WWW.DISSERTATION.XLIBX.INFO
FREE ELECTRONIC LIBRARY - Dissertations, online materials
 
<< HOME
CONTACTS



«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

SUPREME COURT

OF

NEVADA

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:

–  –  –

SUPREME COURT

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.

–  –  –

SUPREME COURT OF NEVADA 4 (0) 1947A



Similar works:

«    LITERATURE CONCENTRATION SENIOR THESIS HANDBOOK 16 Quincy Street Cambridge, MA 02138 www.complit.fas.harvard.edu 1 TABLE OF CONTENT Letter from the Director of Studies page 2 Senior Tutorial Timetable page 3 Senior Thesis Guidelines page 4 The Translation Thesis page 8 Sample Title Page for Senior Thesis page 10 The Thesis Proposal page 11 The Senior Thesis Proposal Cover Page page 15 Thesis Proposal Samples page 16 How to Write a Good Research Proposal page 40 Twenty Tips for Senior...»

«Milcho Manchevski’s Before the Rain and the Ethics of Listening Gordana P. Crnkovic ´ From Seeing to Listening A genuine artistic achievement and a “hugely successful movie” with both international audiences and reviewers at the time of its release, Pred dož dot (Before the Rain, 1994), scripted and directed by Macedonian-American Milcho Manchevski, won the Golden Lion at the Venice Film Festival and was nominated for the Academy Award as best foreign film. It is one of a very few...»

«Material Event BBVA HIPOTECARIO 3 Fondo de Titulización de Activos concerning Pursuant to section III.4.2.d of the Prospectus for BBVA HIPOTECARIO 3 Fondo de Titulización de Activos (the “Fund”) notice is given to the COMISIÓN NACIONAL DEL MERCADO DE VALORES of the following material event: • The Rating Agency Moody´s Investors Service (“Moody´s”) announced on March 23, 2009 that it has placed the rating assigned by Moody´s to the following Bond Series issued by BBVA HIPOTECARIO...»

«ALSTON&BIRD LLP The Atlantic Building 950 F Street, NW Washington, DC 20004-1404 202-756-3300 Fax:202-756-3333 www.alston.com Carol M. McGee E-mail: carol.mcgee@alston.com Securities Exchange Act of 1934 Sections 12, 13 and 14 August 4, 2010 VIA E-MAIL Office of Chief Counsel Division of Corporation Finance Securities and Exchange Commission 100 F Street, N.E. Washington, D.C. 20549 Re: Request for No-Action Letter on behalf of G REIT Liquidating Trust Ladies and Gentlemen: We are writing on...»

«LANGUAGE IN INDIA Strength for Today and Bright Hope for Tomorrow Volume 11 : 8 August 2011 ISSN 1930-2940 Managing Editor: M. S. Thirumalai, Ph.D. Editors: B. Mallikarjun, Ph.D. Sam Mohanlal, Ph.D. B. A. Sharada, Ph.D. A. R. Fatihi, Ph.D. Lakhan Gusain, Ph.D. Jennifer Marie Bayer, Ph.D. S. M. Ravichandran, Ph.D. G. Baskaran, Ph.D. L. Ramamoorthy, Ph.D. Vijay Tendulkar’s Play Kamla is a Symbol of Slavery Pramila Pandey, M.A. (Eng. Lit.), Ph.D. Based on Real News Language in India...»

«Hindoo Holiday by J.R. Ackerley J.R. Ackerley within the 1920s, the younger J. R. Ackerley spent a number of months in India because the own secretary to the maharajah of a small Indian principality. In his journals, Ackerley recorded the Maharajah's superbly eccentric behavior and riddling conversations, and the abnormal shambling daily lifetime of his court. Hindoo vacation is an intimate and extremely humorous account of an incredibly unusual place, and one of many masterpieces of...»

«JETS 45/2 (June 2002) 221–31 BE WARY OF WARE: A REPLY TO BRUCE WARE john sanders* No theological position is immune to question or free from problems. I admit that open theism has questions that we have yet to answer and areas that need further development. Ware’s paper brings out a few of these, and I appreciate his thinking on these points. On the other hand, several of Ware’s criticisms are simply mistaken, while others apply just as much to traditional Arminianism. All criticisms come...»

«Optical Illusions on Roads and Measures for Their Reduction Computational Illusion Team, Alliance for Breakthrough between Mathematics and Sciences, Japan Science and Technology Agency CREST Project July 2013 1 Introduction An optical illusion is an illusionary phenomenon where what we see differs from what exists in reality. In the sense that anyone can fall prey to them, optical illusions are universal. By causing errors in judgment, optical illusions can cause accidents. This is particularly...»

«COUNCIL Thursday, 29 September 2005 at 10.00 a.m. at Bodlondeb, Conwy _ PRESENT: Councillor Mrs. I. L. Groom (Chairman) Councillors Dr. S. H. Anderson, Mrs. S. Ansell, J. P. Bevan, Mrs. A. Booth-Taylor, J. M. A. Boyle, C. C. Cater, D. J. Cowans, D. Glyn Davies, G. O. Edwards, Philip C. Evans J.P., Mrs. J. E. Finch-Saunders, D. A. Hill, A. R. Hinchliff, C. Hughes, R. A. Hughes, R. M. Hughes, R. I. Jenkins, Gareth Jones O.B.E., Mrs. R. W. Jones, W. E. Jones, A. M. Khan, Mrs. S. Lloyd-Jones,...»

«INTERPRETING THE PASSOVER IN THE EXODUS TRADITION AMONGST THE TIV AS A NARRATIVE CONCERNING ORIGIN AND MIGRATION by Jonathan Tyosar Weor Dissertation Presented for the Degree of Doctor of Theology at the University of Stellenbosch South Africa Promoter: Prof Hendrik L Bosman December 2012 Stellenbosch University http://scholar.sun.ac.za DECLARATION I, the undersigned, hereby declare that the work contained in this dissertation is my own original work and that I have not previously in its...»

«Bachelor’s Thesis The Performance of Minimum Variance Portfolios in the Baltic Equity Markets Author: Name and surname: Marius Bausys Email: mbausys@gmail.com Telephone no.: +37067634948 Address: Ateities 77-95, Vilnius, Lithuania, LT-06324 Supervisor: Name and surname: Valerija Gaponenko Email: valerija@behrens.lv Telephone no.: +37129178061 May 2009 Riga The Performance of Minimum Variance Portfolios 2 Abstract This paper applies minimum variance portfolio optimization to the Baltic equity...»

«Monitoring and Research Report on the Gacaca: Testimonies and evidence in the Gacaca Courts With support from the Belgian Ministry of Foreign Affairs, the Direction of Development, and the Cooperation Suisse (DDC) August 2008 PRI Gacaca Report – August 2008 SNJG Ref. / T 008 PRI addresses PRI London Unit 450 The Bon Marche Centre 241-251 Ferndale Road Brixton London SW9 8BJ United Kingdom Tel.: +44 (0) 20 7924 9575 Fax: +44 (0) 20 7924 9697 headofsecretariat@penalreform.org PRI Rwanda BP 370...»





 
<<  HOME   |    CONTACTS
2016 www.dissertation.xlibx.info - Dissertations, online materials

Materials of this site are available for review, all rights belong to their respective owners.
If you do not agree with the fact that your material is placed on this site, please, email us, we will within 1-2 business days delete him.