* This document was reproduced and reformatted from the text provided by the Oklahoma Court of Criminal Appeals

1 Torres v. State, 1998 OK CR 40, 962 P.2d, cert, denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).

2 Torres v. State, Case No. PCD-1998-213, (Okl.Cr. August 4, 1998) (Order not for publication).

3 Torres v. Mullen, 317 F.3d 1145 (10^th Cir. 2003), cert, denied, 540 U.S. , 124 S.Ct. 562, 919, 157 L.Ed 2d 454 (2003).

4 Torres v. State, 2002 OK CR 35, 58 P.3d 214, cert, denied, 538 U.S. 928, 123 S.Ct. 1580, 155 L.Ed.2d 323 (2003).

5 22 O.S.2001, §1089(D)(5); Rule 9.7(D)(4)-(7), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2004).

1 2004 I.C.J. 128 (Judgment of March 31, 2004). The existence of this specific judgment in Torres's case distinguishes this situation from the one this court faced in Valdez v. State, 2002 OK CR 20, 46 P.3d 703. In Valdez, the petitioner attempted to rely on an International Court of Justice case to which neither he nor his complaining government were party, and which did not specifically discuss his Vienna Convention claims.

2 Multilateral Vienna Convention on Consular Relations and Optional Protocol on Disputes, 21 U.S.T. 77 (1969), T.I.A.S. No. 6820.

3 Vienna Convention, 21 U.S.T. 77, art. 36, ¶ 1.

4 ' The United States Senate ratified the treaty and optional protocol on October 12, 1969, and President Richard Nixon ratified it on November 12, 1969. It was entered into force with respect to the United States on December 24, 1969, and President Nixon proclaimed the treaty's entry into force on January 29, 1970. 115 Cong. Rec. 30997 (Oct. 22., 1969); 21 U.S.T. 77, 373.

5 Report of the United States Delegation to the Vienna Conference on Consular Relations, reprinted in Sen. Exec. E. 91st Cong., 1st Sess., May 8, 1969, at 41-59-61.

6 United States Diplomatic and Consular Staff in Tehran ﹛United States v. Iran), 1979 I.C.J. 7; 1980 I.C.J. 3, 5, 24-26.

7 “Under the fundamental principle of pacta sum servanda, which states that ‘treaties must be observed,’ the United States has consistently invoked the Vienna Convention to protest other nations’ failures to provide American with access to consular officials.“ U.S. v. Superville, 40 F.Supp.2d 672, 676 (D.Virgin Islands, 1999).

8 Tehran Hostages, supra Note 13; Treatment in Hungary of Aircraft and Crew of the United States of America (United States v. Hungary), 1954 I.C.J. 99, 103 (Vienna convention claim dismissed because Hungary had not consented to International Court of Justice jurisdiction.) See also Case Concerning Elettronica Sicula S.p.A. (ELSI) (U.S. v. Italy) 1989 I.C.J. 15 (1948 Treaty of Friendship, Commerce and Navigation between Italy and United States, the Protocol and 1951 Supplementary Agreement); Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), 1984 I.C.J. 246 (1958 Convention on the Continental Shelf); Aerial Incident of 7 November 1954 (United States v. USSR) (1959); Aerial Incident of10 March 1954 (United States v. USSR) (1958); Aerial Incident of 27 July 1955 (United States v. Bulgaria) (1957-1960); Aerial Incident of 7 October 1952 (United States v. USSR) (1955-1956); Aerial Incident of 10 March 1953 (United States v. Czechoslovakia) (1955-1956); Treatment in Hungary of Aircraft and Crew of the United States of America (Untied States v. Hungary) (1954); Treatment in Hungary of Aircraft and Crew of the United States of America (Untied States v. USSR) (1954).

9 See Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States) 1998 I.C.J. 426, and the LaGrand Case (F.R.G. v. United States) 2001 I.C.J. 104, all brought under the Vienna Convention. The Paraguay case was dismissed at Paraguay's request after Virginia executed its subject, defendant Angel Francisco Breard. LaGrand found that Germany's and Walter LaGrand's rights under the Vienna Convention were violated when Arizona failed to inform LaGrand of his right to contact the German consulate; LaGrand was also executed during the pendency of International Court of Justice proceedings.

10 U.S. Const. Art. VI cl. 2. See, e.g., Antoine v. Washington, 420 U.S. 194, 201, 95 S.Ct. 944, 949, 43 L.Ed.2d 129 (1975) (treaties are binding upon affected states under the Supremacy Clause); Mezquita v. State, 125 S.W.3d 161, 169 (Ark., 2003); State v. Prasertphong, 75 P.3d 675, 688 (Ariz., 2003); Garcia v. State, 17 P.3d 994 (Nev., 2001); State v. Issa, 752 N.E.2d 904, 915 n.2 (Ohio, 2001); State v. Miranda, 622 N.W.2d 353, 355 (Minn.App., 2001); U.S. v. Carrillo, 70F.Supp.2d 854, 859 (N.D.I11., 1999); U.S. v. Emuegbunam, 268 F.3d 377, 389 (C.A.6 2001); U.S. v. Jimenez-Nova, 243 F.3d 192,195 (C.A.5 2001); U.S. v. Li, 206 F.3d 56, 60 (C.A.1 2000). See also Busby v. State, 40 P.3d 807, 8098 n.2 (Alaska App. 2002) (Convention on Road Traffic).

11 See, e.g., Nielsen v. Johnson, 279 U.S. 47, 52, 49 S.Ct. 223, 224, 73 L.Ed. 607 (1929). U.S. v. Emuegbunam, 268 F.3d 377 (C.A.6 2001); U.S. v. Jimenez-Nava, 243 F.3d 192, 195 (C.A.5 2001); Murphy v. Netherland, 116 F.3d 97, 100 (C.A.4, 1997); Busby v. State, 40 P.3d 807, 809 (Alaska App. 2002).

12 U.S. v. Carrillo, 70 F.Sup.2d 854,860 (N.D.III, 1999). “Accordingly, the State Department has intervened and attempted to persuade state authorities to honor the Vienna Convention when state law enforcement officers have neglected or refuse to inform detained foreign nationals of their right to contact consular officials. For example, the Secretary of State recently asked the Governor of Virginia to stay the execution of Paraguayan death-row prisoner Angel Francisco Breard until the International Court of Justice could consider whether Virginia's violation of the Vienna Convention warranted a new trial. The Secretary expressed concern that” [t]he execution … could lead some countries to contend incorrectly that the U.S. does not take seriously its obligations under the Convention.” [FN4] As the Secretary recognized, continued violation of the treaty imperils the rule of law, the stability of consular relations, and the safety of Americans detained abroad.” U.S. v. Superville, 40 F.Supp2d 672, 676 (D.Virgin Islands, 1999); “The United States, through this treaty [the Vienna Convention], has clearly granted certain specified rights to foreign nationals. The purpose behind those rights is two-fold: i) to afford minimal protections to foreign nationals detained by authorities in this country and ii) to assure minimal protections to United States (U.S.) Citizens detained by authorities in foreign countries who are also signatories to the Treaty. In my judgment, the decision of this Court in this case, and the decision of the United States Supreme Court puts U.S. citizens traveling abroad at risk of being detained without notice to U.S. consular officials. Why should Mexico, or any other signatory country, honor the Treaty if the U.S. will not enforce it?The next time we see a 60 minutes piece on a U.S. citizen locked up in a Mexican jail without notice to any U.S. governmental official we ought to remember these cases.” Flores v. State, 1999 OK CR 52, 994 P. 2d 782, 788 (Chapel, J. concurring in result).

13 United States v. Stuart, 489 U.S. 353, 365-66,109 S.Ct. 1183,1190-91,103 L.Ed.2d 388 (1989); Roeder v. Islamic Republic of Iran, 333 F.3d 228, 238 (C.A.D.C, 2003); In re Commissioner's Subpoenas, 325 F.3d 1287,1301 (C.A.I 1 2003); U.S. v. Emuegbunam, 268 F.3d 377, 389 (C.A.6 2001); U.S. v. Jiminez-Nava, 243 F.3d 192, 195 (C.A.5 2001); U.S. v. Li, 206 F.3d 56, 60 (C.A.I, 2000); Tabion v. Mufti, 73 F.3d 535, 537 (C.A.4 1996).

14 “The States Parties to the present Protocol and to the Vienna Convention on Consular Relations, hereinafter referred to as ‘the Convention', adopted by the United Nations Conference held at Vienna from 4 March to 22 April 1963, Expressing their wish to resort in all matters concerning them in respect of any dispute arising out of the interpretation or application of the Convention to the compulsory jurisdiction of the International Court of Justice, unless some other form of settlement has been agreed upon by the parties within a reasonable period, Have Agreed as follows: Article I. Disputes arising out of interpretation or application of the Convention shall lie within the compulsory jurisdiction of the International Court of Justice and may accordingly be brought before the Court by an application made by any party to the dispute being a Party to the present Protocol.” 21 U.S.T. 77, 325-29.

15 U.S. Const., art. II §2 cl. 2.

16 El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 168, 119 S.Ct. 662, 671, 142 L.Ed.2d 576 (1999); Sumitomo Shop America, Inc. v. Avagliano, 457 U.S. 176,185,102 S.Ct. 2374,72 L.Ed.2d 765 (1982); U.S. v. Duarte-Acero, 296 F. 3d 1277,1282 (C. A. 11 2002); Emuegbunam, 268 F.3d at 392; United States v. De La Pava, 268 F.3d 157,165 (2nd Circ.2001); Li, 206 F.3d at 63.

17 In a First Circuit case, the State Department submitted answers to questions posed by the Court regarding its interpretation of the Vienna Convention. The Court subsequently cited that response: “[In] Department of State Answers to the Questions Posed by the First Circuit in United States v. Nai Fook Li ('Answers’) at A-2, the State Department has concluded that [t]he [Vienna Convention] and the US-China bilateral consular convention are treaties that establish state-to-state rights and obligations…. They are not treaties establishing rights of individuals. The right of an individual to communicate with his consular official is derivative of the sending state's right to extend consular protection to its nationals when consular relations exist between the states concerned. Id. at A-3; see also id. at A-l. “The [only] remedies for failures of consular notification under the [Vienna Convention] are diplomatic, political, or exist between states under international law.” See id. at A-3.” Li, 206 F.3d at 63. These Answers have been subsequently cited in a number of state and federal cases. See, e.g., State v. Navarro, 659 N.W.2d 487, 491, (Wis. App., 2003) Review Denied by State v. Navarro, 661 N.W.2d 101, (Wis. 2003) (Table, NO. 02-0850-CR); U.S. v. Duarte-Acero, 296F.3d 1277, 1282 (C.A.I 1 2002); State v. Martinez Rodriguez, 33 P.3d 267, 272 n. 5 (N.M., 2001); U.S. v. Carrillo, 70 F.Supp.2d 854, 860 (N.D.I1L, 1999); U.S. v. Superville, 40 F.Supp.2d 672, 676 (D.Virgin Islands, 1999);

18 This essential aspect of the case distinguishes it from Committee of U. S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 937- 938 (D.C.Cir. 1988). The plaintiffs in Nicaragua attempted to invoke an International Court of Justice decision made under international law and a treaty with Nicaragua. However, the plaintiffs were not parties to the International Court of Justice decision, and the treaties relied on where not self-executing. By contrast, Avena applies directly to Torres's case, and the Vienna Convention is self-executing through the Optional Protocol.

19 Exhibits Q, S, Appendix, Subsequent Application for Post Conviction Relief. As the dissent notes, the State claims that there is conflicting information regarding when Mexico was first told of Torres's detention. However, any such conflict does not change the fact that Torres was never personally informed of his right to contact the consulate, as required under the treaty.

20 Avena, slip op. at 52.

21 Avena, slip op. at 51-52. This holding distinguishes this case from cases in which Vienna Convention claims were brought to United States state and federal courts in the first instance. Courts, including this court, have routinely applied procedural bar to such claims. See, e.g., Valdez v. State, 2002 OK CR 20, 46 P.3d 703, 709; Breard v. Greene, 523 U.S. 371, 375, 118 S.Ct. 1352, 1354, 140 L.Ed.2d 529 (1998), Murphy v. Netherland, 116 F.3d 97, 100 (C.A.4, 1997); Mezquita v. State, 125 S.W.3d 161 (Ark., 2003); Ademodi v. State, 616 N.W.2d 716, 717 n. 2 (Minn., 2000); State v. Reyes-Camarena, 1 P.3d 522 (2000); State v. Ameen, 183-84 1 P.3d 330 (Kan. App. 2000).

22 In an earlier opinion in Torres's case, Justice Stevens noted it was “manifestly unfair” to apply procedural bar to “a foreign national who is presumptively ignorant of his right to notification.” Torres v. Mullin, U.S., 124 S.Ct. 919, 919, 157 L.Ed.2d 454 (2003) (Stevens, J. dissenting to denial of petition for writ of certiorari).

23 Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 1356, 140 L.Ed.2d 529 (1998) (refusing to stay Breard's execution during pendency of International Court of Justice case, case was decided on procedural bar grounds).

24 People v. Preciado-Flores, 66 P.3d 155, 161 (Colo.App., 2002); Zavala v. State, 739 N.E.2d 135, 142 (Ind.App., 2000); State v. Cevallos-Bermeo, 754 A.2d 1224, 1227 (N.J.Super.A.D., 2000); U.S. V. Chaparro-Alcantara, 37 F.Supp.2d 1122, 1126 (N.D.III. 1999); United States v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D.Cal.1998); United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir.1989), overruled on other grounds, United States v. Proa-Tovar, 975 F.2d 592 (9th Cir.1992).

25 Affidavit of Osvaldo Torres Aguilera, Exhibit W, Appendix, Subsequent Application for Post-Conviction Relief [Appendix].

26 Torres's family contacted the Mexican Consulate in 1997. Affidavit of Arturo A. Dager Gomez, ¶¶ 29-31, Exhibit A, Appendix.

27 Affidavit of Everard Kidder Meade IV, Exhibit G, Appendix.

28 Affidavit of Arturo A. Dager Gomez, Exhibit A, Appendix; Affidavit of Ramon Xilotl Ramirez, Exhibit B, Appendix; Affidavit of Scott J. Atlas, Exhibit C, Appendix; Affidavit of Barbara K. Strickland, Exhibit D, Appendix; Affidavit of Jaime Paz Y Puente Gutierrez, Exhibit E, Appendix; Affidavit of Bonnie Lee Goldstein, Exhibit F, Appendix; Declaration of Michael Iaria, Exhibit H, Appendix.

29 Affidavit of Ramon Xitotl Ramirez, ¶¶ 13, 14, Exhibit B, Appendix; Affidavit of Jaime Paz Y Puente Gutierrez, ¶ 4, Exhibit E, Appendix; Affidavit of Scott J. Atlas, ¶¶ 4, 5, 7, Exhibit C, Appendix; Affidavit of Barbara K. Strickland, passim, Exhibit D, Appendix. In one example, after a thorough criminal investigation by the Mexican consulate, capital charges against a Mexican national in Texas were dismissed. Affidavit of Arturo A. Dager Gomez, ¶ 10, Exhibit A, Appendix.

30 Affidavit of Arturo A. Dager Gomez, ¶ 7, Exhibit A, Appendix.

31 Id. at ¶¶ 9.

32 Id. at ¶ 12; Declaration of Michael Iaria, ¶¶ 6-8, Exhibit H, Appendix.

33 Affidavit of Arturo A. Dager Gomez, ¶¶ 17, 18 Exhibit A, Appendix; Declaration of Michael Iaria, ¶¶ 4-5, Exhibit H, Appendix.

34 Torres's first trial ended in a mistrial on the issue of guilt or innocence.

35 As this Court found in Valdez, the Mexican government was prepared to assist a Mexican national facing a capital Oklahoma charge in 1989. Valdez, 46 P.3d at 710.

36 Id. at ¶¶ 32-41; Affidavit of Ramon Xilotl Ramirez, ¶¶ 6-8 Exhibit B, Appendix.

37 Affidavit of Arturo A. Dager Gomez, ¶ 30, Exhibit A, Appendix.

38 Id. at ¶ 32.