PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ANGEL FRANCISCO BREARD,
Petitioner-Appellant,

v.

SAMUEL V. PRUETT, Warden,
Mecklenburg Correctional Center,
                                                                      No. 96-25
Respondent-Appellee.

THE HUMAN RIGHTS COMMITTEE OF
THE AMERICAN BRANCH OF THE
INTERNATIONAL LAW ASSOCIATION,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-96-366-3)

Argued: October 1, 1997

Decided: January 22, 1998

Before HAMILTON and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in
which Judge Williams joined. Senior Judge Butzner wrote a concur-
ring opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Gray Broaddus, MCGUIRE, WOODS, BATTLE
& BOOTHE, L.L.P., Richmond, Virginia, for Appellant. Donald
Richard Curry, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Richmond, Virginia, for Appellee. ON
BRIEF: Alexander H. Slaughter, Dorothy C. Young, MCGUIRE,
WOODS, BATTLE & BOOTHE, L.L.P., Richmond, Virginia;
Michele J. Brace, VIRGINIA CAPITAL REPRESENTATION
RESOURCE CENTER, Richmond, Virginia, for Appellant. Jeffrey L.
Bleich, San Francisco, California, for Amicus Curiae.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Following a jury trial in the Circuit Court for Arlington County,
Virginia, Angel Francisco Breard, a citizen of both Argentina and
Paraguay, was convicted and sentenced to death for the murder of
Ruth Dickie. He now appeals the district court's denial of his petition
for writ of habeas corpus. See 28 U.S.C.§ 2254. We affirm.

I

In February 1992, Ruth Dickie resided alone at 4410 North Fourth
Road, Apartment 3, in Arlington County, Virginia. At about 10:30 or
10:45 p.m. on February 17, 1992, Ann Isch, who lived in an apart-
ment directly below Dickie's, heard Dickie and a man arguing loudly
in the hall. According to Isch, the arguing continued as she heard Dic-
kie and the man enter Dickie's apartment. Almost immediately there-
after, Isch called Joseph King, the maintenance person for the
apartment complex. Upon arriving at Dickie's apartment, King
knocked on the door and heard a noise that sounded like someone was
being dragged across the floor. After receiving no response to his
knocking, King called the police.

When the police arrived, they entered Dickie's apartment with a
master key that King provided. Upon entering the apartment, the
police found Dickie lying on the floor. She was on her back, naked
from the waist down, and her legs were spread. She was bleeding and
did not appear to be breathing. The police observed body fluid on
Dickie's pubic hair and on her inner thigh. Hairs were found clutched

                    2
in her bloodstained hands and on her left leg. Dickie's underpants had
been torn from her body. A telephone receiver located near her head
was covered with blood.

An autopsy revealed that Dickie had sustained five stab wounds to
the neck; two of which would have caused her death. Foreign hairs
found on Dickie's body were determined to be identical in all micro-
scopic characteristics to hair samples taken from Breard. Hairs found
clutched in Dickie's hands were Caucasian hairs microscopically sim-
ilar to Dickie's own head hair and bore evidence that they had been
pulled from her head by the roots. Semen found on Dickie's pubic
hair matched Breard's enzyme typing in all respects, and his DNA
profile matched the DNA profile of the semen found on Dickie's
body.

Breard was indicted on charges of attempted rape and capital mur-
der. Following a jury trial, he was convicted of both charges. The jury
fixed Breard's punishment for the attempted rape at ten years' impris-
onment and a $100,000 fine. In the bifurcated proceeding, the jury
heard evidence in aggravation and mitigation of the capital murder
charge. Based upon findings of Breard's future dangerousness and the
vileness of the crime, the jury fixed Breard's sentence at death. The
trial court sentenced Breard in accordance with the jury's verdicts.

Breard appealed his convictions and sentences to the Supreme
Court of Virginia, and that court affirmed. See Breard v.
Commonwealth, 445 S.E.2d 670 (Va. 1994). On October 31, 1994,
the United States Supreme Court denied Breard's petition for a writ
of certiorari. See Breard v. Virginia, 513 U.S. 971 (1994).

On May 1, 1995, Breard sought state collateral relief in the Circuit
Court for Arlington County by filing a petition for writ of habeas cor-
pus. On June 29, 1995, the circuit court dismissed the petition. On
January 17, 1996, the Supreme Court of Virginia refused Breard's
petition for appeal.

Breard then sought federal collateral relief in the United States Dis-
trict Court for the Eastern District of Virginia by filing a petition for
writ of habeas corpus on August 30, 1996. On November 27, 1996,
the district court denied relief. See Breard v. Netherland, 949 F. Supp.

                     3
1255 (E.D. Va. 1996). On December 24, 1996, Breard filed a timely
notice of appeal. On April 7, 1997, the district court granted Breard's
application for a certificate of appealability as to all issues raised by
Breard in his application. See 28 U.S.C.§ 2253; Fed. R. App. P. 22.

II

A

The Antiterrorism and Effective Death Penalty Act ("AEDPA") of
1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), amended, among
other things, 28 U.S.C. § 2244 and §§ 2253-2255, which are parts of
the Chapter 153 provisions that govern all habeas proceedings in fed-
eral courts. The AEDPA, which became effective on April 24, 1996,
also created a new Chapter 154, applicable to habeas proceedings
against a state in capital cases. The new Chapter 154 applies, how-
ever, only if a state "opts in" by establishing certain mechanisms for
the appointment and compensation of competent counsel. In Lindh v.
Murphy, 117 S. Ct. 2059 (1997), the Supreme Court held that
§ 107(c) of the AEDPA, which explicitly made new Chapter 154
applicable to cases pending on the effective date of the AEDPA, cre-
ated a "negative implication . . . that the new provisions of chapter
153 generally apply only to cases filed after the Act became effec-
tive." Id. at 2068. Thus, under Lindh , if a habeas petition was filed
before April 24, 1996, the pre-AEDPA habeas standards apply. See
Howard v. Moore, 1997 WL 755428, at *1 (4th Cir. Dec. 9, 1997) (en
banc) ("Howard filed his habeas petition in the district court prior to
April 26, 1996, the effective date of the AEDPA. We, therefore,
review Howard's claims under pre-AEDPA law." (footnote omitted)).
For habeas petitions filed after April 24, 1996, then, the Chapter 153
provisions apply, see Murphy v. Netherland, 116 F.3d 97, 99-100 &
n.1 (4th Cir. 1997) (applying amended § 2253 in case where state
prisoner filed federal habeas petition after the effective date of the
AEDPA), and the Chapter 154 provisions apply if the state satisfies
the "opt-in" provisions.

Breard filed his federal habeas petition on August 30, 1996.
Accordingly, the Chapter 153 provisions apply. See Howard, 1997
WL 755428, at *1. With respect to the Chapter 154 provisions, the
district court held that they did not apply because the Commonwealth

                     4
of Virginia did not satisfy the "opt-in" provisions of the AEDPA. See
Breard v. Netherland, 949 F. Supp. at 1262. Because the Common-
wealth of Virginia has not appealed this ruling and the record is not
developed on this point, we decline to address whether the Common-
wealth of Virginia's mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel
satisfies the "opt-in" provisions of the AEDPA. Cf. Bennett v.
Angelone, 92 F.3d 1336, 1342 (4th Cir.) (declining to decide whether
the procedures established by the Commonwealth of Virginia for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel satisfy the "opt-in" requirements,
which would render those provisions applicable to indigent Virginia
prisoners seeking federal habeas relief from capital sentences if an
initial state habeas petition was filed after July 1, 1992), cert. denied,
117 S. Ct. 503 (1996). However, we are confident that the "opt-in"
provisions are of no help to Breard.

B

Initially, Breard contends that his convictions and sentences should
be vacated because, at the time of his arrest, the Arlington County
authorities failed to notify him that, as a foreign national, he had the
right to contact the Consulate of Argentina or the Consulate of Para-
guay pursuant to the Vienna Convention on Consular Relations, see
21 U.S.T. 77. The Commonwealth of Virginia argues that Breard did
not raise his Vienna Convention claim in state court and thus failed
to exhaust available state remedies. Furthermore, because Virginia
law would now bar this claim, the Commonwealth of Virginia argues
that Breard has procedurally defaulted this claim for purposes of fed-
eral habeas review. The district court held that, because Breard had
never raised this claim in state court, the claim was procedurally
defaulted and that Breard failed to establish cause to excuse the
default. See Breard v. Netherland, 949 F. Supp. at 1263. Breard's fail-
ure to raise this issue in state court brings into play the principles of
exhaustion and procedural default.

In the interest of giving the state courts the first opportunity to con-
sider alleged constitutional errors occurring in a state prisoner's trial
and sentencing, a state prisoner must exhaust all available state reme-
dies before he can apply for federal habeas relief. See Matthews v.

                     5
Evatt, 105 F.3d 907, 910-11 (4th Cir.), cert. denied, 118 S. Ct. 102
(1997); see also 28 U.S.C. § 2254(b). To exhaust state remedies, a
habeas petitioner must fairly present the substance of his claim to the
state's highest court. See Matthews, 105 F.3d at 911. The exhaustion
requirement is not satisfied if the petitioner presents new legal theo-
ries or factual claims for the first time in his federal habeas petition.
See id. The burden of proving that a claim is exhausted lies with the
habeas petitioner. See Mallory v. Smith, 27 F.3d 991, 994 (4th Cir.
1994).

A distinct but related limit on the scope of federal habeas review
is the doctrine of procedural default. If a state court clearly and
expressly bases its dismissal of a habeas petitioner's claim on a state
procedural rule, and that procedural rule provides an independent and
adequate ground for the dismissal, the habeas petitioner has procedur-
ally defaulted his federal habeas claim. See Coleman v. Thompson,
501 U.S. 722, 731-32 (1991). A procedural default also occurs when
a habeas petitioner fails to exhaust available state remedies and "the
court to which the petitioner would be required to present his claims
in order to meet the exhaustion requirement would now find the
claims procedurally barred." Id. at 735 n.1.

Under Virginia law, "a petitioner is barred from raising any claim
in a successive petition if the facts as to that claim were either known
or available to petitioner at the time of his original petition." Hoke v.
Netherland, 92 F.3d 1350, 1354 n.1 (4th Cir.) (internal quotes omit-
ted), cert. denied, 117 S. Ct. 630 (1996); Va. Code Ann. § 8.01-
654(B)(2) ("No writ [of habeas corpus ad subjeciendum] shall be
granted on the basis of any allegation the facts of which petitioner had
knowledge at the time of filing any previous petition."). Breard con-
tends that he had no reasonable basis for raising his Vienna Conven-
tion claim until April 1996 when the Fifth Circuit decided Faulder v.
Johnson, 81 F.3d 515 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996).
In that case, the court held that an arrestee's rights under the Vienna
Convention were violated when Texas officials failed to inform the
arrestee of his right to contact the Canadian Consulate. Id. at 520.
Breard further maintains that he could not have raised his Vienna
Convention claim in his state habeas petition because the Common-
wealth of Virginia failed to advise him of his rights under the Vienna
Convention. These allegations, however, are inadequate to demon-

                     6
strate that the facts upon which Breard bases his Vienna Convention
claim were unavailable to him when he filed his state habeas petition.

In Murphy, we rejected a state habeas petitioner's contention that
the novelty of a Vienna Convention claim and the state's failure to
advise the petitioner of his rights under the Vienna Convention could
constitute cause for the failure to raise the claim in state court. See
116 F.3d at 100. In reaching this conclusion, we noted that a reason-
ably diligent attorney would have discovered the applicability of the
Vienna Convention to a foreign national defendant and that in previ-
ous cases claims under the Vienna Convention have been raised:

          The Vienna Convention, which is codified at 21 U.S.T. 77,
          has been in effect since 1969, and a reasonably diligent
          search by Murphy's counsel, who was retained shortly after
          Murphy's arrest and who represented Murphy throughout
          the state court proceedings, would have revealed the exis-
          tence and applicability (if any) of the Vienna Convention.
          Treaties are one of the first sources that would be consulted
          by a reasonably diligent counsel representing a foreign
          national. Counsel in other cases, both before and since Mur-
          phy's state proceedings, apparently had and have had no dif-
          ficulty whatsoever learning of the Convention. See, e.g.,
          Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996);
          Waldron v. I.N.S., 17 F.3d 511, 518 (2d Cir. 1993); Mami
          v. Van Zandt, No. 89 Civ. 0554, 1989 WL 52308 (S.D.N.Y.
          May 9, 1989); United States v. Rangel-Gonzales , 617 F.2d
          529, 530 (9th Cir. 1980); United States v. Calderon-Medina,
          591 F.2d 529 (9th Cir. 1979); United States v. Vega-Mejia,
          611 F.2d 751, 752 (9th Cir. 1979).

Id.

Murphy forecloses any argument that Breard could not have raised
his Vienna Convention claim at the time he filed his initial state
habeas petition in May 1995. Accordingly, Breard's Vienna Conven-
tion claim would be procedurally defaulted if he attempted to raise it
in state court at this time. Having reached this conclusion, we can
only address Breard's defaulted Vienna Convention claim if he "can
demonstrate cause for the default and actual prejudice as a result of

                    7
the alleged violation of federal law, or demonstrate that failure to con-
sider the claim will result in a fundamental miscarriage of justice."
Coleman, 501 U.S. at 750.

In order to demonstrate "cause" for the default, Breard must estab-
lish "that some objective factor external to the defense impeded coun-
sel's efforts" to raise the claim in state court at the appropriate time.
Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Murphy, 116
F.3d at 100 (applying Murray and finding that petitioner failed to
establish cause to excuse the default of his Vienna Convention claim).
For the same reasons discussed above, Breard asserts that the factual
basis for his Vienna Convention claim was unavailable to him at the
time he filed his state habeas petition and, therefore, he has estab-
lished cause. But, under Murphy, Breard's showing is insufficient to
allow this court to conclude that the factual basis for his Vienna Con-
vention claim was unavailable. Consequently, there is no cause for the
procedural default. Accordingly, we do not discuss the issue of preju-
dice. See Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995)
(noting that once court finds the absence of cause, court should not
consider the issue of prejudice to avoid reaching alternative holdings),
cert. denied, 116 S. Ct. 1575 (1996).

Finally, we find it unnecessary to address the issue of whether the
AEDPA abrogated the "miscarriage of justice" exception to the proce-
dural default doctrine. Assuming arguendo that the AEDPA has not
eliminated the miscarriage of justice exception articulated in Murray,
477 U.S. at 495-96 (miscarriage of justice exception available to those
who are actually innocent), and Sawyer v. Whitley, 505 U.S. 333, 350
(1992) (miscarriage of justice exception available to those who are
actually innocent of the death penalty, i.e., those habeas petitioners
who prove by clear and convincing evidence that, but for the constitu-
tional error, no reasonable juror would have found the petitioner eligi-
ble for the death penalty), no miscarriage of justice occurred here. In
no set of circumstances has Breard made a showing that he is actually
innocent of the offense he committed, see Murray , 477 U.S. at 495-
96, or innocent of the death penalty in the sense that no reasonable
juror would have found him eligible for the death penalty, see
Sawyer, 505 U.S. at 350. Accordingly, Breard is entitled to no relief
on his Vienna Convention claim.

                     8
C

Breard also contends that his death sentence violates Furman v.
Georgia, 408 U.S. 238 (1972), and its progeny. In asserting this
claim, Breard argues that: (1) given the prosecutor's alleged offer to
forego the death penalty if Breard would plead guilty, the prosecutor
violated his constitutional rights by seeking and obtaining a death sen-
tence once Breard insisted upon pleading not guilty; (2) the Common-
wealth of Virginia imposes the death penalty arbitrarily in capital
murder cases; and (3) his death sentence is unconstitutionally dispro-
portionate. The first two claims mentioned above were never raised
in state court. The remaining claim was raised on direct appeal, but
only as a state law claim, and on the appeal from the denial of state
habeas relief the Virginia Supreme Court found this claim procedur-
ally barred under the rule of Slayton v. Parrigan, 205 S.E.2d 680 (Va.
1974) (holding that issues not properly raised on direct appeal will not
be considered on state collateral review). Because Breard has not
established cause for the obvious procedural default of these claims
or that a miscarriage of justice would result by our failure to consider
any one of these claims, we cannot address the merits.

D

Finally, Breard argues that the aggravating circumstances instruc-
tions given by the trial court are unconstitutionally vague. This claim
is not procedurally barred because the Supreme Court of Virginia
rejected it on direct appeal. See Breard v. Commonwealth, 445 S.E.2d
at 675. In his brief, Breard concedes that we have upheld similar
instructions in the recent cases of Bennett, 92 F.3d at 1345 (rejecting
vagueness challenge to the Commonwealth of Virginia's vileness
aggravating circumstance), and Spencer v. Murray , 5 F.3d 758, 764-
65 (4th Cir. 1993) (rejecting vagueness attack on the future danger-
ousness aggravator). Furthermore, Breard states that he is raising this
claim on appeal only "to preserve this claim for future review should
such be necessary." See Petitioner's Br. at 37. As a panel of this court,
we are bound by Bennett and Spencer, see Jones v. Angelone, 94 F.3d
900, 905 (4th Cir. 1996) (one panel of this court may not overrule
another panel's decision); therefore, we must reject Breard's attack on
the constitutionality of the aggravating circumstances instructions
given by the trial court.

                    9
III

For the reasons stated herein, the judgment of the district court is
affirmed.

AFFIRMED

BUTZNER, Senior Circuit Judge, concurring:

I concur in the denial of the relief requested by Angel Francisco
Breard. I write separately to emphasize the importance of the Vienna
Convention.

I

The Vienna Convention facilitates "friendly relations among
nations, irrespective of their differing constitutional and social sys-
tems." The Vienna Convention on Consular Relations, opened for
signature Apr. 24, 1963, 21 U.S.T. 78, 79 (ratified by the United
States Nov. 12, 1969). Article 36, provides:

          1. With a view to facilitating the exercise of consular func-
          tions relating to nationals of the sending State:

          ***

          (b) if he so requests, the competent authorities of
          the receiving State shall, without delay, inform the
          consular post of the sending State if, within its
          consular district, a national of that State is arrested
          or committed to prison or to custody pending trial
          or is detained in any other manner. Any communi-
          cation addressed to the consular post by the person
          arrested, in prison, custody or detention shall also
          be forwarded by the said authorities without delay.
          The said authorities shall inform the person con-
          cerned without delay of his rights under this sub-
          paragraph;

                     10
          (c) consular officers shall have the right to visit a
          national of the sending State who is in prison, cus-
          tody or detention, to converse and correspond with
          him and to arrange for his legal representation.
          They shall also have the right to visit any national
          of the sending State who is in prison, custody or
          detention in their district in pursuance of a judg-
          ment. Nevertheless, consular officers shall refrain
          from taking action on behalf of a national who is
          in prison, custody or detention if he expressly
          opposes such action.

          2. The rights referred to in paragraph 1 of this Article shall
          be exercised in conformity with the laws and regulations of
          the receiving State, subject to the proviso, however, that the
          said laws and regulations must enable full effect to be given
          to the purposes for which the rights accorded under this
          Article are intended. Id. at 101.

II

The Vienna Convention is a self executing treaty--it provides
rights to individuals rather than merely setting out the obligations of
signatories. See Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996)
(assuming the same). The text emphasizes that the right of consular
notice and assistance is the citizen's. The language is mandatory and
unequivocal, evidencing the signatories' recognition of the impor-
tance of consular access for persons detained by a foreign govern-
ment.

The provisions of the Vienna Convention have the dignity of an act
of Congress and are binding upon the states. See Head Money Cases,
112 U.S. 580, 598-99 (1884). The Supremacy Clause mandates that
rights conferred by a treaty be honored by the states. United States
Const. art. VI, cl. 2. The provisions of the Convention should be
implemented before trial when they can be appropriately addressed.
Collateral review is too limited to afford an adequate remedy.

III

The protections afforded by the Vienna Convention go far beyond
Breard's case. United States citizens are scattered about the world--

                    11
as missionaries, Peace Corps volunteers, doctors, teachers and stu-
dents, as travelers for business and for pleasure. Their freedom and
safety are seriously endangered if state officials fail to honor the
Vienna Convention and other nations follow their example. Public
officials should bear in mind that "international law is founded upon
mutuality and reciprocity . . . ." Hilton v. Guyot, 159 U.S. 113, 228
(1895).

The State Department has advised the states, including Virginia, of
their obligation to inform foreign nationals of their rights under the
Vienna Convention. It has advised states to facilitate consular access
to foreign detainees. Prosecutors and defense attorneys alike should
be aware of the rights conferred by the treaty and their responsibilities
under it. The importance of the Vienna Convention cannot be over-
stated. It should be honored by all nations that have signed the treaty
and all states of this nation.

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