                           REVISED JULY 24, 2009

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

                                                                   FILED
                                 No. 08-70003                     June 24, 2009

                                                             Charles R. Fulbruge III
HUMBERTO LEAL GARCIA                                                 Clerk

                                             Petitioner - Appellant
v.

NATHANIEL QUARTERMAN; DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                             Respondent - Appellee



                Appeal from the United States District Court
                     for the Western District of Texas


Before WIENER, GARZA and BENAVIDES, Circuit Judges.
WIENER, Circuit Judge:
      The opinion in this case filed on June 15, 2009, is withdrawn and the
following opinion is substituted therefor.
      Petitioner Humberto Leal Garcia (“Leal”) appeals from the district court’s
finding that it was without jurisdiction to consider his second petition for
habeas corpus relief because Leal failed to first seek authorization from this
court pursuant to 28 U.S.C. § 2244. Leal contends that because his petition is
not successive within the meaning of the Anti-Terrorism and Effective Death
Penalty Act (“AEDPA”), he was not required to obtain authorization and the
                                         No. 08-70003

district court had jurisdiction to hear his petition.                   We agree, but we
nevertheless affirm the dismissal on the basis of the intervening Supreme Court
decision in Medellín v. Texas.1
                            I. FACTS AND PROCEEDINGS
       Leal was convicted of murder in a Texas court in 1995 for killing a 16-year-
old girl during the course of an aggravated sexual assault.                      On a jury’s
recommendation, Leal was sentenced to death. We assume the parties are well
familiar with the facts of the case so we will not repeat them here;2 it goes
without saying that the details of the crime are graphic and brutal.
A. Procedural History
       This is Leal’s second attempt at federal habeas relief.3 AEDPA requires
that a petitioner filing a “second or successive” petition first obtain authorization
to do so from the appropriate federal appellate court. Leal did not do so,
claiming that his petition was not successive. The district court disagreed,
holding that it was successive and that, because Leal failed to obtain
authorization pursuant to 28 U.S.C. § 2244(b)(3)(A), the court was without
jurisdiction to hear the petition. The district court dismissed Leal’s petition
without prejudice. He now appeals the holding of no jurisdiction.4


       1
           ___ U.S. ___, 128 S. Ct. 1346 (2008).
       2
        The details are laid out in, among other places, the district court’s Memorandum
Opinion and Order denying Leal’s prior petition. Leal v. Dretke, No. SA-99-CA-1301, 2004 WL
2603736 (W.D. Tex. Oct. 20, 2004).
       3
        His first attempt, attacking his conviction and sentence on a number of bases, was
denied in 2004. Id., certif. of appealability denied, 428 F.3d 543 (5th Cir. 2005), cert. denied,
547 U.S. 1073 (2006).
       4
          Leal also appeals the second part of the district court’s decision, in which it
hypothesized that it had jurisdiction and reached the merits of his claim after determining that
it was without jurisdiction. The State concedes the district court erred in so doing. The
Supreme Court has rejected the use of “hypothetical jurisdiction,” and we reject its use here.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S. Ct. 1003 (1998) (“We decline
to endorse [hypothetical jurisdiction] because it carries the courts beyond the bounds of

                                                   2
                                            No. 08-70003

          To assist in better understanding of this opinion, we set forth the timeline
of Leal’s proceedings to date and critical events paralleling his petitions for
relief:
          March 2000 – Leal files his first federal habeas petition in the District
          Court for the Western District of Texas.
          March 2004 – The International Court of Justice (the “ICJ”) issues the
          Avena decision.5
          October 2004 – The Western District of Texas denies habeas relief to Leal.6
          December 2004 – Leal seeks a Certificate of Appealability (“COA”) in this
          court to appeal denial of his first federal habeas petition.
          February 2005 – President Bush signs a declaration ordering state
          compliance with the mandate of the Avena decision.
          March 2005 – Leal requests that this court stay further proceedings while
          he returns to state court to litigate his Avena-related claim, which motion
          we denied without further discussion.
          October 2005 – This court denies Leal’s request for a COA.7
          November 2006 – Texas Court of Criminal Appeals holds that the Avena
          decision and the Bush declaration are not binding on the state of Texas.8
          March 7, 2007 – Texas Court of Criminal Appeals denies Leal’s pending
          Avena-related state petition.9
          March 14, 2007 – Leal files this, his second, federal habeas petition.




authorized judicial action and thus offends fundamental principles of separation of powers.”);
United States v. Tex. Tech Univ., 171 F.3d 279, 286-87 (5th Cir. 1999) (“To rule on a merits
question before, or in addition to, answering the omnipresent jurisdictional question would
contravene the well-established principle that the federal courts may not issue advisory
opinions.”). “Without jurisdiction the court cannot proceed at all in any cause.” Ex parte
McCardle, 73 U.S. 506, 514 (1868).
          5
         Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004
I.C.J. 12 (Judgment of Mar. 31, 2004).
          6
              Leal v. Dretke, 2004 WL 2603736.
          7
              Leal v. Dretke, 428 F.3d 543 (5th Cir. 2005).
          8
              Ex parte Medellín, 223 S.W.3d 315, 332, 344 (Tex. Crim. App. 2006).
          9
         Ex parte Cardenas, No. WR-41743-02, 2007 WL 678628, at *1 (Tex. Crim. App. Mar.
7, 2007) (citing Ex parte Medellín, 223 S.W.3d 315).

                                                   3
                                          No. 08-70003

        December 2007 – The District Court for the Western District of Texas
        dismisses Leal’s petition for lack of jurisdiction.10
        January 2008 – Leal files timely notice of appeal.
        March 2008 – Supreme Court decides Medellín v. Texas, affirming the
        Texas Court of Criminal Appeals.11

                                         II. ANALYSIS
A. Standard of Review
        In a petition for habeas corpus, we review de novo the district court’s
determination that it was without jurisdiction to consider the petitioner’s
claim.12
B. The Vienna Convention and the Avena Decision
        Before delving into the specifics of this case, we must outline the singular
international and domestic legal background from which Leal’s petition arises.
The Vienna Convention, to which the United States has been a signatory since
1969, requires member nations to permit detained foreign nationals access to
their consular officers.13 The United States also signed the Optional Protocol
Concerning the Compulsory Settlement of Disputes to the Vienna Convention,
which established the ICJ and made its decisions binding on the parties before
it.14




        10
             Leal v. Quarterman, No. SA-07-CA-214, 2007 WL 4521519 (W.D. Tex. Dec. 17, 2007).
        11
             Medellín v. Texas, ___ U.S. ___, 128 S. Ct. 1346 (2008).
        12
             Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000).
        13
        Vienna Convention on Consular Relations (“Vienna Convention”), Art. 36, Apr. 24,
1963 [1969], 21 U.S.T. 77.
        14
         Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna
Convention (the “Optional Protocol”), Apr. 24, 1963 [1970] 21 U.S.T. 325. The United States
has since given notice of its withdrawal from the Optional Protocol in which it agreed to be
bound by ICJ decisions. Letter from Condoleeza Rice, Secretary of State, to Kofi A. Annan,
Secretary-General of the United Nations (Mar. 7, 2005).

                                                 4
                                        No. 08-70003

       Alleging that the United States had violated the right to consular access
established in Article 36 of the Vienna Convention, Mexico took a dispute to the
ICJ for review.15 The case (the “Avena decision”) concerned 51 named Mexican
citizens convicted of capital crimes and imprisoned in the United States; Leal
was one of the 51 named individuals.16 In 2004, the ICJ held that the United
States had violated the Vienna Convention’s guarantee of consular access and
must review the convictions and sentences of those individuals whose rights
were so violated.17 In its decision, the ICJ stated that procedural barriers —
such as state law procedural default rules — to reviewing the cases of the 51
individuals should be suspended to permit review.18 To obtain state compliance
with the ICJ’s edict, President George W. Bush then issued a memorandum (the
“Bush declaration”) in February 2005, ordering states to review the cases
identified in the Avena decision.19



       15
          Case Concerning Avena and Other Mexican Nationals (Mexico v. United States), 2004
I.C.J. 12 (Judgment of Mar. 31, 2004).
       16
            Id. ¶ 16.
       17
            Id. ¶¶ 90, 106.
       18
            Id. ¶ 112.
       19
          The Vienna Convention binds the United States as a matter of international law, but
does not bind the individual states of the Union unless and until Congress passes enabling
legislation enacting its provisions. Sanchez-Llamas v. Oregon, 548 U.S. 331, 346-47, 126 S.
Ct. 2669 (2006). Violations of the Vienna Convention’s right to consular access is enforceable
by one member-nation against another, which is why Mexico took the Avena suit to the ICJ.
The Supreme Court has never answered whether the Convention creates rights enforceable
by individual residents of the signatory nations. See, e.g., Medellín v. Texas, ___ U.S. ___, 128
S. Ct. 1346, 1357 n.4 (2008) (finding it unnecessary to reach the question, but assuming,
without deciding, that the Vienna Convention grants individually enforceable rights); Sanchez-
Llamas, 548 U.S. at 343 (same). We have held that “Article 36 of the Vienna Convention does
not create an individually enforceable right.” Medellín v. Dretke, 371 F.3d 270, 280 (5th Cir.
2004) (citing United States v. Jimenez-Nava, 243 F.3d 192, 198 (5th Cir. 2001)). But numerous
other courts have held the opposite, that the Vienna Convention does create an individually
enforceable right. See, e.g., Osagiede v. United States, 543 F.3d 399, 409-10 (7th Cir. 2008)
(collecting cases).

                                               5
                                         No. 08-70003

       As a result of this series of events, Leal — like others of the 51 named
individuals — filed a petition for habeas corpus under Texas law seeking the
review outlined in the Avena decision. After the Texas Court of Criminal
Appeals denied his petition, Leal filed his second habeas petition in the Western
District of Texas seeking the state of Texas’s compliance with the Avena decision
and the Bush declaration. A year after Leal filed his second federal petition, the
Supreme Court, in Medellín v. Texas, considered the issue of Texas’s refusal to
conduct a review pursuant to Avena. The Court held that although the ICJ’s
Avena decision creates an international obligation binding on the United States,
(1) the decision cannot automatically create enforceable domestic law,20 and (2)
the President, acting without legislative or constitutional authority, could not
pre-empt state law to make it binding.21 In short, the Court held that the
several states are not bound to conduct the review ordered by the ICJ in the
Avena decision. The Court then affirmed the Texas Court of Criminal Appeals’s
rejection of Medellín’s successive habeas petition as an abuse of the writ under
state law.22
       The claim on which Leal’s federal petition is based has been foreclosed by
the Supreme Court’s decision in Medellín v. Texas.23 We proceed with our
analysis, however, because the issue before us is whether the district court


       20
            Medellín v. Texas, 128 S. Ct. at 1367.
       21
            Id. at 1371-72.
       22
           Id. at 1353. The Texas court had rejected Medellín’s petition finding it was
procedurally barred and that neither Avena nor the President’s memorandum worked to
remove that procedural bar. Ex parte Medellín, 223 S.W.3d 315, 321 (Tex. Crim. App. 2006)
(violation of Medellín’s Vienna Convention right was previously available factual or legal basis
that could have been raised in prior petition). On the basis of Ex parte Medellín, the Texas
Court of Criminal Appeals dismissed Leal’s state petition. Ex parte Cardenas, No. WR-41743-
02, 2007 WL 678628, at *1 (Tex. Crim. App. Mar. 7, 2007).
       23
          Medellín v. Texas, 128 S. Ct. at 1367, 1371-72; see also In re Fierro, 281 F. App’x 264
(5th Cir. 2008); Gomez v. Quarterman, 529 F.3d 322 (5th Cir. 2008).

                                                6
                                       No. 08-70003

properly determined that it was without jurisdiction, a question not mooted by
the Supreme Court’s decision in Medellín.


C. Applicability of § 2244 to Leal’s Petition
       AEDPA requires a prisoner to obtain authorization from the federal
appellate court in his circuit before he may file a “second or successive” petition
for relief in federal district court.24 Without such authorization, the otherwise-
cognizant district court has no jurisdiction to entertain a successive § 2254
petition.25 Leal asserts, however, that his petition is not successive because it
is based on a claim that was not available to him at the time of his prior petition.
If he is correct, the stringent requirements of § 2244 for obtaining authorization
would not apply.26
       Leal filed his first federal habeas petition in 2000, long before the Avena
decision and the Bush declaration. In March 2004, when the ICJ decided Avena,
Leal’s first petition was still pending; the District Court for the Western District
of Texas did not deny him relief until seven months later. The State asserts that
this gap between the Avena decision and the district court’s denial afforded Leal

       24
          28 U.S.C. § 2244(b)(3). The standards for obtaining authorization to file a successive
petition are demanding. See, e.g., Burton v. Stewart, 549 U.S. 147, 152, 127 S. Ct. 793 (2007).
       25
          28 U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. at 153; United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
       26
          Since Medellín v. Texas was decided, we have considered two other Avena-related
cases. Neither provides much guidance on the second-or-successive question presented here.
In Gomez v. Quarterman, we considered the petitioner’s request for a Certificate of
Appealability pursuant to 28 U.S.C. § 2253 on appeal from denial of his first habeas petition
in which he had contended that his Vienna Convention rights had been violated. 529 F.3d at
324, 326. We rejected Gomez’s petition on the basis of Sanchez-Llamas and Medellín v. Texas.
Id. at 329-30 (citing Medellín v. Texas, 128 S. Ct. at 1357, 1367-72 and Sanchez-Llamas v.
Oregon, 548 U.S. 331, 360, 126 S. Ct. 2669, 2687 (2006)). In In re Fierro, petitioner sought
authorization from this court to file what would have been his third federal habeas petition.
281 F. App’x at 265. We stayed that request while petitioner sought relief from the Texas
courts, during which stay the Supreme Court decided Medellín. As a result of the Court’s
decision, we denied Fierro’s pending request for authorization. Id. at 265-66.

                                               7
                                         No. 08-70003

the opportunity and ample time to amend his first petition to include the claim
on which he now bases this later petition. As such, according to the State, Leal’s
Avena-based claim was previously available and required, but did not merit,
authorization from this court.
       Leal counters that his claim did not arise until (1) the Bush declaration
attempted to make the Avena decision binding on the states and (2) the Texas
courts refused to afford review.27 As a result, he insists, the claim on which this
petition is based was not previously available to him and so, although it is
numerically second, it is not “second or successive” within the meaning of
AEDPA.
       1. Second or Successive Petition
       AEDPA was enacted in part to bring finality to state court judgments.28
Section 2244 lays out the requirements for filing successive petitions, serving as
gate-keeper by preventing the repeated filing of habeas petitions that attack the
prisoner’s underlying conviction.29           The statute does not define “second or
successive,”30 however, and we have made clear that a petition is not “second or
successive” merely because it is numerically second.31 In In re Cain, we defined
a “second or successive” petition as one that “1) raises a claim challenging the


       27
          To be clear, Leal’s argument is not that his right to consular access was violated
although it is from this Vienna Convention right that his claim ultimately derives. Rather, it
is that the Avena decision via the Bush declaration entitle him to review.
       28
            Williams v. Taylor, 529 U.S. 420, 436, 120 S. Ct. 1479 (2000).
       29
            Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333 (1996).
       30
         Hardemon v. Quarterman, 516 F.3d 272, 275 (5th Cir. 2008). The Supreme Court
among others have noted that AEDPA is not a marvel of legislative drafting. See, e.g., Lindh
v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059 (1997) (“All we can say is that in a world of silk
purses and pigs’ ears, [AEDPA] is not a silk purse of the art of statutory drafting.”).
       31
        See, e.g., United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 2000) (quoting
In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)) (finding Cain consistent with Stewart v.
Martinez-Villareal, 523 U.S. 637 (1998)).

                                                8
                                       No. 08-70003

petitioner’s conviction or sentence that was or could have been raised in an
earlier petition; or 2) otherwise constitutes an abuse of the writ.”32 Section 2244
specifies when a later-in-time petition will be heard. Despite its strictures, the
case law clarifies that there is a category of petitions that, even though later in
time, are outside the confines of § 2244 and will be heard because they are not
“second or successive” within the meaning of AEDPA.33
       Leal relies on the Cain definition to assert that his petition falls into the
exceptional category — that is, it is non-successive — because it is based on a
claim unavailable to him at the time of his first habeas petition. According to
Leal, Cain’s sole requirement for a permissible non-successive petition is that
the claim on which it was based had been unavailable at the time of a first
petition. We agree with Leal that his petition is non-successive, but we cannot
embrace the full scope of the rule he advocates. Broadly understood, such an
expansive interpretation of Cain would run foul of the plain language of AEDPA
and be incorrect. We must therefore consider the contours of Cain.
       2. Statutory and Jurisprudential Context
       Cain cannot be read in isolation, but must be considered in the context of
AEDPA, the statute that it interprets.34 The Cain definition of “successive” is

       32
         In re Cain, 137 F.3d at 235. “The core of AEDPA restrictions on second or successive
§ 2255 petitions is related to the longstanding judicial and statutory restrictions embodied in
the form of res judicata known as the ‘abuse of the writ’ doctrine.” Orozco-Ramirez, 211 F.3d
at 868 (quoting United States v. Barrett, 178 F.3d 34, 44 (1st Cir. 1999)). Orozco-Ramirez read
§ 2254 claims in pari materia with those under § 2255. Id. at 864 n.4.
       33
         Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 2853 (2007); Slack v. McDaniel,
529 U.S. 473, 478, 120 S. Ct. 1595 (2000); Orozco-Ramirez, 211 F.3d at 867; In re Cain, 137
F.3d at 235.
       34
            AEDPA reads, in relevant part:

                (b)(1) A claim presented in a second or successive habeas corpus
                application under section 2254 that was presented in a prior
                application shall be dismissed.


                                              9
                                         No. 08-70003

broadly worded while AEDPA’s treatment of “successive” is narrow; and herein
lies the logical flaw in Leal’s broadly stated understanding of Cain and the
reason why we cannot simply apply Cain without further consideration. To read
Cain as does Leal would require us to hold that a petition is non-successive if it
rests on a rule of constitutional law decided after the petitioner’s first habeas
proceeding because such a claim would not have been previously available. But
§ 2244(b) prohibits such a result. Newly available claims based on new rules of
constitutional law (made retroactive by the Supreme Court) are successive under
§ 2244(b)(2)(A): Indeed, this is the reason why authorization is needed to obtain
review of a successive petition. Leal’s view of Cain would permit an end-run
around § 2244. The new rule of constitutional law would be non-successive
because it was previously unavailable, so no authorization would be required.
Were Leal correct, § 2244(b)(2) would be rendered surplusage.35


               (2) A claim presented in a second or successive habeas corpus
               application under section 2254 that was not presented in a prior
               application shall be dismissed unless–
                      (A) the applicant shows that the claim relies on a new rule
                      of constitutional law, made retroactive to cases on collateral
                      review by the Supreme Court, that was previously
                      unavailable; or

                       (B)(i) the factual predicate for the claim could not have
                       been discovered previously through the exercise of due
                       diligence; and

                       (ii) the facts underlying the claim, if proven and viewed in
                       light of the evidence as a whole, would be sufficient to
                       establish by clear and convincing evidence that, but for
                       constitutional error, no reasonable factfinder would have
                       found the applicant guilty of the underlying offense.
28 U.S.C. § 2244.
       35
           The Seventh Circuit recognized this difficulty in In re Page, noting that § 2244(b)
forecloses the argument that constitutional claims are not successive merely because they were
not available at the time a first petition was filed. 170 F.3d 659, 661-62 (7th Cir. 1999); see also
In re Page, 179 F.3d 1024, 1026 (7th Cir. 1999) (“amplifying” first Page opinion). The court held
that a second petition attacking the prisoner’s original judgment, the same judgment attacked
by his first habeas petition, was successive within the meaning of AEDPA even though it was

                                                10
                                           No. 08-70003

       A second petition based on newly discovered evidence presents a similar,
although less pristine, example of the problem created by Leal’s proffered
interpretation. Leal’s view of Cain would permit petitioners filing later habeas
petitions to assert that, because the evidence was not previously discovered or
discoverable, the claim was unavailable; therefore, the later petition is non-
successive. Again, AEDPA forbids such a reading: Section 2244(b)(2)(B)(i)
states that claims based on a factual predicate not previously discoverable are
successive.
       Cain itself is not so broad as Leal contends; his argument ignores the
context in which the decision’s definition of “successive” was provided. In Cain,
we contrasted permissible successive petitions with those in which prisoners
“repeatedly [attack] the validity of their convictions and sentences.”36 It is these
repeated attacks, which often take on new forms as the legal landscape shifts,
that are the evil against which AEDPA is directed and the counterpoint to the
rule laid out in Cain.37
       If AEDPA is aimed at minimizing repeated attacks on an underlying
judgment and, to that end, permits “second or successive” petitions to be heard
only via § 2244, then the small subset of permissible non-successive petitions
must fit within these boundaries. When we look to the jurisprudence we find
that contrasting petitions typically deemed non-successive with those typically
deemed successive illuminates this middle ground. Later habeas petitions
attacking the same judgment that was attacked in a prior petition tend to be
labeled successive and must meet the standards for authorization under §



based on a case decided after the first habeas petition was denied. In re Page, 170 F.3d at 661-
62.
       36
            In re Cain, 137 F.3d at 235.
       37
            Id. at 235, 236 n.1.

                                               11
                                         No. 08-70003

2244.38      In contrast, later habeas petitions attacking distinct judgments,39
administration of an inmate’s sentence,40 a defective habeas proceeding itself,41
or some other species of legal error — when the error arises after the underlying
conviction42 — tend to be deemed non-successive.43 In essence, if the purported
defect existed, or the claim was ripe, at the time of the prior petition, the later
petition is likely to be held successive even if the legal basis for the attack was
not. If, however, the purported defect did not arise, or the claim did not ripen,




       38
          See, e.g., Panetti,127 S. Ct. at 2855 (“In the usual case, a petition filed second in time
and not otherwise permitted by the terms of § 2244 will not survive AEDPA’s ‘second or
successive’ bar.”); Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793 (2007) (petitioner’s
second application was successive because he “twice brought claims contesting the same
custody imposed by the same judgment”); Hardemon v. Quarterman, 516 F.3d 272, 276 (5th
Cir. 2008). The treatment given to unexhausted or unripe claims is not an exception to this
rule, rather it is aligned with it. Stewart v. Martinez-Villareal, 523 U.S. 637, 643-44, 118 S.
Ct. 1618 (1998) (finding that petitioner’s later, now-ripe Ford-based petition was continuation
of previously filed claim, not a separate claim (considering Ford v. Wainwright, 477 U.S. 399,
106 S. Ct. 2595 (1986) (Eighth Amendment bars execution of an insane person))); see also
Panetti, 127 S. Ct. at 2854-55 (requiring petitioners to raise unripe claims prior to ripening to
ensure habeas review tends to contravene the principles of “comity, finality, and federalism”
motivating AEDPA); Slack v. McDaniel, 529 U.S. at 487-88; Orozco-Ramirez, 211 F.3d at 868.
       39
            Hardemon, 516 F.3d at 273.
       40
          Crone v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003) (noting that attack on
administration of a sentence may be a non-successive petition, but denying relief in the case
at bar because the factual basis existed at the time of the first petition (relying on In re Cain,
137 F.3d at 235-36)).
       41
         Ochoa Canales v. Quarterman, 507 F.3d 884, 887 (5th Cir. 2007) (Rule 60(b) motion
attacking “only a defect in the integrity of the federal habeas proceedings should not be treated
as a successive habeas application” (citing Gonzalez v. Crosby, 545 U.S. 524, 532 (2005))).
       42
          Orozco-Ramirez, 211 F.3d at 869 (claim relating to counsel’s performance on out-of-
time appeal, which accrued after denial of first habeas petition, could not have been raised in
first appeal and thus was non-successive, but ineffective-assistance-of-counsel claim arising
from trial counsel’s performance was successive).
       43
         In Crone, for example, the court recognized that the petitioner’s claim did not attack
his underlying conviction, but was denied relief because the factual basis for the new claim had
been previously available. 324 F.3d at 837.

                                                12
                                           No. 08-70003

until after the conclusion of the previous petition, the later petition based on
that defect may be non-successive.
       We need look no farther than Cain itself for illustration. We held that
Cain’s petition was non-successive because it attacked the administration of his
sentence, not his underlying conviction. Cain contended that the prison board
had deprived him of his good-time credit without due process of law.44 The
complained-of disciplinary proceeding by the prison board did not occur until
after proceedings in Cain’s first habeas petition concluded.45 We noted that not
only could Cain’s challenge to those proceedings not have been included in his
first habeas petition, but that the challenge was essentially independent of
Cain’s underlying conviction.46 As Cain illustrates, we may deem a later petition
based on a newly available claim non-successive and outside the confines of
§ 2244 if the defect that it attacks did not arise until after the prior habeas
proceeding.
       With the framework within which we determine whether a petition is
successive or non-successive thus established, we now consider whether Leal’s
second petition was successive or non-successive when filed in March 2007.
       3. Application
       The State claims that Leal could have amended his prior federal petition
to include the Avena-based claim once the ICJ’s judgment was rendered in
March 2004. At that point, Leal’s first petition had been pending for four years.
There may be room for debate as to whether, while a petitioner is this far along
in his initial petition and awaiting a decision, he should be required to add a


       44
            In re Cain, 137 F.3d at 236.
       45
            Id. at 235.
       46
          Id. at 236 (“Indeed, even if his claims are found to be meritorious and his good-time
credits are restored, Cain will continue to serve his sentence as it was imposed by the trial
court.”).

                                               13
                                       No. 08-70003

freshly minted claim to it, but we are satisfied that in this case the State’s
argument misses the mark.47 Remember, Leal does not contend that Avena was
immediately enforceable on the states;48 he claims that it was the Bush
declaration implementing the Avena decision and Texas’s refusal to comply with
the presidential order that has denied him rightful review — and he filed his
second federal petition one week after the Texas Court of Criminal Appeals
denied him relief.49 As the Bush declaration was not issued until after Leal’s
first petition was denied,50 the basis for his claim — Texas’s refusal to conduct
the review of his conviction — did not occur until well after proceedings on his
first petition had concluded.
       As we have explained, when determining whether a later petition is non-
successive, we consider the defect that the later petition attacks and when that
defect arose. Here, Leal does not rely on some novel legal basis to again attack

       47
          We note, however, that other courts have considered the fact that a new claim arose
during the pendency of a petitioner’s first petition relevant, but not determinative, of whether
his later habeas petition was successive. See, e.g., Hines v. United States, 282 F.3d 1002, 1004
(8th Cir. 2002) (failure to amend pending first petition when new constitutional claim arose
was relevant to whether second petition was successive); In re Hill, 113 F.3d 181, 183 (11th
Cir. 1997) (eschewing reliance on “mechanistic test when assessing availability” and finding
that petitioner may be required to “demonstrate infeasibility” of amending pending habeas
petition where new claim arose seven months after second petition filed and three and a half
years before decided); Felker v. Turpin, 83 F.3d 1303, 1306 (11th Cir. 1996), cert. granted by
517 U.S. 1182 (1996) and later dismissed by 518 U.S. 651 (1996) (new claim that arose the day
before prior petition was filed could have been included initially or via amendment, so it was
previously available and relief was denied); Reed v. Quarterman, No. 3-06-CV-1113, 2006 WL
3690389, at *3 (N.D. Tex. Dec. 13, 2006) (failure to amend pending first habeas petition to
include new claim constituted “piecemealing”).
       48
         Leal’s petition and appeal to this court were both filed before the Supreme Court
issued Medellín v. Texas, so while the argument is moot now, it was not at the time the district
court determined whether it had jurisdiction to hear Leal’s petition.
       49
        We stress that the Avena decision specifically instructed Texas to review Leal’s case,
he was one of 51 individuals expressly identified by the ICJ.
       50
         The Bush declaration was issued while Leal’s first petition was pending on appeal and
therefore too late for Leal to amend that petition. And, we denied Leal’s motion to stay and
abate the proceedings so that he could return to state court to exhaust the claim.

                                              14
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his conviction, an undertaking we would likely deem successive. Rather, he
alleges a defect that arose, he insists, after his conviction.51 Although the
ultimate goal of Leal’s petition is to obtain court review of his conviction, he is
actually attacking the State’s failure to comply with the Avena decision as
implemented by the Bush declaration. And, we will not require courts to divine
a petitioner’s underlying ulterior motives. Texas did not deny Leal’s claim based
on Avena and the Bush declaration until March 2007, well after the resolution
of Leal’s first habeas petition. As a result, the Avena/Bush declaration claim was
not previously available to him, making Leal’s petition non-successive.
       4. The Effect of Medellín v. Texas
       As it was non-successive, Leal’s second habeas petition did not require
authorization, so it follows that the district court did have jurisdiction. The legal
ground has shifted once again, however, and although the district court was
incorrect in finding that it was without jurisdiction, Leal will get no further. In
the unusual posture of this case, Leal once had a newly available claim, but no
longer has it. As we have said, Leal’s petition attacked Texas’s refusal to comply
with Avena and the Bush declaration, but that refusal can no longer serve as the
basis for a petition for habeas corpus. The Supreme Court’s decision in Medellín
v. Texas, has deprived the Avena decision and the Bush declaration of whatever
legal force Leal might claim they ever had.52 Leal cannot now argue that Texas
was required to review his case because Medellín v. Texas foreclosed this




       51
         This is a critical fact in this case. Were Leal’s second petition seeking review of his
conviction grounded solely on the failure to provide him consular access, his claim would be
successive and forced under the ambit of § 2244 where it would surely fail to merit
authorization.
       52
            ___ U.S. ___, 128 S. Ct. 1346, 1360, 1372 (2008).

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                                       No. 08-70003

contention by holding that neither the ICJ nor President Bush had authority to
order the State to conduct such a review.53
                                   III. CONCLUSION
       Leal’s second habeas petition was non-successive, so it did not require
authorization from us to be considered by the district court. Therefore, we
reverse the district court’s holding that it lacked jurisdiction to consider Leal’s
petition. That said, however, for the reasons last stated, we affirm the dismissal
of his habeas petition, albeit with prejudice.54 We also vacate the district court’s
determination based on its erroneous assumption of hypothetical jurisdiction.
AFFIRMED in part; VACATED in part.




       53
          In re Fierro, 281 F. App’x 264 (5th Cir. 2008); Gomez v. Quarterman, 529 F.3d 322
(5th Cir. 2008).
       54
         Leal contends that Congress will pass legislation requiring state compliance with the
Avena decision. Such a law, or a State’s refusal to comply with such a law, might provide a
previously unavailable basis for a petition for habeas corpus, so our denial of Leal’s instant
petition with prejudice will not be an impediment to his filing yet another such petition, as it
would not be successive either.

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