Miguel Angel Flores v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

Miguel Angel Flores seeks habeas relief on two grounds.1 First, he urges that he did not receive effective assistance of counsel during the guilt and penalty phases of his trial. Second, he urges that his conviction should be reversed for failure of the state to advise Flores of his right to inform Mexican consular officials of his arrest and detention and to be informed of his rights under the Vienna Convention on Consular Relations, April 23, 1963, TIAS 6820, 21 U.S.T. 77, 596 UNTS 261. The district court denied relief.

I

We reject the claims of ineffective assistance of counsel for essentially the reasons found by the district court.

II

The United States Senate ratified the Vienna Convention on December 24, 1969. At that time, the provisions of the Convention became binding on the individual states. U.S. Const, arts. VI, cl. 2; art. II, § 2, cl. 2. The Vienna Convention provides:

if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending state if, within its consular district, a national of that state is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his right under this sub-paragraph.

21 U.S.T. 78, Apr. 23, 1963, art. 36(b) (emphasis added).

On his arrest and interrogation, Flores was not advised of his rights under the Convention. It appears to be undisputed that officials were aware of his citizenship. Flores urges that a failure to abide by the terms of the Convention is structural error and hence he need not demonstrate that the violation prejudiced his right to a fair trial; that there is no harmless error analysis for structural defects. Alternatively, Flores urges that the “violation” of the Convention “seriously harmed” him. The argument continues that while in custody, Flores was “compelled to make four tape recorded statements” without an attorney, that had the consulate been informed of his rights, the consulate would have obtained a Spanish speaking attorney for him. The State replies that Flores has lived his life in the United States, was educated in its public schools, and his first language is English. Further, that he did not want assistance.

At the outset we must confront the question of whether the Vienna Convention conferred rights enforceable by individuals. Here Flores points to our decision in Faulder v. Johnson, 81 F.3d 515 (5th Cir.1996). In Faulder we observed that there had been a violation of Faulder’s Vienna Convention rights. However, the panel found the omission to be “harmless error,” which did not merit reversal:

[T]he district court correctly concluded that Faulder or Faulder’s attorney had access to all of the information that could have been obtained by the Canadian government. While we in no way approve of Texas’ failure to advise Faulder, the evidence that would have been obtained by the Canadian authorities is merely the same or cumulative of evidence defense counsel had or could have obtained.

We do not read our opinion in Faulder as recognizing a personal right under the Convention. Rather, the panel dispatched the claim with its conclusion that any violation was harmless. Any negative implication inherent in rejecting the claim as harmless lacks sufficient force to support a contention that the panel held that the Convention created rights enforceable by individuals. While we conclude that Faulder has not decided the question, we do not reach its merits because at best Flores’s assertion is Teague barred.

The Supreme Court in Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 1355, 140 *458L.Ed.2d 529 (1998), noted that “[t]he Vienna [Convention ... arguably confers on an individual the right to consular assistance following arrest.” Thus, even the Court admits the possibility that the Vienna Convention does not confer such rights, and therefore, such a finding would create a new exclusionary rule, which is prohibited in a collateral habeas attack because of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Breard, 118 S.Ct. at 1354-55 (holding that the Vienna Convention must be applied “in conformity with the laws and regulations” of the United States, including the rules for federal habeas relief).

AFFIRMED.