Breard v. Greene (1998)

1. Should a stay of execution issue because officers failed to give consular notice under the Vienna Convention?
2. Do forum procedural rules (state default rules, AEDPA) control treaty-based claims not raised earlier?
3. What is the effect of an ICJ provisional order in U.S. domestic courts?

• Forum Procedure: Absent an express treaty rule, the forum’s procedural rules govern implementation (raise errors first in state court).
• AEDPA (1996): Limits evidentiary hearings and federal habeas relief if a claim’s factual basis was not developed in state court.
• Treaty vs Statute: A later Act of Congress can supersede an earlier treaty to the extent of conflict.
• Vienna Convention: Provides consular notification; prejudice must be shown to get relief in many domestic systems.

The Supreme Court denied a stay. It emphasized that, unless a treaty says otherwise, forum procedural rules govern. Breard’s Vienna Convention claim was defaulted in state court. AEDPA then restricted federal review and hearings. The Court also noted that a later statute can supersede an earlier treaty if they conflict. Even assuming a treaty violation, the Court doubted that it would undo a final conviction without a concrete showing of prejudice. Paraguay could not sue under §1983 because it is not a “person.” Three Justices dissented.

• Procedural default bars late-raised treaty claims in federal habeas absent cause and prejudice.
• AEDPA curtails evidentiary hearings when facts were not developed in state court.
• A later statute can prevail over an earlier treaty to the extent of inconsistency.
• ICJ orders did not compel a domestic stay in this posture.

For exams and practice: raise treaty claims early. Show concrete prejudice. Understand the U.S. rule that statutes can trump earlier treaties and how international orders interact with domestic habeas limits.

• Treaty claims follow forum procedure unless the treaty says otherwise.
• AEDPA narrows federal habeas—develop facts in state court.
• Later Congressional statutes can override earlier treaties.
• ICJ orders do not automatically control U.S. stays.

Mnemonic: “Procedure, AEDPA, Treaty-v-Statute, ICJ” → PATI.

1. Procedure: Did you raise the treaty issue in state court?
2. AEDPA: Can you get a hearing or is it barred?
3. Treaty v Statute: Is there a later conflicting statute?
4. ICJ: Does any order alter domestic relief?

Issue: Whether to stay execution based on an unraised Vienna Convention claim and an ICJ order.

Rule: Forum procedural rules apply; AEDPA limits habeas; later statute can supersede earlier treaty.

Application: Claim defaulted; AEDPA blocks further hearing; no concrete prejudice shown; ICJ order not controlling in this context.

Conclusion: Stay denied; conviction stands.

Vienna Convention

Treaty requiring consular notice to foreign nationals on arrest or detention.

Procedural Default

Loss of a claim for failing to raise it at the proper time in state court.

AEDPA

U.S. law limiting federal habeas corpus review of state convictions.