rejected that contention
because those treaties were not self-executing 5 and Congress had not passed
implementing legislation incorporating them into domestic law.                      Medellin,



       4The Optional Protocol is a related treaty that “provides a venue for the resolution of
disputes arising out of the interpretation or application of the Vienna Convention.” Medellin,
552 U.S. at 499. It vests compulsory jurisdiction for such disputes in the ICJ. Id.
       5  American courts have “long recognized the distinction between treaties that auto-
matically have effect as domestic law, and those that—while they constitute international
law commitments—do not by themselves function as binding federal law.” Medellin, 552 U.S.
at 505. A treaty that explicitly conveys an intention that it should “self-execute” upon ratifi-
cation without additional implementing legislation takes force as domestic law at the time of
ratification. Id. A treaty that does not evince such executory intentions is non-self-executing,
and does not take force absent an implementing statute. Id.
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552 U.S. at 506. Nor did the President have the power to transform those non-
self-executing treaties into binding domestic law by issuing the Presidential
Memorandum: The Constitution vests Congress, not the President, with the
legislative powers necessary to convert a non-executory international obliga-
tion into domestic law. Id. at 527. Thus, neither Avena nor the Presidential
Memorandum is enforceable federal law that binds the states to behave in
accordance with their dictates or allow courts to enforce rights thereunder.

       As Cardenas correctly notes, the Supreme Court expressly reserved the
question whether the VCCR is self-executing or gives rise to any judicially
cognizable individual rights. Id. at 506 n.4. But he is wrong to think that this
helps his argument: The fact that the Court has not found an individually
enforceable right means that, under § 2254(d)(1), we cannot grant relief,
because such a right is not part of clearly established federal law as determined
by the Supreme Court. Further, this court has repeatedly held that the VCCR
does not give rise to individual rights. 6 The VCCR itself is thus of no more help
to Cardenas than is Avena or the Presidential Memorandum. None of these
purported sources of law can serve as the basis for habeas relief. Indeed, this
court has already said as much in a near-identical appeal. See Leal Garcia,
573 F.3d at 218–19. 7


       6 See Rocha v. Thaler, 619 F.3d 387, 407 (5th Cir.), clarified on denial of reconsider-
ation, 626 F.3d 815 (5th Cir. 2010); Leal Garcia, 573 F.3d at 218 n.19; Cardenas v. Dretke,
405 F.3d 244, 253 (5th Cir. 2005); Medellin, 371 F.3d at 280; United States v. Jimenez-Nava,
243 F.3d 192, 198 (5th Cir. 2001).
       7 Cardenas does not even mention Leal Garcia in his opening brief, and his attempts
to distinguish it in his reply brief are unpersuasive. The only point of distinction that he
raises is the fact that he is relying on the power of a federal court to remedy violations of a
treaty through habeas review under 28 U.S.C. § 2254(a). But that does not help him. That
provision does not grant federal courts free-ranging authority to remedy treaty violations
without regard to the rest of the AEDPA framework any more than it gives them unbounded
authority to police constitutional violations. Section 2254(d)(1) still governs. We may grant
relief only on the basis of the decisions of the Supreme Court, which has not announced an
individual right under the VCCR. Thus, we may not recognize an individual right under the
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                                       No. 15-70025
       Cardenas’s reliance on various other judgments of international
tribunals—including subsequent ICJ declarations and a report issued by the
Inter-American Commission on Human Rights (“IACHR”)—is similarly un-
availing. The more recent ICJ decisions not directly addressed in Medellin
provide no basis for relief for precisely the same reason that the ICJ decision
at issue in Medellin did not do so: ICJ decisions do not become domestic law
absent a Congressional enactment.

       Nor does the IACHR decision give rise to a cognizable claim for relief.
Although this circuit has not squarely addressed the question, every federal
court of appeals that has done so has concluded that IACHR decisions do not
have domestic legal force. 8 Cardenas cites no authority to the contrary and
does not even advance a reasoned argument for the proposition that IACHR
determinations should be accorded any status in the U.S. legal system. And
even if we were inclined to think that IACHR decisions should be accorded
domestic legal force, we could not announce that novel rule in a habeas case.
See Tamayo, 740 F.3d at 996–98. Cardenas’s reliance on decisions from our
sister circuits and foreign courts is also misplaced for the obvious reason that
none of those is a decision of the Supreme Court, so arguments predicated on
them cannot satisfy § 2254(d)(1). See Salazar v. Dretke, 419 F.3d 384, 399 (5th
Cir. 2005).

       Cardenas’s brief concludes by asking that, even if circuit precedent
rejects his core claim, we grant a COA to reconsider Jimenez-Nava. Cardenas
posits that the (purportedly) unique constellation of factors present here


VCCR on habeas review (and have so held). See Maldonado v. Thaler, 389 F. App’x 399, 404
(5th Cir. 2010); Flores v. Johnson, 210 F.3d 456, 458 (5th Cir. 2000).
       8See Tamayo v. Stephens, 740 F.3d 991, 997 (5th Cir. 2014) (per curiam) (citing Flores–
Nova v. Attorney Gen. of U.S., 652 F.3d 488, 493 (3d Cir. 2011); In re Hicks, 375 F.3d 1237,
1241 n.2 (11th Cir. 2004); Garza v. Lappin, 253 F.3d 918, 924–25 (7th Cir. 2001)).
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warrants reconsideration. But, in the absence of intervening Supreme Court
authority, we will not issue a COA in anticipation of en banc rehearing of a
past decision. See Rocha, 619 F.3d at 407–08. There is no intervening author-
ity. And, contrary to Cardenas’s supposition, the procedural footing of this case
(federal habeas) does not favorably distinguish it from Jimenez-Nava. As we
have repeated herein, a habeas court is prohibited from granting relief on the
basis of heretofore unannounced rules of law.

      The application for a COA is DENIED.




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