Gomez v. Quarterman

United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-70047
_______________
IGNACIO GOMEZ,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before DAVIS, SMITH, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ignacio Gomez, convicted in state court of
capital murder, applied to this court for a
certificate of appealability (“COA”) after the
district court had rejected his petition for a
writ of habeas corpus. Gomez v. Dretke, No.
EP-02-CV-267 (W.D. Tex. Sept. 30, 2004).
After bringing his COA application, Gomez
filed a “Motion To Stay and Abate Proceed-
ings.” We grant that motion and thereby stay
our consideration of Gomez’s application for
COA pending the exhaustion of Gomez’s state
court proceedings.
I.
The issues in Gomez’s application for COA
involve (1) claims related to Texas’s lack of
jury instructions on parole possibilities (i.e., an

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alleged Sixth Amendment Compulsory Process
Clause violation); (2) claims surrounding the
allegedly improper exclusion of several jury
veniremembers, as well as an ineffective assis-
tance claim complaining of his lawyer’s failure
to object to the exclusion of some of those
veniremembers; and (3) a claim that an alleged
violation of the Vienna Convention on Con-
sular Relations (“VCCR”)1 deprived him of a
fair trial.
With respect to the third claim, Gomez
argues that the VCCR was violated by the
admission of his confession that was obtained
without first advising him of his treaty-based
right to the assistance of the Mexican consul-
ate.2 That VCCR claim presents significant
procedural difficulties and ultimately convinces
us to grant a stay.
A.
After a panel of this court denied a COA in
Medellin v. Dretke, 371 F.3d 270, 279-80 (5th
Cir. 2004) (based on procedural default), on
the issue of whether a decision of the Interna-
tional Court of Justice (“ICJ”) in Avena3 re-
quires habeas relief for petitioners whose
VCCR rights were violated, the Supreme
Court granted certiorari. Medellin v. Dretke,
125 S. Ct. 686 (2004). The grant of certiorari
involved two questions, paraphrased as fol-
lows: (1) Are United States courts bound by
Avena?; and (2) Even if not bound, should
United States courts give effect to Avena in
the interest of comity? Id.
After briefing in Medellin had been
completed, however, the President advised the
Attorney General that “[t]he United States will
discharge its international obligations under
the decision of the [ICJ in Avena] by having
state courts give effect to the decision in ac-
cordance with general principles of comity.”
Medellin subsequently moved the Supreme
Court to stay its proceedings pending his
pursuit of relief in state court; the United
States, as amicus curiae, supported the mo-
tion.
According to Medellin, the United States,
and now Gomez, the Executive’s power to
undertake foreign policy initiatives, as recog-
nized in Am. Ins. Ass’n v. Garamendi, 539
U.S. 396 (2003), requires Texas courts to give
effect to his foreign policy wishes, even if it
means abandoning normal procedural default
rules. Not surprisingly, the state disagrees,
and we will have to await pronouncements of
the Texas courts (and perhaps of the Supreme
Court) regarding the force of the President’s
directive.
B.
For chronological clarity, we now shift the
narrative from Medellin to the instant case.
While his COA application was pending before
this court, Gomez moved us to grant a stay
and abatement of his COA application pro-
ceedings so that he could pursue state court
remedies in light of the President’s announce-
ment. Gomez argues that under Texas law, he
cannot seek successive state applications for
habeas relief while a petition is pending in this
1 Apr. 24, 1963, [1070] 21 U.S.T. 77, 100-01,
T.I.A.S. No. 6820.
2 See Rosales v. Bureau of Immigration & Cus-
toms Enforcement, 2005 U.S. App. LEXIS 17246,
at *7-*8 (5th Cir. Aug. 16, 2005) (per curiam).
3 The full caption for Avena is Case Concern-
ing Avena and other Mexican Nationals (Mex. v.
U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31).

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court unless we grant such a stay.4
In response, the state contends that the dual
forum problem highlighted by Gomez would
be equally remedied if we merely deny his
COA.5 Moreover, the state argues that the
resolution of any state court proceedings is
irrelevant to the COA issues presented here.
According to the state, the VCCR claim is
procedurally barred because Gomez allegedly
abandoned it in state court. The state also
argues that because the VCCR claim is trea-
ty-based, not constitutional, 28 U.S.C. § 2253-
(c)(2)6 does not allow a COA to issue in any
event.
C.
After the filing of the motion for stay and
the receipt of the state’s opposition, however,
the Supreme Court dismissed the writ of cer-
tiorari in Medellin as improvidently granted.
Medellin v. Dretke, 544 U.S. ___, 125 S. Ct
2088 (2005) (per curiam). This decision was
accompanied by a lengthy per curiam explana-
tion, a concurrence advocating for granting the
stay Medellin had requested, and three dissents
advocating, variously, granting a stay or vacat-
ing the denial of COA and remanding to this
court (which Justice O’Connor believed would
stay the proceedings pending state court dis-
position of the new writ application in light of
the Presidential directive).7 We requested and
have received additional briefing addressing
the Court’s disposition of Medellin.
II.
Our habeas corpus jurisprudence consis-
tently underscores the central importance of
“‘comity, of cooperation and of rapport be-
tween’” the parallel systems of state and feder-
al courts. Tucker v. Scott, 66 F.3d 1418, 1419
(5th Cir. 1995) (quoting Texas v. Payton, 390
F.2d 261, 270 (5th Cir. 1968)). These con-
cerns animate our strict adherence to the
doctrine of exhaustionSSi.e., the notion that
federal courts will not consider a claim on ha-
beas review if it has not been considered and
finally rejected by the state courts. See 28
U.S.C. § 2254(b)(1)(A).
Although Gomez (arguably)8 has previously
presented his VCCR claim to the Texas state
courts, the subsequent decision of the ICJ in
Avena, coupled with the Presidential directive
of February 28, 2005, counsel in favor of
Gomez’s re-pursuing relief in the Texas
courts. Indeed, the Supreme Court has inti-
mated that perhaps an “intervening change in
4 See Ex parte Soffar, 143 S.W.3d 804 (Tex.
Crim. App. 2004) (amending Texas’s “dual forum”
rule to allow a petitioner to file a subsequent state
writ if the federal court with jurisdiction over a
parallel writ stays its proceedings to allow the pe-
titioner to exhaust his claims in state court).
5 This response overlooks the procedural and
limitations difficulties Gomez would face if he later
wished to have the state courts’ adjudication re-
viewed in federal court via a habeas petition. This
concern is what led the Court of Criminal Appeals
to amend its dual forum rule in Soffar, 143 S.W.3d
at 805, and motivated the Court in Rhines v.
Weber, 125 S. Ct. 1528, 1533-34 (2005) (allowing
federal courts to grant stays pending state exhaus-
tion where a federal habeas petitioner brings both
exhausted and unexhausted claims).
6 Section 2253(c)(2) provides that a COA “may
issue . . . only if the applicant has made a substan-
tial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (emphasis added).
7 See Rosales, 2005 U.S. App. LEXIS 17246,
at *8-*9.
8 As we have noted, the parties disagree as to
whether Gomez abandoned his VCCR claim during
his direct appeal.

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federal law cast[ing a] legal issue in a funda-
mentally different light” might make necessary
the re-exhaustion of state court remedies
before seeking federal review. See Picard v.
Connor, 404 U.S. 270, 276 (1971) (citing
Blair v. California, 340 F.2d 741, 744 (9th
Cir. 1965)).
Staying our proceedings pending Gomez’s
re-exhaustion of state remedies has the further
benefit of avoiding the issuance of what might
eventually be rendered an effectively advisory
opinion.9 As we have noted, the state argues
that Gomez’s VCCR claim is unworthy of a
COA in that he fails to make a substantial
showing of a constitutional right as required
by § 2253(c)(2). In addition to that thorny
question, Gomez’s case raises many of the
same hurdles that the Supreme Court recog-
nized as counseling in favor of dismissing the
writ of certiorari in Medellin.
Notably, even if we were to hold that Go-
mez’s VCCR claim is entitled to a COA, there
is a question whether a treaty-based violation
would fall under the category of “‘nonconsti-
tutional lapses we have held not cognizable in
a postconviction proceeding’ unless they meet
the ‘fundamental defect test.’” Medellin, 125
S. Ct. at 2090 (quoting Hill v. United States,
368 U.S. 424, 428 (1962)). Consequently, if
we were to resolve these dilemmas, and yet
Gomez eventually were to obtain relief
through the Texas courts, our opinion will be
rendered effectively meaningless.
Those considerations, among the others
highlighted by the Supreme Court in Medellin,
even if not truly raising a concern about advi-
sory opinions, certainly run contrary to the
familiar canon of constitutional avoidance.
See, e.g., Ashawander v. Tenn. Valley Auth.,
297 U.S. 288, 341 (1936) (Brandeis, J., con-
curring). Staying our proceedings pending the
resolution of Gomez’s successive state habeas
application will allow us to avoid myriad con-
stitutional quandaries.
This maxim of constitutional avoidance
rationale is particularly acute with respect to
the resolution of the dispute over whether
§ 2253(c)(2) allows for COA’s based on al-
leged treaty violations. Were we to adopt the
state’s position, the result might be that a pe-
titioner could be entitled to habeas relief based
on certain non-constitutional claims, yet were
he denied such relief by the district court, he
would be precluded from receiving any appel-
late review of that denial.10
The decision in Immigration & Naturali-
zation Serv. v. St. Cyr, 533 U.S. 289 (2001),
further calls into question the ability of Con-
9 Cf. Hayburn’s Case, 2 U.S. (2 Dall.) 409
(1792) (declining to make recommendations on vet-
erans’ pensions because such non-binding pro-
nouncements would be “radically inconsistent with
the independence of th[e] judicial power”).
10 Although some commentators have argued
that the wholesale removal of appellate jurisdiction
over entire classes of cases is not only constitu-
tional, but advisable, see, e.g., Paul M. Bator,
Congressional Power over the Jurisdiction of the
Federal Courts, 27 VILL. L. REV. 1030, 1038
(1982); cf. Ex parte McCardle, 74 U.S. 506
(1868), such a robust reading of the “Exceptions
Clause” of Article III has been criticized as uncon-
stitutionally stripping the Court of its historically
understood role consisting of supervisory authority
over the “inferior courts” through “discretionary
writs, such as mandamus, habeas corpus, and pro-
hibition,” James E. Pfander, Jurisdiction-Stripping
and the Supreme Court’s Power To Supervise
Inferior Tribunals, 78 TEX. L. REV. 1433, 1441-
42 (2000).

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gress wholly to remove appellate jurisdiction
in cases such as the present one. In St. Cyr,
the Court held that AEDPA11 and IIRIRA12
did not wholly deprive the federal courts of
jurisdiction to review a deportation or-
derSSeven by means of a writ of habeas cor-
pusSSso as to leave St. Cyr with no opportu-
nity for judicial review. Invoking several time-
honored canons of statutory construction, the
Court held that the statutes at issue did not
repeal habeas review.
In the first instance, the Court noted that
“[i]mplications from statutory text or legisla-
tive history are not sufficient to repeal habeas
jurisdiction; instead, Congress must articulate
specific and unambiguous statutory directives
to effect a repeal.” Id. at 299. Furthermore,
given the questionable constitutionality of such
wholesale strips of authority, “as a general
matter, when a particular interpretation of a
statute invokes the outer limits of Congress’
power, we expect a clear indication that Con-
gress intended that result.” Id.
Here, the change in statutory phraseology
that underlies the state’s argument does not
necessarily overcome this “clear statement”
burden. Before the enactment of AEDPA, pe-
titioners needed to make a “substantial show-
ing of [a] federal right,” to obtain a certificate
of probable cause. Barefoot v. Estelle, 463
U.S. 880, 894 (1983). AEDPA codified this
language as the standard for obtaining a COA,
except that it substituted the word “constitu-
tional” for “federal.” Although a strong tex-
tual argument can be made that we must give
some effect to this linguistic shift, Congress’
wording falls short of the explicit “clear state-
ment” standard articulated in St. Cyr.
A further concern that is avoided by a stay
is the AEPDA limitations/tolling difficulties
that Gomez might face were we to deny his
application for a COA before resolution of his
successive state court writ application. As
Gomez puts it in his supplemental letter brief,
[I]f this Court declines to stay and abey
proceedings on Gomez’s application for
COA, the [Court of Criminal Appeals] will
be barred by its own case law from consid-
ering his subsequent state application. Sof-
far v. State, 143 S.W.3d 804 (Tex. Crim.
App. 2004). Then, if this Court proceeds
finally to dispose of Gomez’s COA appli-
cation, and the [Court of Criminal Appeals]
later denies relief on Gomez’s subsequent
state application, any attempt by Gomez to
file a successive federal petition will neces-
sarily be time-barred, since the pendency of
his current federal petition is not excludable
from the limitations period. Duncan v.
Walker, 533 U.S. 167 (2001).
The principles underlying federal abstention
doctrines also support a stay. In Railroad
Comm’n v. Pullman Co., 312 U.S. 496, 501
(1941), the doctrine now familiarly known as
Pullman abstention was born, to-wit, “Federal
court abstention is required when state law is
uncertain and a state court’s clarification of
state law might make a federal court’s consti-
tutional ruling unnecessary.” ERWIN CHEM-
ERINSKY, FEDERAL JURISDICTION § 12.2.1, at
763 (4th ed. 2003). A stay in favor of the suc-
cessive state writ application will allow the
Texas courts to grapple with the difficulties of
squaring Texas’s notions of procedural default
with the Avena decision and the Presidential
directive. Furthermore, the Supreme Court’s
11 Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214
(1996).
12 Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, 8 U.S.C. § 1252.

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various opinions in Medellin presage that the
High Court will grant a writ of certiorari on
review from the Court of Criminal Appeals if
relief is not granted by the state courts. See
Medellin, 125 S. Ct. at 2090 n.1; id. at 2093
(Ginsburg, J., concurring).
III.
In summary, we GRANT Gomez’s motion;
this court’s consideration of Gomez’s applica-
tion for a COA is STAYED pending resolution
of his pending state habeas corpus proceed-
ings. We exercise our traditional deference to
the state courts so that they may reconsider
Gomez’s VCCR/Avena claim in light of the
President’s directive and the Supreme Court’s
pronouncements. In so doing, we express no
view as to what action the state courts should
take.

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