As of 6:16 CDT, the Houston Chronicle reports that Texas is waiting to hear from the U.S. Supreme Court before proceeding with the execution of Jose Medellin.
Update: The Supreme Court denied the habeas petition and stay 5-4, and Medellin was executed and pronounced dead at 9:57 CDT.
SCOTUSblog has the opinion is on the Court's website here. The opinion is somewhat cryptic, but it appears that the majority is convinced there was no prejudice, as Judge Cochran wrote in a concurring opinion in the Texas CCA, and as the trial court ruled long ago. The per curiam opinion says,
The beginning premise for any stay, and indeed for the assumption that Congress or the legislature might seek to intervene in this suit, must be that petitioner’s confession was obtained unlawfully. This is highly unlikely as a matter of domestic or international law. Other arguments seeking to establish that a violation of the Convention constitutes grounds for showing the invalidity of the state court judgment, for instance because counsel was inadequate, are also insubstantial, for the reasons noted in our previous opinion. Id., at ___ (slip op., at 5).
The Department of Justice of the United States is well aware of these proceedings and has not chosen to seek our intervention. Its silence is no surprise: The United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access.
The first sentence refers to the original, sole ground of prejudice Medellin claimed in his pre-Avena state habeas petition. The second sentence appears to refer to both the holdings of the ICJ in Avena itself and the Supreme Court in Sanchez-Llamas v. Oregon, rejecting the notion that the Vienna Convention imposes some Miranda-like prerequisite to interrogation.
It is good that this execution has finally been carried out. It would have been better to have a clear statement by the Court that there was no prejudice from the Vienna Convention violation or that there has been a post-notification determination by another court that there was no prejudice, and that is all the United States is obligated to do. The lack of a clear statement of one or both of these grounds will result in unwarranted criticism of the United States.