Thursday, June 30, 2011
Media Advisory: Humberto Leal scheduled for execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Humberto Leal, who is scheduled to be executed after 6 p.m. on Thursday, July 7, 2011. A Texas jury sentenced Leal to death in July 1995 for the capital murder of Adria Sauceda.

FACTS OF THE CRIME

On May 20, 1994, sixteen-year-old Adria Sauceda and Humberto Leal were at a party. At some point, an intoxicated but conscious Sauceda was placed in Leal’s car, and Leal got in the vehicle and drove away. About thirty minutes later, Leal’s brother arrived at the party and yelled that Leal had come home with blood on him saying he had killed a girl.

Several of the party members went looking for Sauceda in the same general area where the party was held. They called police after they found her nude body on a dirt road. They noticed Sauceda’s head had been bashed in and it was bleeding. When the police arrived, they saw the nude Sauceda lying on her back. There was a 30- to 40 pound chunk of asphalt lying partially on Sauceda's left arm. Blood was underneath this rock. A smaller rock with blood on it was located near Sauceda’s right thigh. Sauceda’s head was splattered with blood. There was a bloody and broken stick protruding from Sauceda’s vagina.

Later that day, police questioned Leal and searched his house. Police seized a blouse belonging to Sauceda that contained several blood stains, hair and fibers. The police also confiscated Leal’s clothing from the night of the murder. Blood and other bodily fluid were found on Leal’s underwear. Police found blood stains on the passenger door and seat of Leal’s car. Police later arrested Leal at his home. A medical examiner testified that Sauceda died from blows to the head and that based on the injuries to her head, she would had to have been struck with the rock two or three times. The medical examiner said Sauceda’s neck also contained injuries consistent with manual strangulation and that she had three bite marks on her body that matched dental impressions of Leal’s teeth.

Leal admitted at his trial that as he was taking Sauceda from the party he turned in the opposite direction from the way she had directed him to drive and when she attempted to get out of his car he refused to allow her to do so. He testified that when Sauceda finally did exit his car, he attempted to pull her back, but said she began hitting, pushing, and scratching his face. He testified that when Sauceda scratched him, he pushed her, felt something wet on the back of her head, shook her in an unsuccessful attempt to wake her, and then fled in fear when he saw bubbles coming out of her nose.

EVIDENCE OF FUTURE DANGEROUSNESS

During the punishment phase of his trial, the jury learned that two weeks before Sauceda’s murder, Leal sexually assaulted another teenage girl and bit her on the neck. The jury also learned that, following that assault, Leal had repeatedly telephoned the girl’s older sister and threatened to have someone kill her if she testified against him. Finally, the jury learned that Leal had a reputation of not being a peaceful and law abiding citizen and that he had a history of intimidating and bullying his fellow students and teachers.

PROCEDURAL HISTORY

08/17/94 - A Bexar County grand jury indicted Leal for capital murder.
07/11/95 - A Bexar County jury convicted Leal of capital murder.
09/17/97 - Leal filed an original application for a state writ of habeas corpus.
02/04/98 - Leal’s conviction and sentence were affirmed by the Texas Court of Criminal Appeals.
02/22/99 - The Supreme Court denied Leal’s petition for certiorari.
10/20/99 - The Texas Court of Criminal Appeals denied state habeas relief.
03/14/00 - Leal filed a petition for a federal writ of habeas corpus.
03/20/00 - Leal’s petition for certiorari for his first state habeas application was denied.
10/20/04 - A San Antonio federal district court denied habeas relief.
03/24/05 -Leal filed his second state habeas application.
10/13/05 -The U.S. Court of Appeals affirmed the denial of Leal’s first federal habeas petition.
04/17/06 - The Supreme Court denied Leal’s petition for certiorari.
03/07/07 - The Texas Court of Criminal Appeals dismissed Leal’s second state habeas application.
03/14/07 - Leal filed his second federal habeas petition.
12/17/07 - A San Antonio federal district court dismissed Leal’s second federal habeas petition.
03/31/08 - The Supreme Court denied Leal’s petition for certiorari.
06/02/08 - Leal filed a motion for DNA testing in the trial court.
10/10/08 - The trial court denied Leal’s motion for DNA testing.
12/03/08 - The Texas Court of Appeals dismissed appeal of trial court’s denial of DNA testing.
11/18/09 - The Texas Court of Criminal Appeals denied appeal of the trial court’s denial of DNA testing.
12/01/09 - Leal filed a Section 1983 lawsuit in federal district court.
04/21/10 - The federal district court dismissed Leal’s 1983 lawsuit without prejudice.
11/08/10 - The Bexar County trial court scheduled Leal’s execution for July 7, 2011.
03/28/11 - Leal filed lawsuit challenging the Texas lethal-injection protocol.
04/28/11 - The Travis County court dismissed Leal’s lawsuit for want of jurisdiction.
05/18/11 - Leal filed a motion to amend his 1983 suit in a San Antonio federal district court.
06/07/11 - Leal filed a clemency petition with the Board of Pardons and Paroles.
06/10/11 - The Texas Court of Appeals affirmed the Travis County district court’s decision.
06/10/11 - Leal filed a motion for an evidentiary hearing in a San Antonio federal district court
06/14/11 - Leal filed a request for a temporary restraining order in federal district court.
06/16/11 - Leal filed his third federal habeas petition in U.S. District Court.
06/20/11 – Leal’s 1983 suit was dismissed by the federal district court.
06/22/11 – U.S. District Court dismissed Leal’s third federal habeas application without prejudice.
06/23/11 – Leal filed a second subsequent application for post-conviction writ of habeas corpus.
06/27/11 - Leal filed a motion for emergency relief in the Texas Supreme Court.
06/27/11 – The Texas Court of Criminal Appeals denied Leal’s application for a post-conviction writ.
06/28/11 - Leal filed motions for a stay, a cert petition and a petition for a writ of habeas corpus.
06/30/11 - Leal filed appeal of dismissal of his third federal habeas petition.
06/30/11 - The Texas Supreme Court denied Leal's petition for review.
06/30/11 -- The U.S. Court of Appeals for the Fifth Circuit denied Leal's motion for stay.
07/01/11 -- Leal filed a supplemental brief in the U.S. Supreme Court.
07/01/11 -- Leal filed a petition for certiorari in the U.S. the Supreme Court.
07/01/11 -- The U.S. Court of Appeals denied appeal of dismissal of his Section 1983 lawsuit.
07/05/11 -- The Board of Pardons and Paroles decided not to recommend 180-day reprieve of execution.

Texas Execution Information Center by David Carson.

Humberto Leal Garcia Jr., 38, was executed by lethal injection on 7 July 2011 in Huntsville, Texas for the abduction, rape, and murder of a 16-year-old girl.

On 20 May 1994, Leal, then 21, was at an outdoor Friday night party in San Antonio. Adria Sauceda was also at the party. According to witnesses, Sauceda was intoxicated and partially undressed, and was in the middle of a circle of men who were taking turns having sex with her. One man carried her to his truck and, according to a witness, "had his way with her". At some point, Leal told witnesses he was a friend of Sauceda's parents and offered to take her home. The girl - conscious but disoriented - was placed into Leal's vehicle, and Leal drove away.

About thirty minutes later, Leal's brother arrived at the party and excitedly yelled that Leal had come home with blood on him and said he had killed a girl. Several of the party attendees went looking for Sauceda. They called police after they found her nude body on a dirt road. They observed that the victim's head was bashed in, bleeding, and that it was flinching or jerking.

The victim had been raped with a broken stick of lumber about 14 to 16 inches long, which was still protruding from her vagina. There was a gaping hole in her head from the corner of her right eye to the center of her head, and blood was oozing from the hole. There was a bloody rock by the victim's right thigh. Her left arm was under a chunk of asphalt weighing 30 to 40 pounds.

When questioned by police, Leal had scratches and cuts on his body. He stated that he was with Sauceda in his car when she began hitting him and the steering wheel, causing him to hit a curb. He tried to calm her down, but she leaped from the car and ran away. After waiting about ten to fifteen minutes to see if she would return, he went home. After the police informed Leal that his brother had also given a statement, Leal gave another statement. This time, Leal claimed that he followed Sauceda after she jumped out of the car. She attacked him, and he pushed her away. She fell on the ground and did not get up. Leal attempted to wake her, but could not. When he saw bubbles coming out of her nose, he got scared and left. He said he went home, prayed, and told family members what had happened.

Police searched Leal's house and found a blouse belonging to Sauceda that had blood stains and hair on it. Police also found traces of blood on the passenger door and seat of Leal's car, from blood stains that had been wiped off.

At Leal's trial, the medical examiner testified that Sauceda died from blows to the head. She also had signs of manual strangulation on her neck, and three bite marks matching Leal's dental impressions on her body. He further testified that the victim received some of her injuries while standing up. She received her head injuries while lying flat on her back, with the assailant standing over her.

Leal testified that as he was driving Sauceda from the party, she directed him which way to go, but he turned in the opposite direction. She attempted to get out of the car, but he refused to allow her to do so. When she finally did manage to get out, he attempted to pull her back, but she began hitting, pushing, and scratching his face. At that point, he pushed her. He then felt something wet on the back of her head, shook her in an attempt to wake her, and then fled in fear when he saw bubbles coming out of her nose.

Leal had no prior prison record, but he had been accused of another rape occurring two weeks before Sauceda's murder. In that incident, Leal raped another teenage girl and bit her on the neck. He then repeatedly telephoned the victim's older sister and threatened to have her killed if she testified against him.

A jury convicted Leal of capital murder in July 1995 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in February 1998. All of his subsequent appeals in state and federal court were denied.

Although Leal had lived in the U.S. illegally since the age of two, he was a citizen of Mexico. According to the 1963 Vienna Convention on Consular Relations, he had a right to contact the Mexican consulate at the time of his arrest. Throughout his appeals, U.S. and Mexican officials attempted to have Leal's death sentence commuted because he was not informed of his consular rights.

In March 2005, in connection with a similar case involving Mexican national Jose Medellin, who was convicted in the gang rape and murder of two teenage girls, President George W. Bush ordered a review of all U.S. death row cases involving foreign nationals to determine whether their consular rights were respected. The Texas Court of Criminal Appeals, however, ruled in November 2006 that Bush's directive and the rulings of the World Court were not binding. The U.S. Supreme Court ruled in favor of the state in March 2008 in Medellin v. Texas, clearing the way for Medellin's execution later that year.

As Leal's execution date approached, President Obama appealed to Texas officials to halt the execution, warning that it would violate international law and cause "irreparable harm" to U.S. interests. Obama warned that American citizens traveling abroad could be in jeopardy of losing their consular rights if Leal was executed. He also asked the U.S. Supreme Court to stay the execution because of pending legislation in the Senate that could force states to comply with international law. Leal's lawyers also filed late appeals on his behalf. In their clemency appeal to the Texas Board of Pardons and Paroles, they wrote, "There can be little doubt that if the government of Mexico had been allowed access to Mr. Leal in a timely matter, he would not now be facing execution for a capital murder he did not commit."

As in Medellin's case, Texas did not heed the protests. Governor Rick Perry's office released a statement that Leal was guilty of a heinous crime and deserved to die. Stephen Hoffman of the state attorney general's office stated, "Leal's argument is nothing but a transparent attempt to evade his impending punishment." Others pointed out that, as a lifelong resident of the U.S., Leal was not a traveler in a foreign country, and therefore his case was not the type the Vienna Convention was intended to cover.

Sauceda's mother, Rachel Terry, urged Texas to proceed with the execution. "A technicality doesn't give anyone a right to come to this country and rape, torture, and murder anyone," she said in a TV interview.

The U.S. Supreme Court sided with Texas in a 5-4 decision. The court's conservative Justices - Antonin Scalia, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts - were joined by swing Justice Anthony Kennedy. In a jointly-authored or "per curiam" opinion, the majority rejected the White House's request to stay the execution because of the bill in the Senate. "First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unacted legislation. Our task is to rule on what the law is, not what it might eventually be," the Court wrote. Referring frequently to its decisions in the Medellin case, the Court also noted that the Obama administration "studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation ... We decline to follow the United States' suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success."

The four liberal Justices on the Court - Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan - dissented, anticipating that Senator Patrick Leahy's bill could become law by the end of September. "It is difficult to see how the State's interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer," Breyer wrote.

"I've hurt a lot of people," Leal said in his last statement. "I take full blame for everything. I am sorry for what I did. May they forgive me. Let's get this show on the road, Warden." The lethal injection was then started. As the drug was taking effect, Leal shouted twice, "Viva Mexico!" He was pronounced dead at 6:21 p.m.

Huntsville Item

"Texas ignores U.S. protests; Killer of San Antonio teen executed," by Brandon Scott. (Jul 08, 2011)

HUNTSVILLE — Despite warnings from the U.S. government, Texas put to death Mexican national Humberto Leal on Thursday for the 1994 abduction, rape and murder of 16-year-old Adria Saveda of San Antonio.

Leal, an illegal alien who moved to the U.S. as a young child, was denied legal assistance through the Mexican consulate, an issue that incited challenges to his execution and a flurry of requests for a delay. The Obama administration had asked the Supreme Court for a stay, expressing concern for Americans accused of crimes while traveling outside the country, according to the Associated Press.

Preston Parsley, who traveled to Huntsville from San Antonio to protest Thursday's execution, said he wanted to express his opposition to what he believes is an unjust practice by the state. ”Proper procedures weren't followed,” he said. “This put citizens abroad at risk.”

Antonia Mendoza of Houston, who identified herself as Leal's “second aunt,” spent time Thursday evening outside the Huntsville “Walls” Unit — where the death house is located — comforting Leal's mother, Francisca Leal. ”I’m sad at what she must be going through," Mendoza said. “(Humberto) and I haven't been close. We keep in touch since all this through the news and TV."

Leal's uncle Jaime Sanchez, also from Houston, spoke to The Item through a translator. Sanchez said he felt sad and hoped the U.S. Supreme Court would grant his nephew a last-minute stay of execution. I hope they cancel it,” he said while gathered with family on the grounds of the Walls Unit before the execution was carried out. “I hope they give more of a chance to look at the evidence and revise the investigation. They're going to make an error if they execute.”

But Leal was remorseful leading up to his death. Lying strapped to a gurney in the death house, he apologized for his actions and said he wanted Christ in his life. “I’ve hurt a lot of people,” Leal said. “I know Christ has forgiven me, and I accept his forgiveness. I am sorry for the victim’s family for what I did. May they forgive me. Let’s get this show on the road, Warden.” Leal still had one last statement to make before he died, much to the delight of his sister Mary Angel Tello, who wept during the entire process, eventually vomiting while inside the Walls Unit. “Viva Mexico,” Leal said before taking his last breath, and then he shouted, “Viva Mexico.”

Last week, the Obama administration asked the Supreme Court to delay Leal’s execution for up to six months to give Congress time to consider the newly proposed Consular Notification Compliance Act, which would allow federal courts to review cases of foreign offenders to help determine if the lack of consular help makes a difference in the outcome of their cases, the AP reported. This legislation would bring the U.S. into compliance with the Vienna Convention on Consular Relations regarding the arrest of foreign nationals. Congress has twice failed to pass similar legislation.

In a 2004 ruling, the International Court of Justice suggested reviewing these cases as a remedy to its finding that the U.S. had violated the Vienna Convention by not allowing 51 Mexican nationals, including Leal, to request help from their consulate when they were arrested.

Leal’s defense attorneys told the Texas Board of Pardons and Paroles earlier this week that Mexico’s assistance came after it was too late to affect the outcome of Leal’s trial. Two inmates in other states have been moved off death row as a result of the ruling, one in Oklahoma and one in Arkansas, according to public records.

The state, however, argued that the evidence, particularly his own statements and those of his brother, convincingly showed Leal's guilt, Leal’s victim, Saveda, was abducted after attending a party by Leal. Authorities found her nude body near a creek. She had been sodomized with a piece of lumber and her head had been crushed by a 35-pound piece of asphalt. When police arrested Leal, he bore cuts and scratches on his face and body. Evidence also included Saveda’s bloody blouse, found at Leal’s residence.

Seven more executions are scheduled in Texas this year, including four in September within an eight-day time span.

UK Daily Mail

"U.N. official says the U.S. was in breach of international law." (7:23 PM on 8th July 2011)

Executed: Humberto Leal Garcia lost his appeal against execution amid claims he was denied his rights under the Vienna Convention A United Nations official said that the U.S. was in breach of international law when they put Humberto Leal Garcia to death in a prison in Texas last night. The 38-year-old Mexican citizen was executed by lethal injection for raping and bludgeoning Adria Sauceda, 16, to death with a 40-pound chunk of asphalt.

U.N. High Commissioner for Human Rights Navi Pillay said Leal's execution 'raises particular legal concerns', including whether he had access to consular services and a fair trial. Pillay also cited a 2004 International Court of Justice ruling saying the U.S. must review and reconsider the cases of 51 Mexican nationals sentenced to death, including Leal's. He claims this never happened. In his last statement before he died, Leal apologized to the victim's family and asked for their forgiveness, according to MSNBC.

He said: 'I truly am sorry. That is all. Let's get this show on the road. 'One more thing: Viva Mexico, Viva Mexico'

Texas executed Leal despite objections from President Obama's administration that the action would violate international treaty obligations and put U.S. citizens abroad at risk. The high court's 5-4 decision was a setback for the administration.

While there were few who doubted his guilt, Garcia's lawyers said he was not given the chance to contact the Mexican consul which was his right under The Vienna Convention. The White House also fear that his execution could affect U.S. diplomatic interests.

Governor of Texas, Rick Perry, had already rejected appeals to stop the execution from former president George W Bush as well as diplomats, judges, senior military officers and the United Nations. Before the Supreme Court ruling came through a spokesman said the governor had no plans to halt the execution and the Texas Attorney General's office has urged the Supreme Court not to intervene. Leal made the 45-mile trip to the Huntsville Unit of the Texas Department of Criminal Justice from death row at the Polunsky Unit, just outside Livingston.

Appeal: The Obama administration was keen to stop the execution believing it could be detrimental to international relations and affect the treatment of Americans arrested abroad

Prison officials described him as calm. Leal's final meal request included fried chicken, tacos, fried okra and a bowl of pico de gallo. He selected a sister, one of his attorneys and three friends to witness his lethal injection. Also scheduled to witness are two friends of the father of his victim, 16-year-old Adria Sauceda of San Antonio.

Leal was convicted in 1994 of raping the girl before bludgeoning her to death with a '30 to 40-pound' piece of asphalt rock 'roughly twice the size of the victim's skull' in San Antonio Texas. 'There was a gaping hole from the corner of the victim's right eye extending to the centre of her head from which blood was oozing,' court documents read. 'The victim's head was splattered with blood.'

Texas authorities failed to tell Leal, who was born in Mexico and has lived in the U.S. since the age of two, that under the Vienna convention he was entitled to contact the Mexican consulate when he was arrested.

Texas Governor Rick Perry brushed aside appeals from the United Nations and top diplomats to stay Leah's execution Leal's lawyers argued that the lack of consular access played a role in the death penalty being applied because the Mexican national incriminated himself in statements made during 'non-custodial interviews' with the police on the day of the murder. Had Leal been given access to the Mexican consulate it would have been likely to have arranged a lawyer who would have advised the accused man to limit his statements to the police. As it was, the Mexican authorities were never informed of his arrest.

However Texas officials argue that Leal Garcia made statements to authorities before he was in custody and thus outside the purview of the Vienna Convention. State Department spokeswoman Victoria Nuland said the federal government had filed a brief with the U.S. Supreme Court on July 1 supporting Humberto Leal Garcia's bid for a stay of execution until the end of this year.

The UN high commissioner for human rights, Navi Pillay, appealed to Perry to commute Leal's sentence to life imprisonment She said: 'This is to allow some consideration of the fact that Mr. Leal was not afforded a visit by Mexican consular officials at an appropriate moment in the trial proceeding - so to allow that to be taken into account.'

The Obama administration warned that allowing the execution to go forward could have serious repercussions on U.S. foreign relations and implications for Americans arrested abroad. In a letter dated June 28, U.S. Secretary of State Hillary Clinton and Attorney General Eric Holder wrote: 'The United States is best positioned to demand that foreign governments respect consular rights with respect to U.S. citizens abroad when we comply with these same obligations for foreign nationals in the United States.'

A 2004 ruling by the International Court of Justice held that the United States must review Leal Garcia's conviction and sentence to remedy earlier instances in which the Vienna Convention had not been honored in U.S. criminal cases. The top U.N. human rights official last week urged Texas call off Leal Garcia's execution, as have dozens of former U.S. law enforcement officials and ex-diplomats who argue that it would put Americans at risk in prosecutions abroad.

Sandra Babcock, a Northwestern University Law School professor, has been hired by the Mexican government to represent Leal. She points to the fact that, three years ago, the U.S. Supreme Court rejected a similar appeal by a Mexican national convicted in Texas who objected to the lack of consular consultation. She said: 'We have presented substantial evidence that in this case, the Vienna Convention really mattered. 'The fact is that, if Mr. Leal had received the consular assistance that he was entitled to, he never would have been convicted, let alone sentenced to death.' The Texas Court of Criminal Appeals, the state's highest criminal court, rejected Leal's request for a stay of execution. They claimed that Leal 'doesn't have a due process right to remain alive until the proposed legislation becomes law.'

Texas executes more criminals than any other state and that has long caused friction with Mexico, which has no death penalty. Although the U.S. government has signed the Vienna Convention, Congress has not passed a law to implement it.

Reuters News

"U.S. seeks to limit damage of Texas execution case." (WASHINGTON | Fri Jul 8, 2011 6:33pm EDT)

WASHINGTON (Reuters) - The U.S. government is working to limit the diplomatic fallout after Texas executed a Mexican national over Washington's objections that it violated U.S. treaty obligations and put U.S. citizens abroad at risk.

Secretary of State Hillary Clinton was "quite disappointed" on Thursday after Texas went ahead with the execution by injection of Humberto Leal Garcia, convicted of murdering a 16-year-old girl, despite pleas from the federal government for a last-minute stay, State Department spokeswoman Victoria Nuland said. "It's important that our partners overseas know that the U.S. government, the executive branch, was not comfortable with what happened in this case," Nuland said.

"The secretary is making clear to her counterparts, whether they're in Mexico or anywhere else, that we seek to remedy this situation and we seek to remedy it as quickly as we possibly can," Nuland said at a news briefing. Nuland said the Obama administration would work with Congress to speed passage of legislation that would spell out the rights of foreigners to consular access.

The top U.N. official for human rights, Navi Pillay, issued a statement on Friday saying Leal Garcia's execution "places the U.S. in breach of international law." The U.S. Supreme Court rejected a stay of execution despite warnings from the Obama administration that the case violated the Vienna Convention on Consular Relations because Leal Garcia had not been given appropriate consular access.

In legal briefs, the U.S. government had warned the execution would create an irreparable breach of international law and Mexico's government said it would seriously jeopardize cross-border cooperation on joint ventures and extraditions. Leal Garcia, 38, who had lived in the United States since he was an infant, was convicted of raping the girl and bludgeoning her to death with a piece of asphalt in 1994.

While the United States has joined the Vienna Convention, critics have argued that individual U.S. states are not bound by it until Congress passes enabling legislation. Nuland said the State Department was concerned that the case might impact the welfare of U.S. citizens who run into legal problems overseas.

The State Department says some 5 million U.S. citizens live overseas and many millions more travel regularly outside of the country. About 3,500 Americans were arrested overseas in 2010 and U.S. consular officials conducted more than 9,500 prison visits. "Frankly, if we don't protect the rights of non-Americans in the United States we seriously risk reciprocal lack of access to our own citizens overseas," Nuland said. "Texas justice is Texas justice. This is simply about ensuring a non-American facing judicial proceedings in the United States has the same rights that we expect an American facing judicial proceedings overseas would have."

My San Antonio

"UN official: US execution of Leal broke int'l law," by John Halperin. (Friday, July 8, 2011)

GENEVA (AP) — The United States broke international law when it executed a Mexican citizen, the United Nations' top human rights official said Friday. The Texas execution of Humberto Leal "raises particular legal concerns," including whether he had access to consular services and a fair trial, said U.N. High Commissioner for Human Rights Navi Pillay.

Leal was executed Thursday evening for the 1994 rape and murder of a San Antonio teenager after his attorneys, supported also by the Mexican government and other diplomats, unsuccessfully sought a stay.

Mexico's government, President Barack Obama's administration and others wanted the U.S. Supreme Court to stay the execution to allow Congress time to consider legislation that would require court reviews for condemned foreign nationals who aren't offered the help of their consulates. The high court rejected the request 5-4.

Texas Gov. Rick Perry also declined to block the execution. Texas, the nation's most active death penalty state, has executed other condemned foreign nationals who raised similar challenges, most recently in 2008. "Texas is not bound by a foreign court's ruling. The U.S. Supreme Court ruled in 2008 that the treaty was not binding on the states and that the president does not have the authority to order states to review cases of the then 51 foreign nationals on death row in the U.S," said Katherine Cesinger, a spokeswoman for Perry.

But what Texas did also "places the U.S. in breach of international law," said Pillay, who visited Mexico this week. "What the state of Texas has done in this case is imputable in law to the U.S. and engages the United States' international responsibility." Pillay said Perry and the Texas Board of Pardons and Paroles each failed to exercise consular and fair-trial obligations — spelled out under the Vienna Convention on Consular Relations and an International Covenant on Civil and Political Rights — that could have prevented the U.S. from breaching its obligations under international law.

Pillay also cited a 2004 International Court of Justice ruling saying the U.S. must review and reconsider the cases of 51 Mexican nationals — including Leal — who were sentenced to death. She said those reviews never happened. She said the execution undermined "the role of the International Court of Justice, and its ramifications are likely to spread far beyond Texas."

Mexico's foreign ministry has said in a statement it condemns the execution of Leal and has sent a note of protest to the U.S. State Department. It said Mexico's ambassador to the U.S., Arturo Sarukhan, also attempted to contact Perry, who refused to speak on the phone.

Leal, a 38-year-old mechanic, repeatedly apologized and then shouted "Viva Mexico!" as the lethal drugs began taking effect Thursday. He was sentenced to death for killing 16-year-old Adria Sauceda, whose brutalized nude body was found hours after the two left a street party.

My San Antonio

"Texas governor defends Mexican's execution," by Michael Graczyk. (Associated Press Friday, July 8, 2011)

HOUSTON (AP) — Gov. Rick Perry rebuffed criticism Friday from the United Nations and Secretary of State Hillary Clinton for Texas' execution of a Mexican man whose lawyers said he was not informed he could have sought legal help from the Mexican government after he was arrested for the murder of a San Antonio teenager. "If you commit the most heinous of crimes in Texas, you can expect to face the ultimate penalty under our laws," Perry's spokeswoman Katherine Cesinger said a day after convicted killer Humberto Leal was put to death in Huntsville.

In Geneva, the U.N.'s top human rights official said Leal's execution amounted to a breach of international law by the U.S.

The Texas governor has the authority in execution cases to issue a one-time 30-day reprieve, an authority Perry and other governors in the nation's most active capital punishment state rarely have invoked. "After reviewing the totality of the issues that led to Leal's conviction, as well as the numerous court rulings surrounding the case, including the most recent Supreme Court ruling on Thursday, Gov. Perry agreed that Leal was guilty of raping and bludgeoning a 16-year-old girl to death," Cesinger said.

Adria Sauceda was killed in 1994 in a gruesome attack in which her head was bashed with a 30- to 40-pound piece of asphalt and she was raped, strangled, bit and then left nude on a dirt road with a piece of wood stuck in her.

From the Texas death chamber Thursday evening, Leal, 38, took responsibility for the slaying, asked for forgiveness and wrapped up his comments by twice shouting: "Viva Mexico!" He was born in Monterrey, Mexico, and moved with his family to the U.S. when he was about 1½ years old.

Mexico's government, President Barack Obama's administration and the State Department were among those asking the Supreme Court to stop the execution of the former mechanic to allow Congress time to consider legislation that would require court reviews for condemned foreign nationals who weren't offered the help of their consulates. The high court rejected the request 5-4.

"The secretary herself is quite disappointed in the outcome in this case," Clinton's spokeswoman, Victoria Nuland, said Friday. "You know that the U.S. government sought a stay of Leal's execution in order to give the Congress time to act on the Consular Notification Compliance Act, which would have provided Leal the judicial review required by international law. "Frankly if we don't protect the rights of non-Americans in the United States, we seriously risk reciprocal lack of access to our own citizens overseas," Nuland said. "So this is why the secretary is concerned. ... We've got to treat non-Americans properly here if we expect to be able to help our citizens overseas."

U.N. High Commissioner for Human Rights Navi Pillay said the punishment "raises particular legal concerns," including whether Leal had access to consular services and a fair trial. Pillay also cited a 2004 International Court of Justice ruling saying the U.S. must review and reconsider the cases of 51 Mexican nationals sentenced to death, including Leal's. In 2005, President George W. Bush agreed with the ruling but the U.S. Supreme Court later overruled Bush.

"Texas is not bound by a foreign court's ruling," Cesinger said. "The U.S. Supreme Court ruled in 2008 that the treaty was not binding on the states and that the president does not have the authority to order states to review cases of the then 51 foreign nationals on death row in the U.S."

In its ruling Thursday about an hour before Leal's execution, the Supreme Court's majority opinion pointed to the IJC decision, saying it's been seven years since then and three years since the previous Texas death penalty case that raised similar consular legal access issues. If a statute implementing the provisions of the international court ruling "had genuinely been a priority for the political branches, it would have been enacted by now," the majority ruling said.

Had the White House and dissenting justices been worried about "the grave international consequences that will follow from Leal's execution ... Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress," the ruling continued.

Leal's appeals lawyers had pinned their hopes on legislation introduced in the Senate last month that applied to the Vienna Convention provisions and said Leal should have a reprieve so the measure could make its way through the legislative process. Similar bills have failed twice in recent congressional sessions. "Our task is to rule on what the law is, not what it might eventually be," the court said.

ProDeathPenalty.Com

The tragic final hours of sixteen-year-old Adrea Sauceda's life started at an outdoor party in San Antonio, Texas. A witness observed Adria, apparently intoxicated and partially undressed, in the middle of a circle of men who were taking turns "on top of her." Another witness testified that an unidentified male invited him to have intercourse with Adria. The same witness testified that he later observed another man carrying a disoriented Adria to a truck, where he "had his way with her."

Twenty-three-year-old Humberto Leal was also at the party. At some point the intoxicated but conscious victim was placed in Leal's car. Leal and Adria left together in Leal's car. About thirty minutes later, Leal's brother arrived at the party in a car which came to a screeching halt. Leal's brother was very excited or hysterical. Leal's brother started yelling to the people left at the party, "What the hell happened!" Leal's brother was yelling that Leal came home with blood on him saying he had killed a girl. Two of the trial witnesses were present when Leal's brother made these statements. Shortly thereafter Leal's brother left in a rush.

Several of the party members went looking for Adria in the same area where the party was. They found her nude body lying face-up on a dirt road. They noticed Adria's head had been bashed in and it was bleeding. Her head was flinching or jerking. These party members called the police. When the police arrived, they saw the nude victim lying on her back. There was a 30 to 40 pound asphalt rock roughly twice the size of Adria's skull lying partially on Adria's left arm. Blood was underneath this rock. A smaller rock with blood on it was located near Adria's right thigh. There was a gaping hole from the corner of Adria's right eye extending to the center of her head from which blood was oozing. Adria's head was splattered with blood. There was a bloody and broken stick approximately 14 to 16 inches long with a screw at the end of it protruding from Adria's vagina. Another 4 to 5 inch piece of the stick was lying to the left side of Adria's skull. The police made a videotape of the crime scene portions of which were admitted into evidence.

Later that day, the police questioned Leal. Leal gave two voluntary statements. In Leal's first statement he said he was with Adria in his car when she began hitting him and the steering wheel causing him to hit a curb. Leal attempted to calm her down but Adria leaped from Leal's car and ran away. Leal claimed he sat in his car and waited about ten or fifteen minutes to see if Adria would return and when she did not he went home.

After giving this statement, Leal was informed that his brother had also given a statement. Leal then gave another statement. In this statement, Leal claimed he followed Adria when she got out of his car and ran away. Leal claimed Adria attacked him. Leal pushed her and she fell to the ground. When she did not get up Leal attempted to wake her but could not. He then looked at her nose and saw bubbles. Leal stated he got scared, went home, prayed on the side of his mom's bed and told family members what had happened, claiming it was just an accident. After giving this statement an officer gave Leal a ride home.

The police searched Leal's house. The police seized a blouse which contained several blood stains, hair and fibers. This blouse was later identified as belonging to Adria. The police also seized Leal's clothing from the night before. Leal was arrested later that afternoon at his home. Leal's car was also impounded. The police conducted Luminol tests of the passenger door to determine whether any blood was evident. Blood stains were discovered on the passenger door and seat. Detectives testified that the blood stains were streaked in a downward motion, indicating that the blood had been wiped off. There was insufficient residue to conduct a blood typing of the stains on the vehicle. Other DNA evidence was found on the underwear Leal was wearing that night. That evidence consisted of blood as well as bodily fluid. The DNA test did not preclude Adria's blood type from the evidence tested.

Dr. DiMaio, the medical examiner who performed the autopsy, testified about Adria's injuries and cause of death. DiMaio testified that even though Adria was intoxicated when she received her injuries, she would have been aware of what was happening to her. In addition to Adria's massive head injuries, DiMaio testified about injuries Adria received to her chest and shoulder which were consistent with having been inflicted by the stick found in Adria's vagina. DiMaio also testified about the defensive wounds Adria received to her hands trying to protect herself from some object. DiMaio also testified Adria was alive when the stick was placed in her vagina. Adria's neck also contained injuries consistent with manual strangulation. DiMaio testified Adria received some of her injuries while standing up. Adria received her head injuries while lying flat. The injuries to Adria's head were due to blows from the front. These injuries were inconsistent with a fall. Adria's head injuries were consistent with Adria lying on the ground with somebody standing over her striking her. DiMaio testified the large rock could have delivered the injuries to Adria's head. Based on the injuries to Adria's head, DiMaio testified Adria would had to have been struck with the rock two or three times. DiMaio testified Adria died from blunt force trauma injuries to the head. DiMaio could not say for certain that the rock caused the injuries. He testified Adria was beaten about the face with a blunt object or more than one object which could have been the rock or something else.

On cross-examination, DiMaio testified that one blow from the rock could have caused Adria's death. DiMaio also testified about bite marks he found on Adria's left cheek, the right side of her neck and the left side of her chest. Another witness compared the bite marks on Adria's chest and neck with dental impressions of Leal's teeth. They matched. The State's indictment charged that Leal killed Sauceda while in the course of and attempting either to kidnap her or to commit aggravated sexual assault. Leal was convicted and, after a separate punishment phase, sentenced to death.

Ex Parte Leal,Not Reported in S.W.3d, 2011 WL 2581917 (Tex.Crim.App. 2011) (PCR)

FN1. To date, all pleadings concerning this defendant have been filed under the name “Humberto Leal” or “Humberto Leal, Jr.” In this subsequent application, counsel has styled the pleading “Humberto Leal Garcia.” For consistency of our records, the Court will continue to use the designation “Humberto Leal” to refer to the defendant/applicant.

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5.

In July 1995, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Leal v. State, No. AP–72,210 (Tex.Crim.App. Feb. 4, 1998)(not designated for publication).

In September 1997, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. This Court denied applicant relief. Ex parte Leal, No. WR–41,743–01 (Tex.Crim.App. Oct. 20, 1999)(not designated for publication). Applicant filed his first subsequent application in the trial court in March 2005. This Court dismissed that application because it failed to meet the dictates of Article 11.071, § 5. Ex parte Leal, No. WR–41,743–02 (Tex.Crim.App. Mar. 7, 2007)(not designated for publication). This, his second subsequent application, was filed in the trial court on June 23, 2011.

In this application, applicant asserts that (1) he is a Mexican national; (2) his right to consular notification was violated, therefore, the International Court of Justice's decision in the Case Concerning Avena and other Mexican Nationals (Mex.v.U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31), entitles him to a new review of his case; and (3) his imminent execution should be stayed pending passage of legislation regarding procedures on how to implement this review, which legislation is currently pending in Congress. We have reviewed the application and find that applicant has failed to meet the requirements of Article 11.071, § 5. Accordingly, we dismiss his application.

Applicant alternatively argues that we should consider his application under our original habeas jurisdiction or reconsider the claim under one of his previously filed Article 11.071 applications. This we decline to do. Applicant's motion for stay of execution is denied.

IT IS SO ORDERED. PRICE, J., filed a concurring statement in which JOHNSON and ALCALA, JJ., join. KEASLER, J., filed a concurring statement in which MEYERS, J., joins. HERVEY and COCHRAN, JJ., not participating.

PRICE, J., filed a concurring statement in which JOHNSON and ALCALA, JJ., joined.

There is no dispute that allowing the applicant's execution to go forward without first affording him a hearing in satisfaction of the International Court of Justice's judgment in the Avena case,FN1 would violate the United States's treaty obligations under the Vienna Convention on Consular Relations,FN2 the Optional Protocol,FN3 and Article 94 of the United Nations Charter FN4—obligations that are binding on Texas by way of the Supremacy Clause of the United States Constitution.FN5 The United States Supreme Court has acknowledged as much, while holding that the various treaty provisions that bind the United States to comply with an ICJ decision are not self-executing, and thus require legislation for their implementation. FN6 To date, no such legislation has passed. Lamentably, the applicant finds himself in possession of an apparent right under international law without an actual remedy under domestic law.FN7

FN1. Case Concerning Avena and Other Mexican Nationals (Mex.v.U.S.), 2004 I.C.J. 128 (Mar. 31). FN2. Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261. FN3. Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 18, 1961, Art.I, 21 U.S.T. 326, T.I.A.S. No. 6820. FN4. U.N. Charter art. 94, para. 1. FN5. U.S. Const. art. VI, cl. 2. FN6. 552 U.S. 491 (2008). FN7. See Medellin v. Texas, 554 U.S. 759, 763–64 (2008) (Breyer, J., dissenting) (observing that, in earlier Medellin opinion, “this Court, while recognizing that the United States was bound by treaty to follow the ICJ's determination as a matter of international law, held that that determination did not automatically bind the courts of the United States as a matter of domestic law.”).

To satisfy the requirements of Article 11.071, Section 5(a)(1), FN8 justifying a subsequent application for writ of habeas corpus and a stay of execution, the applicant invokes proposed legislation that was introduced two weeks ago in Congress that would obligate the federal courts (but not state courts) to conduct the kind of hearing that the Avena case mandates before he may be executed consistent with our treaty obligations. Though this is apparently the third time implementing legislation has been introduced in Congress, the applicant's experts assure us that the current bill enjoys widespread bipartisan support as well as the support of the Executive Branch. Even so, the legislative process being what it is, the bill is not likely to pass until the end of this calendar year at the earliest. I agree with the Court that pending legislation constitutes neither new law nor new facts—at least not new facts entitling the applicant to relief—in contemplation of Article 11.071, Section 5(a)(1). FN8. Tex.Code Crim. Proc. art. 11.071, § 5(a)(1).

The applicant asks us, alternatively, to treat his application as an original writ application, unhindered by the restraints of Article 11.071. But the application seeks relief from a capital conviction and/or punishment, and it is my understanding that “Article 11.071 presently provides the exclusive procedure for the exercise of this Court's original habeas jurisdiction when the applicant seeks relief from a judgment imposing a penalty of death.” FN9 Nor does the nascent legislation create a compelling enough reason to reopen the applicant's initial writ application, as we did in Ex parte Moreno.FN10 In my view, the applicant currently lacks a basis for a remedy in our state courts in Texas.

FN9. Ex parte Alba, 256 S.W.3d 682, 698 (Tex.Crim.App.2008) (Price, J., dissenting). FN10. 245 S.W.3d 419, 428–29 (Tex.Crim.App.2008). This does not mean he lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. FN11 And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant's execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant's right under international law. FN12 By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass.FN13 In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do.FN14 FN11. Tex. Const. art. 4, § 11. FN12. Id. FN13. Id. FN14. See Medellin v. Texas, supra, at 536 (Stevens, J., concurring) (“One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas' duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy.”).

With these comments, I regretfully concur in the Court's order.

KEASLER, J., filed a concurring statement in which MEYERS, J., joined.

I join in the Court's decision to deny Humberto Leal's application to stay his execution scheduled for Thursday, July, 7, 2011, and to dismiss his second subsequent application under Texas Code of Criminal Procedure Article 11.071 Section 5.

In his application for a stay of execution and application for habeas relief Leal raises three basic points. First, he argues that the Consular Compliance Act, which has been introduced in the United States House by Senator Patrick Leahy, would require that Leal receive review and reconsideration of his conviction and sentence under the International Court of Justice's (ICJ's) Avena decision. And second, Leal contends that he is entitled to habeas review because the Inter–American Commission on Human Rights (IACHR) has concluded that Leal's case was prejudiced by the Vienna Convention Violation. We have previously determined that analogous arguments did not meet the requirements of Section when they were raised by Jose Ernesto Medellin in his second subsequent state application for a writ of habeas corpus.

Pending legislation is not the law, and any argument that the Consular Compliance Act will be passed by Congress and signed into law by the President is purely speculative. We are bound to follow the law as it is and, at this time, there is nothing that makes the Avena decision binding law.FN1 Next, Leal cites no authority and fails to explain how the IACHR's determination is binding on this Court or any other court in the United States.

FN1. See Medellin v. Texas, 554 U.S. 759, 759–760 (2008) (denying request for stay of execution because the possibility that the Congress or Texas Legislature would pass legislation giving effect to Avena was “too remote to justify an order from this Court staying the sentence imposed by the Texas courts.”); Foster v. Neilson, 27 U.S. 253, 315 (1829) (“Until such act shall be passed, the Court is not at liberty to disregard the existing laws on the subject.”). Leal also complains that his execution would violate his right to free speech and to petition Congress to enforce Avena. But Leal has not established that his execution, pursuant to a valid death sentence, presents an unreasonable restriction on these rights. Because the “Consular Compliance Act” is not the law, it cannot legitimately be used as support for this argument. In this instance, the State's right to finality trumps the rights Leal asserts.

There is nothing in the United States Constitution that prohibits the State from proceeding with Leal's execution. Leal has failed to show that his current claims meet the requirements of Section 5.FN2 As a result, I agree with denial of his motion to stay and the dismissal of Leal's second subsequent habeas application. FN2. See e.g., Ex parte Medellin, 223 S.W.3d 315, 349–52 (Tex.Crim.App.2006).

Leal v. Dretke, 428 F.3d 543 (5th Cir. 2005) (Habeas)

Background: State prisoner who was convicted of murder and sentenced to death petitioned for writ of habeas corpus. The United States District Court for the Western District of Texas, W. Royal Furgeson, Jr., J., denied the petition. Petitioner sought a certificate of appealability (COA).

Holdings: The Court of Appeals, Emilio M. Garza, Circuit Judge, held that: (1) petitioner was not entitled to COA on claim that counsel was ineffective for failing adequately to investigate and contest state's DNA evidence; (2) petitioner was not entitled to COA on claim that counsel was ineffective for failing to challenge state's luminol evidence; (3) petitioner was not entitled to COA on claim that counsel was ineffective for failing to challenge state's evidence that bite marks on victim's body matched defendant's teeth; (4) petitioner was not entitled to COA on claim that counsel was ineffective for failing to call members of defendant's family to testify; (5) petitioner was not entitled to COA on claim that counsel was ineffective for failing to present certain physical evidence; and (6) petitioner was not entitled to COA on claim that he was prejudiced, as required to establish an ineffective assistance of counsel claim, from counsel's cumulative errors. Application for certificate of appealability denied.

EMILIO M. GARZA, Circuit Judge:

Convicted of capital murder and sentenced to death, Humberto Leal, Jr. petitions for a Certificate of Appealability (“COA”) from the denial of his petition for federal habeas corpus relief. Leal claims that his trial counsel rendered ineffective assistance and that the Texas capital sentencing scheme's special issues are unconstitutionally vague.

I

The tragic final hours of sixteen-year-old Adrea Sauceda's life started at an outdoor party in San Antonio, Texas. A witness observed Sauceda, apparently intoxicated and partially undressed, in the middle of a circle of men who were taking turns “on top of her.” Another witness testified that an unidentified male invited him to have intercourse with Sauceda. The same witness testified that he later observed another man carrying a disoriented Sauceda to a truck, where he “had his way with her.” On direct appeal, the Texas Court of Criminal Appeals summarized the evidence of the events that followed:

The twenty-three-year-old appellant [Leal] was also at the party. At some point the intoxicated but conscious victim was placed in appellant's car. Appellant and the victim left together in appellant's car.

About thirty minutes later, appellant's brother arrived at the party in a car which came to a screeching halt. Appellant's brother was very excited or hysterical. Appellant's brother started yelling to the people left at the party, “What the hell happened!” Appellant's brother was yelling that appellant came home with blood on him saying he had killed a girl. Witnesses Torres and Ortega were present when appellant's brother made these statements. Shortly thereafter appellant's brother left in a rush.

Several of the party members went looking for the victim in the same area where the party was. They found her nude body lying face-up on a dirt road. They noticed the victim's head had been bashed in and it was bleeding. Her head was flinching or jerking. These party members called the police.

When the police arrived, they saw the nude victim lying on her back. There was a 30 to 40 pound asphalt rock roughly twice the size of the victim's skull lying partially on the victim's left arm. Blood was underneath this rock. A smaller rock with blood on it was located near the victim's right thigh. There was a gaping hole from the corner of the victim's right eye extending to the center of her head from which blood was oozing. The victim's head was splattered with blood. There was a bloody and broken stick approximately 14 to 16 inches long with a screw at the end of it protruding from the victim's vagina. Another 4 to 5 inch piece of the stick was lying to the left side of the victim's skull. The police made a videotape of the crime scene portions of which were admitted into evidence.

Later that day, the police questioned appellant. Appellant gave two voluntary statements. In appellant's first statement he said he was with the victim in his car when she began hitting him and the steering wheel causing him to hit a curb. Appellant attempted to calm her down but the victim leaped from appellant's car and ran away. Appellant claimed he sat in his car and waited about ten or fifteen minutes to see if the victim would return and when she did not he went home.

After giving this statement, appellant was informed that his brother had also given a statement. Appellant then gave another statement. In this statement, appellant claimed he followed the victim when she got out of his car and ran away. Appellant claimed the victim attacked him. Appellant pushed her and she fell to the ground. When she did not get up appellant attempted to wake her but could not. He then looked at her nose and saw bubbles. Appellant stated he got scared, went home, prayed on the side of his mom's bed and told family members what had happened, claiming it was just an accident. After giving this statement an officer gave appellant a ride home.

The police searched appellant's house. The police seized a blouse which contained several blood stains, hair and fibers. This blouse was later identified as belonging to the victim. The police also seized appellant's clothing from the night before. Appellant was arrested later that afternoon at his home. Appellant's car was also impounded. The police conducted Luminol tests of the passenger door to determine whether any blood was evident. Blood stains were discovered on the passenger door and seat. Detectives testified that the blood stains were streaked in a downward motion, indicating that the blood had been wiped off. There was insufficient residue to conduct a blood typing of the stains on the vehicle. Other DNA evidence was found on the underwear appellant was wearing that night. That evidence consisted of blood as well as bodily fluid. The DNA test did not preclude the victim's blood type from the evidence tested.

Dr. DiMaio, the medical examiner who performed the autopsy, testified about the victim's injuries and cause of death. DiMaio testified that even though the victim was intoxicated when she received her injuries, she would have been aware of what was happening to her. In addition to the victim's massive head injuries, DiMaio testified about injuries the victim received to her chest and shoulder which were consistent with having been inflicted by the stick found in the victim's vagina. DiMaio also testified about the defensive wounds the victim received to her hands trying to protect herself from some object. DiMaio also testified the victim was alive when the stick was placed in her vagina. The victim's neck also contained injuries consistent with manual strangulation.

DiMaio testified the victim received some of her injuries while standing up. The victim received her head injuries while lying flat. The injuries to the victim's head were due to blows from the front. These injuries were inconsistent with a fall. The victim's head injuries were consistent with the victim lying on the ground with somebody standing over her striking her. DiMaio testified the large rock could have delivered the injuries to the victim's head. Based on the injuries to the victim's head, DiMaio testified the victim would had to have been struck with the rock two or three times. DiMaio testified the victim died from blunt force trauma injuries to the head. DiMaio could not say for certain that the rock caused the injuries. He testified the victim was beaten about the face with a blunt object or more than one object which could have been the rock or something else. On cross-examination, DiMaio testified that one blow from the rock could have caused the victim's death. DiMaio also testified about bite marks he found on the victim's left cheek, the right side of her neck and the left side of her chest. Another witness compared the bite marks on the victim's chest and neck with dental impressions of appellant's teeth. They matched.

The State's indictment charged that Leal killed Sauceda while in the course of and attempting either to kidnap her or to commit aggravated sexual assault. Leal was convicted and, after a separate punishment phase, sentenced to death. The Texas Court of Criminal Appeals affirmed Leal's conviction and sentence on direct appeal. After conducting an evidentiary hearing, the trial court recommended that Leal's application for habeas relief be denied, and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal's petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA.

II

To obtain a COA, Leal must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case “any doubts as to whether a COA should issue must be resolved in [the petitioner's] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)).

In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). A district court may grant habeas relief only if it determines that the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1), (2). The state court's findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

III

Leal argues that the state and federal habeas courts failed to consider his counsel'sFN1 duty to investigate and the cumulative effect of counsel's deficiencies. He does not, however, explain for which of his ineffective assistance claims he seeks a COA. We limit our consideration to those claims that Leal briefed in at least some appreciable manner: counsel's failure to (1) adequately investigate and contest the State's DNA evidence; (2) challenge the State's luminol evidence; (3) challenge the State's evidence regarding bite marks on Sauceda's body; (4) investigate and present the testimony of Leal's family members; and (5) present certain physical evidence. See Martin v. Cain, 246 F.3d 471, 475 n. 1 (5th Cir.2001) (refusing to consider claims not briefed even though the petitioner requested a COA with respect to the “full range” of his ineffective assistance claims). FN1. Attorneys Vincent D. Callahan and Jose M. Guerrero represented Leal at trial. Callahan had both trial and appellate experience in capital cases.

To establish ineffective assistance of counsel, Leal must demonstrate both that his counsel's performance was deficient and that the deficiency prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show deficient performance, Leal must demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Performance is prejudicial only if, but for counsel's errors, there is a reasonable probability that the final result would have been different and confidence in the reliability of the verdict has been undermined. Little v. Johnson, 162 F.3d 855, 860-61 (5th Cir.1998). Failure to prove either prong will defeat an ineffective assistance claim. Green v. Johnson, 160 F.3d 1029, 1035 (5th Cir.1998). We begin with the presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. See Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052.

A

The State presented expert testimony at trial that blood found on Leal's underwear could have come from Sauceda, but could not have come from either Leal or his girlfriend. Leal petitioned for habeas corpus relief on the ground that his counsel failed to: (1) request the appointment of a DNA expert; (2) interview before trial or question on voir dire the prosecution's DNA experts; and (3) adequately cross-examine the State's experts.

The state habeas court found that Leal gave his trial counsel differing versions of the relevant events, including one in which Leal admitted that he had unintentionally caused Sauceda's death and then sat down on top of her while attempting to revive her. The court held that, in light of Leal's statements, trial counsel's decision not to further contest the prosecution's DNA evidence did not constitute ineffective assistance. The court further held that Leal had failed to satisfy the prejudice prong of Strickland. Applying the AEDPA standard, the federal district court concluded that the state court's application of both prongs of the Strickland test was objectively reasonable.

Reasonable jurists could not debate the district court's conclusion that the state court was objectively reasonable in holding that Leal failed to satisfy Strickland's prejudice prong. Leal's DNA expert, Dr. Tryon, testified that the DNA results obtained from the examination of Leal's underwear, while consistent with Sauceda's blood, were not definitive. The court found that the expert's testimony was not inconsistent with the trial testimony of the State's DNA experts. As the district court noted, while Dr. Tryon questioned the State's testing procedures and the definitiveness of the results, the testimony did not show that the appointment of a DNA expert, or pre-trial interview or voir dire questioning of the State's witnesses, would likely have resulted in either the development of exculpatory evidence or the exclusion of State evidence. Further, any arguable weakening of the State's DNA evidence resulting from testimony questioning the testing procedures must be viewed in light of the totality of the evidence the State produced at trial. See United States v. Royal, 972 F.2d 643, 651 (5th Cir.1992) (holding that overwhelming evidence of guilt supported conclusion that defendant had not been prejudiced by counsel's performance). After reviewing Dr. Tryon's testimony and the trial record, we are convinced that reasonable jurists could not debate the district court's conclusion that, in light of the evidence produced at trial, the state court's conclusion that Leal failed to satisfy the prejudice prong of Strickland was objectively reasonable.FN2

FN2. Because we conclude that reasonable jurists could not debate the district court's conclusion that Leal failed to demonstrate prejudice, we do not reach Leal's claim of deficient performance. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 (“[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.”). We therefore need not address Leal's argument that the state court's ineffective assistance analysis failed to consider defense counsel's duty to conduct adequate investigation.

B

San Antonio Police Officer Warren Titus testified at Leal's trial that testing of the interior of Leal's car indicated the presence of blood in several locations in a manner consistent with someone being seated when the blood was transferred. The state habeas court found that prosecutors relied on the luminol results as evidence that Leal kidnaped Sauceda. Leal, in turn, testified that his father had used the car to go deer hunting and that this fact might explain the presence of blood in the vehicle. Leal argues that his counsel provided ineffective assistance by failing to: (1) cross-examine Titus; (2) interview Titus before trial or conduct a voir dire examination; or (3) seek appointment of a defense expert on the issue.

At the state habeas corpus hearing, Leal questioned Titus on his understanding of luminol testing. Titus testified that, at the time of the habeas hearing, he had conducted at least a dozen luminol tests on vehicles. Responding to questions from Leal, Titus testified that he was aware that luminol was only a presumptive test, but was unsure whether luminol reacted with the hemoglobin in blood or reacted better with fresh or decomposed blood. He testified that luminol could react with substances other than blood, but explained that time-lapse photography could establish whether luminol was reacting to blood or a substance such as bleach. Finally, Titus testified that he did not know whether luminol reacted with animal blood. The state habeas court found that Leal had not presented any evidence that his father had recently killed a deer or placed a dead animal in the car, the car was tested only days after the murder, deer hunting was not lawful in South Texas in the Spring (the murder having occurred in May), and Leal gave his counsel varying accounts of his time with Sauceda, including one in which Leal admitted that there had been a struggle inside the car. The court concluded that counsel's actions did not constitute ineffective assistance and that Leal had failed to demonstrate prejudice. The district court concluded that the state court had reasonably applied both prongs of the Strickland test.

Reasonable jurists could not debate the district court's determination. Leal introduced no evidence that interviewing Titus prior to trial or cross-examination during trial would have produced evidence suggesting that Titus performed the luminol tests in an unreliable manner or that Titus's testimony was misleading. Leal's claim that effective counsel might have been able to exclude Titus's testimony based on his testimony at the habeas hearing is wholly unsubstantiated. Leal also presented the state habeas court with no new expert testimony or other evidence suggesting that a court-appointed defense expert would have benefitted Leal at trial.

C

The State also introduced evidence during the guilt phase of Leal's trial that bite marks on Sauceda's body matched Leal's teeth. Leal sought habeas corpus relief on the ground that his trial counsel rendered ineffective assistance by failing to interview the State's expert regarding the bite-mark evidence and by failing to seek appointment of a defense expert on the issue. The state habeas court found that one of Leal's counsel consulted with a dentist, Dr. Jose Aguirre, concerning the bite-mark evidence and that the dentist's conclusions were consistent with those of the State's dental expert. The court concluded that counsel's performance was not deficient and that Leal had not demonstrated prejudice. The federal habeas court found objectively reasonable the state court's application of both prongs of the Strickland test.

Reasonable jurists could not debate the district court's holding with regard to the performance prong of Leal's Strickland claim. Leal's claim that his counsel failed to conduct any investigation prior to trial is, particularly with respect to this claim, insupportable in light of the record. Leal's counsel consulted a dentist regarding the bite marks on Sauceda's body and the State expert's conclusions, and effectively cross-examined the State's expert on the bite-mark evidence. Leal introduced no evidence at the state habeas hearing showing that Dr. Aguirre was unqualified to render an opinion regarding the bite marks found on Sauceda's body. To the contrary, Leal's expert testified during the state habeas hearing that every dentist is competent to give an opinion regarding bite marks. In light of Dr. Aguirre's conclusion, reasonable jurists could not debate the conclusion that the state court reasonably applied federal law in determining that trial counsel's actions did not fall to the level of deficient performance.

D

Leal alleges that his counsel provided ineffective assistance in not calling members of his family to testify. Specifically, Leal argues his counsel should have called his brother, Gaulberto, and sister, Nancy Leal Sanchez, to testify that they saw other party-goers with blood stains on their clothes and in possession of Sauceda's purse. He also argues counsel should have called his father, Humberto Leal, Sr., to testify that he found Sauceda's blouse outside their home after the murder and mistakenly thought it belonged to a family member (thus explaining its presence in the Leal home), that he saw no blood on the car the morning after the murder, and that he used the car for deer hunting. Finally, Leal claims his counsel should have called his mother, Maria Francesca Garcia de Leal, to corroborate his father's story regarding the blouse.

All four family members testified at the state habeas proceeding. The court found Nancy Leal Sanchez's testimony not credible based on discrepancies in her affidavit and testimony, and that none of the family members had told Leal's counsel about other men at the party having blood on their clothes. The court concluded that Leal had not satisfied the prejudice prong of Strickland. The federal habeas court found the state court's conclusion objectively reasonable.

After reviewing the testimony at the state habeas hearing, we find that reasonable jurists could not debate the district court's resolution of this issue. As the district court noted, had Nancy testified at [Leal's] trial in the same manner that she testified at [his] state habeas corpus hearing, an astute prosecutor could have used her testimony to further inculpate [Leal]. Furthermore, Gualberto's affidavit, introduced and admitted into evidence during [Leal's] state habeas corpus proceeding, would have furnished the prosecution with further evidence to impeach Gualberto's claims that [Leal] never confessed to having killed a girl.

Further, Leal's parents' testimony regarding Sauceda's blouse fails to explain how Sauceda's blouse came to be in front of the Leal home, given Leal's testimony that he left Sauceda unconscious and fully-clothed blocks from his home. Finally, Leal presented no evidence that his father had recently placed a dead animal in the car, or that his father had cleaned any animal blood from the interior of the car. In light of the other evidence introduced at trial, reasonable jurists could not debate the court's conclusion that “[t]here is simply no reasonable probability that, but for the failure [to call Leal's family members,] the outcome of either phase of petitioner's trial would have been any different.”

E

Leal next argues that his trial counsel rendered ineffective assistance by failing to present available evidence showing that: (1) no fingerprints could be obtained from the stick that was inserted in Sauceda's vagina; (2) no spermatozoa cells were found on an anal swab taken during Sauceda's autopsy; and (3) pubic and head hair found on Sauceda's body did not match Leal.

The state court concluded that Leal had failed to demonstrate ineffective assistance of counsel, and the federal district court found this holding an objectively reasonable application of Strickland. The federal court noted that Leal had not alleged any specific facts showing that the absence of fingerprints was exculpatory or mitigating in nature and found that, given the overwhelming evidence of Leal's guilt, there was no reasonable probability that the absence of identifiable fingerprints would have any impact at either phase of Leal's trial. The court also observed that Texas Department of Public Safety serologist Donna Stanley had testified at Leal's trial that, when she examined the anal swabs under a microscope, she was unable to identify any sperm cells. Finally, with regard to the hair found on Sauceda, the court noted that Leal offered the state habeas court no evidence that any subsequent examination, identification, or comparison of the hairs was undertaken by any person. The district court also correctly observed that the hair found on Sauceda, even if Leal could show it came from one of the other party-goers, is consistent with the evidence presented at trial that other men had engaged in or attempted intercourse with Sauceda at the party. Thus, the court reasoned, Leal had not demonstrated any possible benefit would have resulted had his trial counsel further investigated the hair evidence. Reasonable jurists could not debate the conclusion that these alleged deficiencies do not satisfy the prejudice prong of Strickland.

F

Leal further requests a COA on his claim that the cumulative errors of his trial counsel denied him his Sixth Amendment right to counsel, arguing that the state and federal habeas courts failed to consider the prejudice resulting from his counsel's alleged deficiencies globally rather than in isolation. Contrary to Leal's claim, both the state habeas court and federal district court considered and rejected his argument that “the totality of the circumstances in Mr. Leal's case reveals that both prongs of the Strickland test were met.”

Even assuming that Leal has satisfied Strickland's deficient performance prong with respect to all the above-analyzed claims save the dental evidence, reasonable jurists could not debate the district court's determination that the state court rejection of Leal's claim was objectively reasonable. The prosecution's evidence at the guilt phase of Leal's trial was overwhelming. Leal was the last person seen with Sauceda before her death, driving her away in his father's car. A State witness testified that Leal claimed that he knew Sauceda and her family and would take her home and explain things to her family. Sauceda's nude, bloodied body was found shortly after Leal's brother and sister made a frantic appearance at the party, with Leal's brother stating that Leal had claimed to have killed a girl. Leal admitted to police that he fought with Sauceda and pushed her down, that she fell and did not get up, and that he abandoned her while she was unconscious and bleeding from the head. Forensic dental evidence strongly suggested that Leal had bitten Sauceda's body. The autopsy revealed massive injuries inconsistent with Leal's version of events and suggesting a deliberate and violent assault. Sauceda's state of undress and the stick inserted into her vagina obviously indicate that she was the victim of a sexual assault. Luminol testing suggested that blood had been wiped from inside Leal's car and was consistent with a person sitting in the passenger seat. Sauceda's blouse was found in Leal's home, and DNA evidence suggested that blood found on Leal's underwear could have come from Sauceda, but not from Leal or his girlfriend. The evidence of prejudice Leal produced at his state habeas hearing is simply insufficient to make debatable the district court's refusal to grant federal habeas relief.

IV

In addition to his ineffective assistance of counsel claims, Leal also argues that the Texas capital sentencing scheme's special issues are unconstitutionally vague because they fail to define certain words and phrases, including “probability,” “criminal acts of violence,” and “continuing threat to society.” The state habeas court found this claim had previously been addressed in Leal's direct appeal, and was therefore not cognizable in a post-conviction petition for writ of habeas corpus. The court also noted that Leal's argument conflicted with clearly established state and federal law. The federal district court concluded that Leal's argument was foreclosed by Supreme Court and Fifth Circuit precedent, and was also foreclosed by the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

This court has already rejected the arguments Leal makes regarding the terms employed in the Texas capital sentencing scheme. See Hughes, 191 F.3d at 615 (holding that the term “probability,” as used in the Texas capital sentencing special issues, does not require definition); West v. Johnson, 92 F.3d 1385, 1406 (5th Cir.1996) (rejecting claim that the Texas capital sentencing scheme special issues work as aggravating factors and therefore require detailed definitions of the terms employed therein); Woods v. Johnson, 75 F.3d 1017, 1033-34 (5th Cir.1996) (rejecting argument that the terms used in the special issues are “aggravating factors” and unconstitutionally vague absent definition); James v. Collins, 987 F.2d 1116, 1120 (5th Cir.1993) (holding that the terms “deliberately,” “probability,” “criminal acts of violence,” and “continuing threat to society,” “have a common-sense core of meaning that criminal juries should be capable of understanding”) (citation omitted); Milton v. Procunier, 744 F.2d 1091, 1095-96 (5th Cir.1984) (“deliberately,” “probability,” and “criminal acts of violence” “have a plain meaning of sufficient content that the discretion left to the jury” is “no more than that inherent in the jury system itself”). Reasonable jurists could not find the district court's resolution of this issue debatable.

V

For the above stated reasons, Leal's application for a COA is DENIED. U.S.,2011

Garcia v. Texas, --- S.Ct. ----, 2011 WL 2651245 (2011) (Stay)

Background: Following affirmance of petitioner's capital murder conviction, the Court of Criminal Appeals of Texas, 2011 WL 2581917, denied petitioner's application for post-conviction relief and motion for stay of execution. The United States District Court for the Western District of Texas, ___ F.Supp.2d ____, 2011 WL 2479912, also denied petitioner habeas relief and a stay of execution. The United States Court of Appeals for the Fifth Circuit, 2011 WL 2582880, denied petitioner's request for a certificate of appealability (COA), but granted him leave to proceed in forma pauperis (IFP). Petitioner then filed for writ of certiorari and stay of execution to the Supreme Court.

Holding: The Supreme Court held that stay of execution was not warranted in light of proposed legislation. Applications for stay denied; petition for writ of habeas corpus denied.Justice Breyer filed a dissenting opinion in which Justice Ginsburg, Justice Sotomayor, and Justice Kagan joined.

Petitioner Humberto Leal Garcia (Leal) is a Mexican national who has lived in the United States since before the age of two. In 1994, he kidnaped 16–year–old Adria Sauceda, raped her with a large stick, and bludgeoned her to death with a piece of asphalt. He was convicted of mur der and sentenced to death by a Texas court. He now seeks a stay of execution on the ground that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820. He relies on Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I.C.J. 12 (Judgment of Mar. 31), in which the International Court of Justice (ICJ) held that the United States had violated the Vienna Convention by failing to notify him of his right to consular assistance. His ar gument is foreclosed by Medellín v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ( Medellín I), in which we held that neither the Avena decision nor the President's Memorandum purport ing to implement that decision constituted directly en forceable federal law. 552 U.S., at 498–499, 128 S.Ct. 1346.

Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legisla tion implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday author ize a collateral attack on that judgment.

The United States does not endorse Leal's due process claim. Instead, it asks us to stay the execution until January 2012 in support of our “future jurisdiction to review the judgment in a proceeding” under this yet-to-be enacted legislation. Brief for United States as Amicus Curiae 2–3, n. 1. It relies on the fact that on June 14, 2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch's sup port. No implementing legislation has been introduced in the House.

We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of Medellín I, it is clear that there is no “fair prospect that a majority of the Court will conclude that the decision below was erroneous,” O'Brien v. O'Laughlin, 557 U.S. ––––, ––––, 130 S.Ct. 5, 174 L.Ed.2d 602 (2009) (slip op., at 2) (BREYER, J., in chambers), and our task should be at an end. Neither the United States nor Justice BREYER, post, at –––– – –––– (dissenting opinion), cites a single instance in this Court's history in which a stay issued under analogous circumstances.

Even if there were circumstances under which a stay could issue in light of proposed legislation, this case would not present them. Medellín himself sought a stay of exe cution on the ground that Congress might enact imple menting legislation. We denied his stay application, ex plaining that “Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in [Medellín I].” Medellín v. Texas, 554 U.S. 759, 760, 129 S.Ct. 360, 171 L.Ed.2d 833 (2008) (per curiam) (Medellín II). It has now been seven years since the ICJ ruling and three years since our decision in Medellín I, making a stay based on the bare introduction of a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a prior ity for the political branches, it would have been enacted by now.

The United States and JUSTICE BREYER complain of the grave international consequences that will follow from Leal's execution. Post, at ––––. Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an “appeal of the President,” post, at ––––, presenting free-ranging assertions of foreign policy consequences, when those assertions come unac companied by a persuasive legal claim.

Finally, we noted in Medellín II that “[t]he beginning premise for any stay ... must be that petitioner's confes sion was obtained unlawfully,” and that “[t]he United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access.” 554 U.S., at 760, 129 S.Ct. 360. Here, the United States studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation, contending instead that the Court should issue a stay simply in light of the possibility that Leal might be able to bring a Vienna Convention claim in federal court, regardless of whether his conviction will be found to be invalid. We decline to follow the United States' suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success. We may note that in a portion of its opinion vacated by the Fifth Circuit on procedural grounds, the District Court found that any violation of the Vienna Convention would have been harmless. Leal v. Quarterman, 2007 WL 4521519, *7 (W.D.Tex.), vacated in part sub nom. Leal Garcia v. Quarterman, 573 F.3d 214, 224–225 (2009).

The applications for stay of execution presented to JUSTICE SCALIA and by him referred to the Court are denied. The petition for a writ of habeas corpus is denied.*

It is so ordered. *The United States' motion for leave to file an amicus brief is granted.

Justice BREYER, with whom Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join, dissenting.

The petitioner, Humberto Leal Garcia (Leal), convicted 16 years ago of capital murder, is scheduled to be executed this evening. He asks this Court to stay his execution pending resolution of his petitions for writs of certiorari and habeas corpus. I would grant the applications and stay the execution.

As the Solicitor General points out, Leal's execution at this time “would place the United States in irreparable breach” of its “obligation[s]” under international law. Brief for United States as Amicus Curiae 1 (hereinafter U.S. Brief); see also id., at 11–13, 26, 30. The United States has signed and ratified the Vienna Convention, a treaty under which the United States has promised, among other things, to inform an arrested foreign national, such as Leal, that he has a right to request the assistance of his country's consulate. Vienna Convention on Consular Relations (Vienna Convention), Art. 36, Apr. 24, 1963, 21 U.S.T. 77, 100–101, T.I.A.S. No. 6820. The United States has also signed and ratified an optional protocol, a treaty in which the United States agrees that “[d] isputes arising out of the interpretation of application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” Optional Protocol Concerning the Compulsory Settlement of Disputes (Optional Protocol), Art. I, Apr. 24, 1963, 21 U.S.T. 325, 326, T.I.A.S. No. 6820. Although the United States has since given notice of withdrawal from the Optional Protocol, see Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan, Secretary–General of the United Nations (Mar. 7, 2005), that withdrawal does not alter the binding status of its prewithdrawal obligations, see U.S. Brief 22, n. 4.

When officials of the State of Texas arrested Leal, they failed to inform him of his Vienna Convention rights, thereby placing the United States in violation of its obligations under that Convention. And so far neither Texas nor any other judicial authority has implemented what the International Court of Justice found (in a related case brought by the Government of Mexico) to be the proper remedy for that Convention violation, namely a hearing to determine whether that violation amounted in effect to harmless error. Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12, 61–64. See also U.S. Brief 15 (explaining that “President Bush acknowledged the international legal obligation created by Avena”). In other words, the international court made clear that Leal is entitled to a certain procedure, namely a hearing. That being so, a domestic court's guesses as to the results of that procedure are, as far as our treaty obligations are concerned, irrelevant.

This Court subsequently held that, because Congress had not embodied our international legal obligations in a statute, the Court lacked the power to enforce those obligations as a matter of domestic law. Medellín v. Texas, 552 U.S. 491, 525–526, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (“The responsibility for transforming an international obligation arising from a non-self-executing treaty into domestic law falls to Congress”). And the Court later refused to grant a stay of execution in a similar case in significant part because “the President ... has [not] represented to us that there is any likelihood of congressional ... action.” Medellín v. Texas, 554 U.S. 759, 759–760, 129 S.Ct. 360, 171 L.Ed.2d 833 (2008) (per curiam).

But these applications for stay do not suffer from this last mentioned legal defect. The Solicitor General has filed an amicus brief in which he states that “after extensive consultation with the Department of State and the Department of Justice,” Senator Patrick Leahy, the chairman of the Senate Committee on the Judiciary, has introduced (and expressed an intention to hold speedy hearings on) a bill that would permit Leal and other similarly situated individuals to obtain the hearing that international law requires. U.S. Brief 8; see id., at 8–9, 12–13 (describing the Consular Notification Compliance Act of 2011, S. 1194, 112th Cong., 1st Sess.). The amicus brief indicates that “congressional ... action” is a reasonable possibility. Medellín, 554 U. S., at 760, 129 S.Ct. 360. And the Solicitor General urges this Court to grant a stay, providing Congress with adequate time to carry out the legal responsibility that this Court has held belongs to the Legislative Branch, Medellín v. Texas, 552 U.S. 491, 525–526, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008), namely the enactment of a law that will bring the United States into compliance with its treaty obligations and provide Leal with the hearing that those obligations legally demand. U.S. Brief 2.

At the same time, the Solicitor General sets forth strong reasons, related to the conduct of foreign affairs, for granting a stay. Representing the Executive Branch (hence the President), the Solicitor General tells us that “[p]etitioner's execution would cause irreparable harm” to “foreign-policy interests of the highest order.” Id., at 11. The Solicitor General says that failing to halt Leal's execution would place “the United States in irremediable breach of its international-law obligation,” with “serious repercussions for United States foreign relations, law-enforcement and other cooperation with Mexico, and the ability of American citizens traveling abroad to have the benefits of consular assistance in the event of detention.” Id., at 12.

These statements are supported by the fact that the Government of Mexico has also filed a brief in which it states that declining to stay Leal's imminent execution “would seriously jeopardize the ability of the Government of Mexico to continue working collaboratively with the United States on a number of joint ventures, including extraditions, mutual judicial assistance, and our efforts to strengthen our common border.” Brief for United Mexican States as Amicus Curiae 23 (internal quotation marks omitted).

This Court has described interests of the kind set forth by the Solicitor General as “plainly compelling.” Medellín, 552 U. S., at 524, 128 S.Ct. 1346; id., at 537, 128 S.Ct. 1346 (Stevens, J., concurring in judgment); see also id., at 566, 128 S.Ct. 1346 (BREYER, J., dissenting) (observing harms that would flow from noncompliance). The Court has long recognized the President's special constitutionally based authority in matters of foreign relations. See, e.g., United States v. Curtiss–Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 81 L.Ed. 255 (1936). And it has ordinarily given his views significant weight in such matters. Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 348, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (noting the Court's “customary policy of deference to the President in matters of foreign affairs”). It should do so here.

Finally, this Court has adequate legal authority to grant the requested stay. Should Senator Leahy's bill become law by the end of September (when we would consider the petition in the ordinary course), this Court would almost certainly grant the petition for a writ of certiorari, vacate the judgment below, and remand the case for further proceedings consistent with that law. Indeed, were the Solicitor General to indicate at that time that the bill was about to become law, I believe it likely that we would hold the petition for at least several weeks until the bill was enacted and then do the same. And this Court, under the All Writs Act, 28 U.S.C. §1651, can take appropriate action to preserve its “potential jurisdiction.” FTC v. Dean Foods Co., 384 U.S. 597, 603, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966).

Thus, on the one hand, international legal obligations, related foreign policy considerations, the prospect of legislation, and the consequent injustice involved should that legislation, coming too late for Leal, help others in identical circumstances all favor granting a stay. And issuing a brief stay until the end of September, when the Court could consider this matter in the ordinary course, would put Congress on clear notice that it must act quickly. On the other hand, the State has an interest in proceeding with an immediate execution. But it is difficult to see how the State's interest in the immediate execution of an individual convicted of capital murder 16 years ago can outweigh the considerations that support additional delay, perhaps only until the end of the summer.

Consequently I would grant the stay that the petitioner requests. In reaching its contrary conclusion, the Court ignores the appeal of the President in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of Executive Branch officials who have consulted with Members of Congress, and it denies the request by four Members of the Court to delay the execution until the Court can discuss the matter at Conference in September. In my view, the Court is wrong in each respect.