EX PARTE HELIBERTO CHI (Concurring Statement)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-61,600-04

EX PARTE HELIBERTO CHI, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 0805594A FROM THE

CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY

Price, J., filed a concurring statement.

CONCURRING STATEMENT

The applicant is a Honduran national. In this, his second subsequent post-conviction application for writ of habeas corpus, the applicant alleges for the first time that he cannot be executed without violating mandatory obligations mutually undertaken between the United States and Honduras under the Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras. (1) He argues that this particular treaty, unlike the treaties at issue in Medellin v. Texas, (2) are self-executing. He also argues that they confer individual rights. He argues that, under the Supremacy Clause, (3) the treaty obligations undertaken by the United States in the Treaty of Friendship, Commerce and Consular Rights with Honduras are binding upon and enforceable in our domestic courts, and should trump any contrary state law. Among those treaty obligations is the obligation to afford Honduran nationals in this country "that degree of protection that is required by international law." This, he asserts, incorporates the protection of the Vienna Convention on Consular Relations, (4) which includes the interpretation of Section 36 of the Vienna Convention which was issued by the International Court of Justice in the Avena decision. (5)

Assuming that the treaty that the applicant now invokes is indeed self-executing, and that it actually confers individually enforceable rights upon Honduran nationals in the United States, the applicant still faces an insurmountable burden in raising this claim for the first time in a subsequent writ application. Under the Supreme Court's opinion in Sanchez-Llamas v. Oregon, (6) unless the treaty in question contains "a clear and express statement to

the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State." (7) Thus, notwithstanding the applicant's Supremacy Clause argument, we are bound by Article 11.071, Section 5's restrictions on subsequent post-conviction habeas corpus applications absent "a clear and express statement" in the Treaty of Friendship, Commerce and Consular Rights with Honduras to the contrary. (8) The applicant does not direct us to any statement in the treaty that I would regard as a "clear and express" indication that our abuse-of-the-writ provisions (or any other state doctrine of procedural default) should not apply.

In the alternative, the applicant argues that he satisfies Section 5 of Article 11.071 because of language in Medellin v. Texas suggesting that the Treaty of Friendship, Commerce and Consular Relations between the United States and Honduras is, in fact, self-executing and that, as such, it is enforceable in our domestic courts. (9) He contends that this observation in Medellin constitutes a newly available legal basis for decision under Article 11.071, Section 5(d). But that part of the Medellin opinion to which the applicant alludes does not seem to announce a new legal doctrine that was "not recognized by or could not have been reasonably formulated from a final decision of" any of our domestic appellate courts. Indeed, it seems apparent from the case law cited by the Supreme Court at this point in its opinion that the law before Medellin was sufficiently clear that we may very well have regarded the treaty that the applicant now invokes as self-executing, and (assuming we also found that it confers an individually enforceable right) thus, enforceable in the courts of Texas had he raised the claim timely at the first available opportunity. But he did not, and we are therefore constrained by the statutory abuse-of-the-writ doctrine.

With these additional observations, I join the Court's order.

Filed: August 6, 2008

Do Not Publish

1. 45 Stat 2618, 1928 WL 26688 (U.S. Treaty)

2. ___ U.S. ___, 128 S. Ct. 1346 (2008).

3. U.S. Const. art. II, § 2, cl. 2.

4. Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820.

5. Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31).

6. 548 U.S. 331 (2006).

7. Id. at 351, quoting Breard v. Greene, 523 U.S. 371, 375 (1998).

8. Tex. Code Crim. Proc. art. 11.071, § 5.

9. 128 S. Ct. at 1365-66.