UPDATE: Execution of Honduran allowed
on Aug 7, 2008 at 1:24 pm
UPDATE 4:30 p.m. Without recorded dissent, the Supreme Court on Thursday afternoon refused to delay the execution in Texas of a Honduran for a 2001 murder in Arlington, Texas. The Court’s order (found here) also denied review of Heliberto Chi’s appeal. Justice Antonin Scalia, as Circuit Justice, referred the case to the full Court. There was no written opinion. The execution is scheduled for 6 p.m. Central time. (FURTHER UPDATE: The Houston Chronicle, reporting later in the evening on the process, said that “Chi was pronounced dead nine minutes later at 6:25 p.m. CDT.”)
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A Honduran national, scheduled to be executed Thursday evening in Texas, asked the Supreme Court Thursday morning to delay that process and hear his claim that Texas violated a U.S.-Honduran treaty in his case. The challenge by lawyers for Heliberto Chi (petition 08-5652, stay application 08A112) came two days after the Supreme Court allowed Texas to execute another foreign national, Mexican Jose Ernesto Medellin. Texas’ opposition brief in Chi’s case can be found here.
The cases are similar, in that both Chi and Medellin contend that they were denied access to diplomatic officers from their country as their criminal cases went forward in Texas.  Chi’s challenge is not based on the Vienna Convention on Consular Relations — the treaty at issue in the Medellin case — but rather on a consular rights treaty between the U.S. and Honduras, dating from 1927. His appeal contends that this bilateral agreement is “self-executing,” unlike the Vienna Convention, and thus is binding within the U.S. and on Texas.
Chi, like Medellin, had sought to rely in part on the Vienna Convention. But, his lawyers told the Court, that part of his challenge was “foreclosed” by the Court’s action on Tuesday in the Medellin case. Chi “relies solely on the claims arising under the bilateral Consular Rights Treaty as the basis for review in this Court.”
The plea for a postponement of the scheduled execution explicitly asks the Court to ask for the views of the U.S. Solicitor General on the Honduran treaty — a move the Court did not make in the Medellin case, although four Justices suggested it; the Court did do so, though, in a 1998 case involving the Vienna Convention. The views of the government of Honduras should also be consulted, Chi’s application argued.
The state of Texas, in response, argued that the Honduran treaty does not guarantee Chi the rights he claims, that it is not self-executing and thus does not apply in the U.S., that the Court has no jurisdiction to act because state courts relied solely on state law in rejecting his claim, that his claim in any event has been rejected on the merits, and that he has waited for almost four years to rely on the Honduran treaty.
Chi’s plea was filed with Justice Antonin Scalia in his role as Circuit Justice, but he is likely to share it with his colleagues, as he did with the Medellin case on Tuesday.
As in Medellin’s case, the Texas Court of Criminal Appeals rejected Chi’s challenge to execution on the basis that he had not filed his claim when the case was in Texas courts, and thus had forfeited it for post-conviction challenge. In its order Wednesday, it dismissed his “subsequent application” for procedural flaw. (The order and other materials, including the bilateral treaty, are included in the appendices with the petition, linked above.)
 A concurring Justice, Tom Price, said in a separate opinion that, even assuming the U.S.-Honduras treaty was self-executing, Chi “faces an insurmountable burden” in raising his challenge at this stage. The burden Price cited included the Supreme Court’s ruling in 2006 in Sanchez-Llamas v. Oregon (another Vienna Convention case) saying that a treaty could override state procedural rules only if the agreement contained a clear statement doing so. Price found no such statement.
As an alternative, Price said, the Supreme Court’s March 25 decision in Medellin v. Texas, while commenting that treaties like the U.S.-Honduran treaty were self-executing and enforceable in U.S. courts, did not announce a “new legal doctrine” so Chi could not take advantage of it.
Chi was convicted and sentenced to die in 2002 for the March 2001 murder of the manager of a men’s clothing store — where he once worked – in South Arlington, Texas. He was arrested in Los Angeles weeks after the shooting, but was not told of his treaty right to speak to a diplomat from Hondruas.
In his appeal, he asserted that the Texas court failed to distinguish between his claims under the Honduran treaty and his prior claims under the Vienna Convention.  Article XX of the Honduran treaty, his appeal noted, provides for contact with consular officers “for the purpose of protecting the nationals of the state…in the enjoyment of their rights accruing by treaty or otherwise.”
The bilateral treaty was signed at Tegucigalpa in December 1927, ratified by both countries in 1928, and proclaimed later that year. Calvin Coolidge was U.S. President at the time.
In urging the Supreme Court to hear the case, Chi’s attorneys argued that the Constitution’s Supremacy Clause requires Texas to obey the consular treaty with his home country, and that this is an obligation that has been reinforced by “an unbroken line of this Court’s cases, from the earliest days of the Republic to the present.”
But, the petition added, “he faces execution in a matter of hours without any court having addressed the merits of his interpretation of the status of the Consular Rights Treaty, the scope and significance of its rights-conferring provisions or the remedies that should ensure for their violation.”
