     Case: 14-70004    Document: 00512509112     Page: 1   Date Filed: 01/22/2014




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

                                                                        FILED
                                  No. 14-70004                    January 22, 2014
                                                                     Lyle W. Cayce
                                                                          Clerk
EDGAR ARIAS TAMAYO,
                                            Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent - Appellee



              Application for a Certificate of Appealability from
                     the United States District Court for
                        the Southern District of Texas


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Edgar Arias Tamayo (“Tamayo”) is scheduled to be executed by the State
of Texas on January 22, 2014. He has moved this court for a certificate of
appealability (“COA”) authorizing him to appeal the district court’s denial of
habeas relief concerning his claim based on a recent decision of the Inter-
American Commission on Human Rights (the “IACHR”). Specifically, he seeks
a certificate of appealability on the following question, together with a question
pertinent to his associated stay request and governed by the determination of
the application as to this question: “Whether Appellant is entitled to habeas
relief as a result of the United States’ binding international treaty
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obligations—as interpreted in the decision of the Inter-American Commission
on Human Rights dated January 15, 2014—which entitle him to remain alive
to secure his access to the juridical review and reconsideration of his conviction
and sentence.” 1 Because Tamayo has failed to make a substantial showing of
the denial of a constitutional right with respect to this claim, his request for a
COA and associated request for stay of execution are DENIED.
                           Factual and Procedural History
       Tamayo and Jesus Mendoza were arrested in the parking lot of a bar in
Harris County, Texas on January 31, 1994, for robbing a patron. After the men
were searched and handcuffed, Officer Guy Gaddis of the Houston Police
Department placed them in a patrol car, with Tamayo seated behind Officer
Gaddis. When Officer Gaddis stopped to make a phone call, Tamayo revealed
to Mendoza that he had a gun in his waistband. The evidence at trial showed
that Tamayo managed to remove the gun from his waistband despite the fact
that he was handcuffed. When Officer Gaddis returned to the vehicle and
drove away, Tamayo shot Officer Gaddis multiple times.                     The patrol car
crashed into a residence, and Tamayo escaped through a broken window. The
police were called to the scene and captured Tamayo as he ran down the street
near the crash, still handcuffed. Officer Gaddis was taken to the hospital
immediately, but he was pronounced dead upon arrival.
       Tamayo gave two written statements admitting that he had the gun in
the police car, that he shot Gaddis, and that he knew Gaddis was a police
officer. The State presented evidence that Tamayo had purchased the gun
several days before the murder. At trial, the evidence indicated that Tamayo,


       1 Tamayo also seeks a COA with reference to his claim that Texas failed to honor its
promises to him regarding merits review of his Vienna Convention claim. We have previously
addressed this issue and, therefore, dismiss this portion of his application as successive and
barred by 28 U.S.C. 2244(b)(1).

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rather than Mendoza, was the shooter (logically, it could be only one or the
other, or both in concert, as Officer Gaddis could not have shot himself in the
back of the head three times). The jury found Tamayo guilty of capital murder
and subsequently sentenced him to death. Tamayo appealed to the Texas
Court of Criminal Appeals (“CCA”), which affirmed his conviction. Tamayo v.
State, No. AP-72,033 (Tex. Crim. App. 1996).
      In February 1998, Tamayo sought state habeas relief based on ineffective
assistance of counsel (“IAC”) for failing to investigate evidence of organic brain
damage. The CCA rejected Tamayo’s claim in June 2003. Ex parte Tamayo,
No. WR-55,690-01 (Tex. Crim. App. 2003) (not designated for publication).
      In September 2003, Tamayo filed his federal habeas application,
reasserting his IAC claim based on counsel’s failure to investigate the alleged
organic brain injury. Tamayo moved to stay the proceedings in 2005 to allow
him to return to state court to present additional claims, including two claims
under the International Court of Justice’s (“ICJ”) decision concerning the
alleged violation of his consular notification rights under the Vienna
Convention on Consular Relations (the “Vienna Convention”), Apr. 24, 1963,
21 U.S.T. 77, T.I.A.S. No. 6820 and a claim that he was ineligible for execution
under Atkins v. Virginia, 536 U.S. 304 (2002). The CCA dismissed these
successive habeas petitions as an abuse of the writ. See Ex parte Tamayo, 2010
WL 2332395 (Tex. Crim. App. 2010) (not designated for publication) (Atkins
Claim); Ex parte Tamayo, 2008 WL 2673775 (Tex. Crim. App. 2008) (not
designated for publication) (Vienna Convention Claim); Ex parte Tamayo, WR-
55,690-02 (Tex. Crim. App. Sept. 10, 2003) (not designated for publication)
(Vienna Convention Claim).
      Tamayo amended his federal habeas petition, adding his Vienna
Convention and Atkins claims. In March of 2011, the federal district court


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denied Tamayo federal habeas relief on his claims and determined that he was
not entitled to a COA. Tamayo v. Thaler, 4:03-cv-3809 (S.D. Tex. Mar. 25,
2011).
      Tamayo then sought a COA from this court, which we denied in
December of 2011. Tamayo v. Thaler, No. 11-70005 (5th Cir. Dec. 21, 2011).
In this opinion, we addressed Tamayo’s IAC claims. We concluded that his
claim of IAC predicated on a failure to investigate and present evidence of his
childhood circumstances was procedurally barred as unexhausted. Id. at *8.
We concluded that jurists of reason would not debate the reasonableness of the
state court’s disposition of his IAC claim based upon the failure to investigate
and present mitigating evidence of organic brain damage. Id. at *9. In this
regard, we analyzed the standards of Strickland v. Washington, 466 U.S. 668,
687 (1984), which requires both ineffectiveness and prejudice in order for an
IAC claim to be successful. Tamayo, No. 11-70005, at *9. We concluded that
Tamayo had not raised a debatable issue on the prejudice prong because of the
“double-edged sword” nature of the proffered evidence. Id. at *9-12. We also
addressed Tamayo’s claim of mental retardation under Atkins v. Virginia, 536
U.S. 304, 321 (2002). We noted the untimeliness of his claim under federal law
and further stated:
      The record indicates that Tamayo’s habeas counsel exercised due
      diligence after Atkins was decided and had Tamayo tested;
      however, the initial test showed that Tamayo was not mentally
      retarded. It was only after Tamayo was tested again after the
      limitations period had run that he was diagnosed as mentally
      retarded. The factual predicate for the claim—Tamayo’s alleged
      mental retardation—was available when Tamayo was tested
      initially; it was the person evaluating the factual predicate that
      changed.
Tamayo, No. 11-70005, *13. Finally, we denied his COA application as to a
Vienna Convention violation claim because “[t]he United States Supreme


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Court has never held that the Vienna Convention creates a private right of
action that is enforceable by an individual.” Id. at *14. We also denied his
request regarding alleged promises of Texas as unexhausted and procedurally
barred. Id. at *15. The Supreme Court denied Tamayo’s petition for certiorari
in November of 2012. Tamayo v. Thaler, 133 S. Ct. 608 (2012).
      On September 17, 2013, in response to the state’s motion, the 209th
Harris County District Court scheduled Tamayo to be executed on January 22,
2014. On December 13, 2013, Tamayo filed a written application for clemency
with the Texas Board of Pardons and Paroles (the “Board”).
      On January 13, 2014, Tamayo filed a § 1983 claim in federal district
court asserting that the Board’s procedures violate his due process rights. He
further sought a TRO or preliminary injunction preventing the Board from
voting and the Governor from acting on the Board’s recommendation pending
the outcome of his lawsuit. He further sought a stay of execution pending his
discovery requests in connection with his § 1983 claim. On January 21, 2014,
the district court denied his request for a temporary restraining order and for
a preliminary injunction. Tamayo v. Perry, No. 1:14-CV-31 (W.D. Tex. Jan. 21,
2014). We affirmed the district court’s decision. See Tamayo v. Perry, No. 14-
70003 (5th Cir. Jan. 22, 2014). The Board declined to recommend clemency for
Tamayo on January 21, 2014.
      On January 14, 2014, Tamayo filed a successive habeas petition in Texas
state court, alleging, among other things, that he did not receive a fair trial in
light of “newly discovered evidence” that the Harris County District Attorney’s
office coached Mendoza by “instruct[ing] him how he was to testify, and what
he should—and should not—say.” The CCA denied relief. Ex parte Tamayo,
No. WR-55,690-05, 2014 Tex. Crim. App. Unpub. LEXIS 59, at *3 (Tex. Crim.
App. Jan. 21, 2014) (not designated for publication).


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       On January 16, 2014, Tamayo filed another successive habeas petition
in Texas state court, arguing that his sentence of death is “illegal and
unconstitutional” based on his alleged mental retardation. In support of this
claim, he relied on the newly-released decision of the IACHR. The IACHR’s
decision concluded, inter alia, that Tamayo presented evidence of mental
disability that should have been reviewed on the merits by the state courts 2
and that the state’s violation of the Vienna Convention through its denial of
his consular notification rights prejudiced Tamayo. 3 In connection with this
successive habeas petition, Tamayo filed a request for a stay of execution in
light of what he believes are novel issues of law—including the amount of
deference, if any, that should be given the IACHR’s decision by Texas state
courts.
       In response, the state explained that Tamayo’s claim based on the
Vienna Convention has been previously raised and dismissed in two state
habeas proceedings and, therefore, is without merit. The state further pointed
out that in order for a “new law” to be cognizable under TEX. CODE CRIM. PROC.
art. 11.071 § 5—and, therefore, permit leave to file a subsequent application
for a writ of habeas corpus—it must emanate from “a final decision of the
United States Supreme Court, a court of appeals of the United States, or a
court of appellate jurisdiction of this state.” See Ex parte Medellin, 223 S.W.3d



       2  Specifically, the IACHR’s decision stated: “[T]he [IACHR] concludes that the
United States violated Articles I and XXVI of the American Declaration to the detriment of
Mr. Tamayo by refusing to provide funds for an independent expert evaluation and by
denying any opportunity to present evidence regarding this mental and intellectual disability
and be heard on the merits of that evidence.” IACHR’s Decision at p. 37.

       3 Specifically, the IACHR’s decision stated: “Given the comprehensive assistance
provided by the Mexican Government to its citizens in death penalty cases in the United
States, the IACHR believes that there is a reasonable probability that, had Mr. Tamayo
received consular assistance at the time of his arrest, this would have had a positive impact
in the development of his criminal case.” IACHR’s Decision at p. 31.

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315, 352 (Tex. Crim. App. 2006) (citation and quotation marks omitted).
Similar to the ICJ opinion concerning consular rights provided by the Vienna
Convention under which Medellin sought leave to file a subsequent habeas
petition, the state argued that the IACHR decision did not emanate from these
sources and, therefore, Tamayo failed to demonstrate that he was entitled to
file a subsequent habeas petition under TEX. CODE CRIM. PROC. art. 11.071 § 5.
The state further argued that the CCA should not exercise original habeas
jurisdiction with respect to the IACHR decision because the CCA declined to
exercise original jurisdiction based on Medellin’s similar request based on the
ICJ opinion. See Ex parte Medellin, 280 S.W.3d 854, 856 (Tex. Crim. App.
2008). On January 21, 2014, the Texas Court of Criminal Appeals denied
relief. Ex parte Tamayo, No. WR-55,690-06, 2014 Tex. Crim. App. Unpub.
LEXIS 59, at *3 (Tex. Crim. App. Jan. 21, 2014) (not designated for
publication).
       Following this latter ruling, Tamayo filed a federal habeas petition in
connection with his claim based on the IACHR’s decision. The district court
concluded that the petition was a successive petition and transferred it to our
court under 28 U.S.C. § 1631. Tamayo v. Stephens, No. 4:03-CV-3809 (S.D.
Tex. Jan. 21, 2014). We concluded that the application predicated on last
week’s IACHR decision was not successive and remanded to the district court.
Tamayo v. Stephens, No. 14-20015 (5th Cir. Jan. 21, 2014). The district court
denied habeas relief, denied a motion to stay the execution, and declined to
issue a COA. Tamayo v. Stephens, No. 4:03-CV-3809 (S.D. Tex. Jan. 22, 2014).
Tamayo now seeks a COA from our court.
                                   Discussion
      A § 2254 petitioner must obtain a COA to appeal the district court’s
denial of his petition. Blue v. Thaler, 665 F.3d 647, 653 (5th Cir. 2011); see also


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28 U.S.C. § 2253(c)(2). A COA may be issued only after the petitioner “has
made a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). To meet this standard, Tamayo must “sho[w] that reasonable
jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” See Miller-El,
537 U.S. 322, 336 (2003).    As we have previously observed in death penalty
cases, “any doubts as to whether a COA should issue must be resolved in the
petitioner's favor.” Blue, 665 F.3d at 653 (citation and internal quotation
marks omitted).
      To understand whether reasonable jurists would debate the claim, we
must consider standards applicable to federal review of state habeas
proceedings. Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000) (noting
that “the determination of whether a COA should issue must be made by
viewing the petitioner’s arguments through the lens of the deferential scheme
laid out in 28 U.S.C. § 2254(d)”). To receive federal habeas relief on his claim,
Tamayo would have to show that the CCA’s denial of his state habeas petition
was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” § 2254(d)(1). Importantly, “[t]he question under [the Antiterrorism
and Effective Death Penalty Act of 1996] is not whether a federal court believes
the state court’s determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007); see also Harrington v. Richter, 131 S. Ct. 770, 786-87
(2011) (“As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well


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understood and comprehended in existing law beyond any possibility for
fairminded disagreement.”).
      Tamayo admitted to the state court that his petition reflects a novel
argument. By definition, then, we cannot conclude that he has made the
necessary showing that jurists of reason would debate whether the state’s
resolution of his claims represents an unreasonable application of federal law
as construed by the Supreme Court.
      The Court has addressed the effect of international law in this context in
Medellin v. Texas, 552 U.S. 491 (2008). In Medellin, the ICJ issued a decision
holding that the United States breached its obligations under Article 36 of the
Vienna Convention by failing to notify Tamayo and other Mexican nationals of
their right to consular assistance after their arrests. Id. at 497-98; see also
Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) (“Avena”),
2004 I.C.J. 12. In light of this violation of the Vienna Convention, the ICJ
directed that courts review the convictions and sentences of these Mexican
nationals. Following this decision, then-President George W. Bush issued a
memorandum stating that “‘the United States will discharge its international
obligations under the decision of the International Court of Justice in [Avena],
by having State courts give effect to the decision in accordance with general
principles of comity in cases filed by the 51 Mexican nationals addressed in
that decision.’” Medellin, 552 U.S. at 503 (alteration in original) (quoting
President George W. Bush, Memorandum for the Attorney General (Feb. 28,
2005) [hereinafter “President’s Memorandum”]).
      When the State of Texas declined to give effect to the ICJ opinion,
Medellin filed a state habeas petition seeking to compel the state to review his
conviction and sentence. Id. at 504. Following the state’s denial of relief, the
Supreme Court granted certiorari and rejected Medellin’s claim that the ICJ’s


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judgment concerning the Vienna Convention created a “binding” obligation on
state and federal courts.      Id.   The Court explained that the Vienna
Convention—as well as the Optional Protocol that permitted claims alleging
violations of the Vienna Convention to be brought in the ICJ—was not “self-
executing” and therefore could not be binding domestic law unless Congress
enacted a statute implementing it. Id. at 514. As a result, even in light of the
Presidential Memorandum, the Court held that Texas could not be compelled
to give effect to the ICJ’s judgment or the obligations flowing from the Vienna
Convention. Id.
      Thus, the only guidance we have from the Court for this case goes the
opposite way. In the ensuing 10 years since Medellin, Congress has failed to
act, leaving us in the position of being unable to address the merits of the
IACHR decision by way of a federal habeas. See Leal Garcia v. Texas, 131 S.
Ct. 2866, 2868 (2011) (per curiam) (noting the failure of Congress to enact
implementing legislation and stating that “[i]f a statute implementing Avena
had genuinely been a priority for the political branches, it would have been
enacted by now.”). Moreover, as the district court observed, the federal circuit
courts that have considered this issue have concluded that IACHR decisions
do not create a binding obligation on domestic courts. See, e.g., 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).
      We respect the concerns expressed by the executive branch, such as
Secretary of State Kerry who wrote a letter on Tamayo’s behalf, but “[w]e have
no authority to stay an execution in light of an ‘appeal of the President’
presenting free-ranging assertions of foreign policy consequences, when those
assertions come unaccompanied by a persuasive legal claim.” Leal Garcia, 131


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S. Ct. at 2868 (internal citations omitted).            Notably, the only significant
difference between Tamayo’s first request for a COA and the present request
is that the latter is based on findings of the IACHR, rather than a decision of
the ICJ. The same considerations that animated our decision there, compel the
result here. 4 See Tamayo, 11-70005, *16.
       We nonetheless issue this opinion as quickly as possible, to allow Tamayo
the ability to present his arguments for overruling or revising the above-
described precedents to the Supreme Court.
                                       Conclusion
       Tamayo’s application for a COA and associated request for stay of
execution is DENIED.




       4 We further observe that Tamayo filed several state habeas petitions post-dating
Atkins v. Virginia, 536 U.S. 304 (2002), in which he did not allege that his conviction and
sentence were unconstitutional as a result of his alleged mental retardation. See Ex Parte
Tamayo, No. 9422714-E (Jan. 14, 2014); Ex Parte Tamayo, No. 9422714-C (Mar. 21, 2005);
Ex Parte Tamayo, No. 9422714-B (June 15, 2003). Importantly, all of these filings came after
the Mexican consulate was notified of Tamayo’s situation and the Supreme Court issued its
decision in Atkins.

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