           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                            June 2, 2008

                                       No. 07-50336                   Charles R. Fulbruge III
                                                                              Clerk

In Re: CESAR ROBERTO FIERRO

                                                  Movant



                          Motion for an order authorizing
                  the United States District Court for the Western
                           District of Texas to consider
                     a successive 28 U.S.C. § 2254 application


Before KING, JOLLY, and WIENER, Circuit Judges..
PER CURIAM:*
       Fierro was convicted of capital murder and sentenced to death in Texas.
This court affirmed the denial of his first petition for federal habeas relief in
1989. Fierro v. Lynaugh, 879 F.2d 1276 (5th Cir. 1989). In 1997, this court
authorized Fierro to file a successive federal habeas application in which he
claimed that his confession was coerced. Relief was ultimately denied on that
claim. Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002), cert. denied, 538 U.S. 947
(2003).
       On March 15, 2007, after the Texas Court of Criminal Appeals dismissed
Fierro’s subsequent state habeas application on the ground that it was



       *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 07-50336

procedurally barred, Fierro moved for authorization to file another successive
federal habeas petition. In that motion, Fierro sought authorization from this
court to file a federal habeas petition asserting a claim that he has a federally
enforceable right to review and reconsideration of his conviction and sentence
in the Texas courts in the light of the violation of his rights to consular
notification and consultation under the Vienna Convention. Fierro argued that
his claim relies on a new rule of law which was created by the decision of the
International Court of Justice in the Case Concerning Avena and Other Mexican
Nationals (Mex v. U.S.), 2004 I.C.J. 12, and President Bush’s determination that
state courts should review and reconsider the merits of the Vienna Convention
claims of the Mexican citizens involved in Avena, notwithstanding any state
procedural rules that might otherwise bar review of the merits of those claims.
Fierro asserted that this rule was previously unavailable, and that retroactivity
concerns are not raised by the rule, which applies only in state courts.
      On March 22, 2007, we granted Fierro’s unopposed motion to stay
consideration of his request for authorization to file a successive habeas petition
pending the disposition of his petition for a writ of certiorari, in which he sought
review of the Texas Court of Criminal Appeals’ dismissal of his successive state
habeas application.
      On March 25, 2008, the Supreme Court of the United States held that
Avena was not directly enforceable domestic federal law that preempted state
limitations on the filing of successive habeas petitions, and that President Bush’s
determination did not independently require states to provide reconsideration
and review of the claims of the Mexican citizens involved in Avena without
regard to state procedural default rules. Medellin v. Texas, 128 S.Ct. 1346
(2008). On March 31, 2008, the Supreme Court denied Fierro’s petition for a
writ of certiorari. Fierro v. Texas, 2008 WL 833289 (U.S. Mar. 31, 2008).



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                                  No. 07-50336

      We directed the parties to file letter briefs addressing the effect of
Medellin. Both parties agree that Medellin decided adversely to Fierro the
issues that he seeks permission to raise in a successive federal habeas petition.
      Fierro asserts that, notwithstanding the adverse decision in Medellin,
there is substantial reason to continue to stay consideration of his request for
authorization to file a successive habeas petition, because Medellin’s counsel has
informed Fierro’s counsel that “work is underway to introduce a bill in Congress
that would make the Avena judgment enforceable in the domestic courts.” We
do not agree that there is any further basis for continuing the stay. We stayed
consideration of Fierro’s motion for leave to file a successive habeas petition
pending disposition of his petition for a writ of certiorari, which the Supreme
Court denied on March 31, 2008. The stay has expired by its own terms and
Fierro’s motion for authorization to file a successive habeas petition is now ripe
for decision. As a result of the Supreme Court’s ruling in Medellin, Fierro has
not made a prima facie showing that his claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme
Court, as required by 28 U.S.C. § 2244(b)(2)(A).
            IT IS THEREFORE ORDERED that Fierro’s motion for
authorization to file a successive habeas petition is
                                                                       DENIED.




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