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BREARDv.GREENE, WARDEN - 523 U.S. 371 (1998)





No. 97-8214 (A-732). Decided April 14, 1998*

Petitioner Breard, a Paraguayan citizen, was convicted and sentenced to death in Virginia state court. He filed a motion for habeas relief in Federal District Court, arguing for the first time that his convictions and sentences should be overturned because Virginia authorities violated the Vienna Convention by failing to inform him that, as a foreign national, he had a right to contact the Paraguayan Consulate. The court held, however, that he procedurally defaulted his claim when he failed to raise it in state court and that he could not demonstrate cause and prejudice for this default. The Fourth Circuit affirmed. The Republic of Paraguay and its officials also brought suit in the District Court, alleging that their separate rights under the Convention had been violated by Virginia's failure to inform Breard of his Convention rights and to inform the Paraguayan Consulate of his arrest, conviction, and sentence. The Paraguayan Consul General also asserted a 42 U. S. C. § 1983 claim. The court concluded that it lacked subject-matter jurisdiction because Paraguay was not alleging a continuing violation of federal law and therefore could not bring its claims within the Eleventh Amendment immunity exception. The Fourth Circuit affirmed. Paraguay also instituted proceedings against the United States in the International Court of Justice (ICJ), alleging that the United States violated the Convention at Breard's arrest. The ICJ issued an order requesting the United States to "take all measures at its disposal to ensure that ... Breard is not executed pending the final decision in these proceedings." Breard then filed a petition for an original writ of habeas corpus and a

*Together with No. 97-1390 (A-738), Republic of Paraguay et al. v.

Gilmore, Governor of Virginia, et al., on application for stay or injunction and on petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit, No. 97-8660 (A-767), In re Breard, on application for stay and on petition for writ of habeas corpus, No. 125, Orig. (A-771), Republic of Paraguay et al. v. Gilmore, Governor of Virginia, et al., on application for temporary restraining order or preliminary injunction and on motion for leave to file a bill of complaint.


Per Curiam

stay application in this Court to "enforce" the ICJ's order, and Paraguay filed a motion for leave to file an original bill of complaint.

Held: Breard is not entitled to relief on any theory offered. He procedurally defaulted his Vienna Convention claim, if any, by failing to raise it in the state courts. The argument that the claim may be heard in federal court because the Convention is the "supreme law of the land" and thus trumps the procedural default doctrine is plainly incorrect for two reasons. First, a well-established rule of international law, embodied in the Convention itself, specifies that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State. In this country, assertions of error in criminal proceedings must first be raised in state court in order to form the basis for relief in habeas. Wainwright v. Sykes, 433 U. S. 72. Second, Breard's ability to obtain relief based on Convention violations is subject to the subsequently enacted Antiterrorism and Effective Death Penalty Act, which denies a habeas petitioner alleging that he is held in violation of treaties an evidentiary hearing if he has failed to develop the claim's factual basis in statecourt proceedings. See, e. g., Reid v. Covert, 354 U. S. 1, 18. As for Paraguay's suits, neither the Convention's text nor its history clearly provides a foreign nation a private right of action in United States' courts to set aside a criminal conviction and sentence for violating consular notification provisions. The Eleventh Amendment's "fundamental principle" that "the States, in the absence of consent, are immune from suits brought against them ... by a foreign State," Principality of Monaco v. Mississippi, 292 U. S. 313, 329-330, provides a separate reason why Paraguay's suit may not proceed. The Consul General's § 1983 suit is not cognizable because Paraguay, for whose benefit the suit is brought, is not a "person within the jurisdiction" of the United States authorized to bring suit under that section. See, e. g., Moor v. County of Alameda, 411 U. S. 693, 699. It is the Virginia Governor's prerogative to stay Breard's execution pending the ICJ's decision; nothing in this Court's existing case law allows it to make that decision for him.

Habeas corpus, motion for leave to file bill of complaint, certiorari, and stay applications denied. Reported below: No. 97-8214, 134 F.3d 615, and No. 97-1390, 134 F.3d 622.


Angel Francisco Breard is scheduled to be executed by the Commonwealth of Virginia this evening at 9 p.m. Breard, a citizen of Paraguay, came to the United States in 1986, at the

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