The appendix to Medellin's latest filing is available via SCOTUSblog here. On pages 152a-153a of this document, the Texas trial judge says,

My recollection is that that claim was decided first by a procedural default, but also on the merits by this Court. And that further, the Court of Criminal Appeals essentially rejected that claim also on the merits....

My point is I believe essentially this Court has determined -- this has been mentioned in several opinions as well, that Mr. Medellin gave a confession within three hours of his arrest prior to the consul notification requirement. And that there have been findings of no prejudice.

This is essentially the argument the CJLF filed on behalf of Randy and Sandra Ertman, the parents of one of the girls raped and murdered by Medellin and his gang. The first state habeas proceeding was held after the consulate had actual notice of the case and was actively involved. The only prejudice claimed at that time was the taking of Medellin's confession. But the ICJ held in Avena that notification only needed to be made within a few days of arrest, not immediately and not before interrogation. The Texas trial court held in the first habeas (correctly, based on the evidence and arguments before it), that there had been no prejudice. This decision on the merits was an alternative to its procedural default holding. In footnote 1 of its decision last March, the Supreme Court noted, but did not decide, that any further claims of prejudice made after this point can be considered defaulted. Application of a default rule in this circumstance in not contrary to the Avena decision, which only considered defaults occurring before notification of the consulate.

The Avena case did not consider the particulars of Medellin's case. In their reply brief, Medellin's lawyers claim the ICJ rejected this argument in paragraphs 130-134 and 153(9), but those paragraphs do not address this point or anything specific to Medellin's case.

Much has been made of a letter from Secretary of State Rice and Attorney General Mukasey to Governor Perry. The letter is included in Medellin's appendix to his certiorari petition at pages 80a-81a. It is widely claimed that this letter asks the governor to halt Medellin's execution. It does not. It says, "we respectfully request that Texas take the steps necessary to give effect to the Avena decision with respect to the convictions and sentences addressed therein."

The governor's response (pages 82a-83a of the appendix) is widely represented as defiant. It is not. It says, "I am further advised that if any individual under Texas custody and subject to Avena has not previously received a judicial determination of his claim of prejudice under the Vienna Convention and seeks such review in a future federal habeas proceeding, the State of Texas will ask the reviewing court to address the claim of prejudice on the merits."

But this does not apply to Medellin. He has already received a judicial determination. At the hearing noted above, Medellin's lawyer did not deny that the court had previously determined there was no prejudice. She only said they had new evidence not considered before. But the prior determination was made on a record the consulate helped prepare. Nothing in the Vienna Convention requires a second determination on new evidence when the defendant's country had a full and fair opportunity on the first round.

This long overdue execution should proceed. Doing so does not violate the international obligations of the United States. This murderer has received all the process he is due, and more.

Posts elsewhere on this case include Lyle Denniston at SCOTUSblog, Tony Mauro at BLT, and Howard Bashman at How Appealing.