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«evidentiary hearing regarding his ability to overcome the procedural bars to further consideration of his death sentence. We also note several issues ...»

evidentiary hearing regarding his ability to overcome the procedural bars

to further consideration of his death sentence. We also note several issues

of concern that need further development on remand.

Gutierrez's death sentence has been addressed in two other,

independent proceedings: (1) in Case Concerning Avena and Other

Mexican Nationals (Mex. v. U.S.) (Avena), 2004 I.C.J. 12 (March 31), the

International Court of Justice (ICJ) held that the United States violated

Article 36(1)(b) of the Vienna Convention on Consular Relations, Dec. 14, 1969, 21 U.S.T. 77, by failing to inform Gutierrez of his right to consular assistance in defending his capital murder charge, id. at 51; and (2) in State v. Gonzalez, Case No. CR96-0562 (Nev. Second Jud. Dist. Ct.), the interpreter for the three-judge panel that sentenced Gutierrez to death was convicted of perjury for having falsified his credentials at Gutierrez's death penalty hearing.

Avena addressed the convictions and sentences of 51 Mexican nationals, of whom Gutierrez is one. On its face, "[t]he decision in Avena... obligates the United States 'to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [affected] Mexican nationals,' with a view to ascertaining' whether the failure to provide proper notice to consular officials 'caused actual prejudice to the defendant in the process of administration of criminal Medellin v. Texas (Medellin I), 552 U.S. 491, 536 (2008) justice."

(Stevens, J., concurring) (third alteration in original) (citation omitted) (quoting Avena, 2004 I.C.J. at 153(9); id. at 121).

Avena does not obligate the states to subordinate their post- conviction review procedures to the ICJ ruling. Thus, the Supreme Court has rejected post-conviction claims similar to Gutierrez's by two other




2 (0) 1947A Avena defendants, Humberto Leal Garcia and Jose Ernesto Medellin, holding that "neither the Avena decision nor the President's Memorandum purporting to implement that decision constituted directly enforceable federal law," Leal Garcia v. Texas, 564 U.S. „ 131 S. Ct. 2866, 2867 (2011) (5-4 decision), to which state procedural default rules must yield.

Medellin I, 552 U.S. at 498-99. Nonetheless, in declining to stay Leal Garcia's and Medellin's executions, the Supreme Court noted that neither had shown actual prejudice to a constitutional right due to lack of timely consular access. Medellin v. Texas (Medellin II), 554 U.S. 759, 760 (2008) ("[t]he beginning premise for any stay [of execution]... must be that petitioner's confession was obtained unlawfully," and thus that the petitioner was "prejudiced by his lack of consular access"); Leal Garcia, 564 U.S. at, 131 S. Ct. at 2868 (noting that, in supporting Leal Garcia's application for a stay of execution, "the United States studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation," and that "the District Court found that any violation of the Leal v.

Vienna Convention would have been harmless" (citing Quarterman, No. SA-07-CA-214-RF, 2007 WL 4521519, at *7 (W.D. Tex.

Dec. 17, 2007), vacated in part sub nom. Leal Garcia v. Quarterman, 573 F.3d 214, 224-225 (2009))). And while, without an implementing mandate from Congress, state procedural default rules do not have to yield to See Medellin I, Avena, they may yield, if actual prejudice can be shown.

552 U.S. at 533, 536-37 & n.4 (Stevens, J., concurring) (discussing Torres v. State, No. PCD-04-442, 2004 WL 3711623 (Okla. Crim. App. May 13, 2004), where the State of Oklahoma "unhesitatingly assumed" the burden of complying with Avena by ordering "an evidentiary hearing on whether Torres had been prejudiced by the lack of consular notification"; Justice 3 Stevens rightly described this burden as "minimal" when balanced against the United States' "plainly compelling interests in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments, and demonstrating commitment to the role of international law" (internal quotation marks omitted)).

Unlike Medellin and Leal Garcia but like Torres, Gutierrez arguably suffered actual prejudice due to the lack of consular assistance.

The Mexican consulate in Sacramento (the closest to Reno, where Gutierrez's death penalty hearing occurred) has provided an affidavit swearing that it would have assisted Gutierrez had it been timely notified.

Although the form its assistance would have taken remains unclear—a deficiency an evidentiary hearing may rectify—cases recognize that, "[in addition to providing a 'cultural bridge' between the foreign detainee and the American legal system, the consulate may. 'conduct its own investigations, file amicus briefs and even intervene directly in a Sandoval v. United States, 574 proceeding if it deems that necessary."

F.3d 847, 850 (7th Cir. 2009) (quoting Osagiede v. United States, 543 F.3d 399, 403 (7th Cir. 2008)).

It is apparent that Gutierrez needed help navigating the American criminal system. At the time of his arrest, Gutierrez was 26 years old, had the Mexican equivalent of a sixth-grade education, and spoke little English. Rather than go to trial, he entered an unusual nocontest plea to first-degree murder. His sentence was determined after an evidentiary hearing by a three-judge panel.' Both he and his wife were

–  –  –

4 charged in connection with the death of their three-year-old daughter.

There is some suggestion that his wife's role was greater than came out at his penalty hearing.

A number of witnesses testified at Gutierrez's penalty hearing, some Spanish-speaking. Gutierrez and the State each had an interpreter, but the court had its own interpreter as well, Carlos Miguel Gonzalez, who interpreted for 3 of the State's 16 witnesses. 2 A year after Gutierrez was sentenced to death, interpreter Gonzalez pleaded guilty to perjury that he committed during Gutierrez's death penalty hearing, when he swore he was certified and formally educated as an interpreter but was not. 3...continued circumstances necessary for imposition of the death penalty. See also NRS 175.554(2) ("the jury shall determine... whether an aggravating circumstance or circumstances are found to exist").

legal status of court interpreters is unclear. Charles M.

2The Grabau & Llewellyn Joseph Gibbons, Protecting the Rights of Linguistic Minorities: Challenges to Court Interpretation, 30 New. Eng. L. Rev. 227, 287-88 (1996). The commentary to Canon 3 of the Model Code of Professional Responsibility for Interpreters in the Judiciary (Nat'l Ctr.

State Courts 2002) states that "Mlle interpreter serves as an officer of the court and the interpreter's duty in a court proceeding is to serve the court and the public to which the court is a servant."

3 Gonzalez'spresentence investigation report gives this account of his

false testimony during Gutierrez's death penalty hearing:

–  –  –


OF NEVADA 8 (0) 1947A speaking U.S. citizen were detained in Mexico on serious criminal charges, the American consulate was not notified, and the interpreter who translated from English into Spanish at the trial for the Spanish-speaking judges was later convicted of having falsified his credentials, we would expect Mexico, on order of the ICJ, to review the reliability of the proceedings and the extent to which, if at all, timely notice to the American consulate might have regularized them. Perhaps timely consular notice would not have changed anything for Gutierrez; perhaps the interpreter's skills, despite his perjury, were sound. These are issues on which an evidentiary hearing needs to be held.

Accordingly, we ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

–  –  –


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