Juan Raul Garza is scheduled to be executed by the federal government on June 19, 2001. Garza was convicted in the U.S. District Court for the Southern District of Texas for five violations of federal drug trafficking laws, operating a continuing criminal enterprise, money laundering, and — most pertinent here — three counts of killing in furtherance of a continuing criminal enterprise, in violation of 21 U.S.C.
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§ 848(e). A jury recommended that he be sentenced to death on each of the thrеe § 848(e) violations, and the district court accepted that recommendation. Garza’s conviction and sentence were affirmed on direct appeal to the Fifth Circuit,
United States v. Flores and Garza,
His avenues for domestic relief thus exhausted, Garza filed a petition with the Inter-American Commission on Human Rights (“the Commission”), an organization formed under the auspiсes of the Organization of American States. He could not have done so at any earlier time, as the Commission requires exhaustion of national remedies before a party may resort to it. Before the Commission, Garza again argued (among other things) that the introduction of the evidence of the Mexican murders violated his rights as set out in the American Declaration of the Rights and Duties of Man. On April 4, 2001, the Commission issued a report stating its position that the introduction of the Mexican murders at the sentencing phase of the trial in effect allowed the government to sentence Garza to death as punishment both for the murders for which he was convicted and for the Mexican murders, crimes with which he was never charged. On this basis, the Commission concluded that Garza’s death sentence was a violation of international human rights norms to which the United States had committed itself.
Shortly after the Commission issued its report, Garza, who is currently incarcerated at the federal penitentiary in Terre Haute, Indiana, filed this habeas corpus petition under 28 U.S.C. § 2241 in the Southern District of Indiana, arguing that the United States was bound by treaty to abide by the Commission’s decision. Accordingly, Garza asked the court to invalidate his death sentence and to order his release from custody unless the government agreed to provide him with a new sentencing healing. Garza also petitioned the court to stay his execution pending resolution of his habeas corpus petition. The district court, however, determined that Garza’s petition, although styled a petition for habeas corpus under 28 U.S.C. § 2241, was in fact a successive petition under § 2255. Because Garza had not obtained the permission of the court of appeals to file a successive § 2255 petition, and in any event, § 2255 petitions can be filed only in the district in which the petitioner’s conviction and sentence were entered, not in the district in which the petitioner is incarcerated, the district court held that it lacked jurisdiction over this petition and dismissed the action. Garza, whose execution date is now less than a week away, has filed a petition with this court seeking a stay of his execution pending his appeal of the district court’s decision.
A stay of execution pending the resolution of a second or successive petition for habeas corpus should be granted only when there are “substantial grounds upon which relief might be granted.”
Delo v. Stokes,
Determining whether the district court had jurisdiction to consider Garza’s petition requires us to examine the interaction between 28 U.S.C. § 2255 and 28 U.S.C. § 2241. In general, federal prisoners who wish to attack the validity of their convictions or sentеnces are required to proceed under § 2255. Furthermore, in the overwhelming majority of cases § 2255 specifically prohibits prisoners from circumventing § 2255 and challenging their convictions or sentences through a habeas petition under § 2241. There is, however, a recognition in the statute that it will not apply in a narrow class of cases. This is the so-called “savings clause” of § 2255, which allows prisoners to bring § 2241 petitions if they can show that the § 2255 remedy “is inadequate or ineffective to test the legality of [the prisoner’s] detention.” See 28 U.S.C. § 2255, ¶ 5, last clause. If Garza can show that his petition fits under this narrow exception, then two consequences follow: first, the district court had jurisdiction to consider his habeas petition under § 2241, and second, the proper court in which to file the case was the one encompassing the district of confinement (ie. Southern Indiana), not the district where the case was tried.
Since 1996, § 2255 has contained a provision which bars prisoners from filing second or successive § 2255 petitions except in two narrow circumstances: (1) when newly discovered evidence would establish by clear and convincing evidence that the prisoner is not guilty of the offense for which he was convicted, or (2) when the petition presents a new rule of constitutional law, made retroactive by the Supreme Court to cases on collateral review, that was unavailable to the petitioner at the time of his first petition. See 28 U.S.C. § 2255, ¶ 8. Garza concedes that he has already exhausted his right to one § 2255 petition, and that his arguments based on the Inter-American Commission’s recent decision do not fall under either of the clauses permitting successive § 2255 motions, and so he apparently cannot proceed under § 2255. (Indeed, the Fifth Circuit, which is the proper court in which to file a petition fоr permission to file a successive § 2255 motion, has so concluded twice. See
In re Garza,
The problem before us is what more is necessary to satisfy the savings clause. In
In re Davenport,
The
Davenport
decision resolved two consolidated appeals, both from district court decisions holding that the appellants’ habeas corpus petitions were barred because they were in effect successive § 2255 petitions. The first appellant, Davenport, argued that his sentence was improperly enhanced on the grounds that he was an armed career criminal. Although Davenport had not made that argument in his direct appeals or in his first § 2255 motion, nothing in the relevant facts or law had changed since Davenport’s trial. This meant that Davenport hаd had an
opportunity
under § 2255, through his first petition, to raise his argument, even if he had procedurally defaulted that opportunity. In that circumstance, the court held, Davenport’s earlier failure to raise the point did not transform § 2255 into an inadequate remedy, despite the procedural bar on successive petitions and his current inability to raise this claim.
Id.
at 609. The second appellant, Nichols, was in a different situation. Nichols had been convicted of using a firearm during a drug offense in violation of 18 U.S.C. § 924(c). At the time Nichols was convicted and when he made his first § 2255 petition, the settled law in this circuit and almost everywhere else established that mere possession of a firearm was sufficient to prove “use” under § 924(c). However, after Nichols’s first § 2255 petition had been denied, the Supreme Court ruled in
Bailey v. United States,
In spite of the compelling nature of this kind of claim, the wording of § 2255 made it clear that it was not one that could be raised in a successive § 2255 petition. That is because § 2255, ¶ 8, expressly restricts the grounds on which the court of appeals may grant permission to proceed with such a claim to two types: (1) newly discovered evidence, or (2) a new rule of
constitutional
law. Nichols had a claim “that he could at no time present in a motion under section 2255, nor earlier in his direct appeal.”
Davenport,
Garza’s situation is closely analogous to that of Nichols. In order to see why this is so, it is imрortant to understand the precise nature of Garza’s claim. According to Garza (and we find this much of his point persuasive), the treaty on which he relies, the Charter of the Organization of American States, does not, standing alone, give rise to individual rights that would have been directly enforceable dur
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ing any stage of his direct appeals or in his first § 2255 petition. (If the treaty itself did support private rights of action, there would have been no impediment to Garza’s raising his treaty-based arguments earlier. If that were the case, there could be no question but that his present effort would be properly characterized as a successive § 2255 petition and it could not proceed in this court.) Similarly, the American Declaration of the Rights and Duties of Man, on which the Inter-American Commission relied, is merely an aspirational document that, in itself, creates no directly enforceable rights. Garza’s argument is that this situation changed once the Commission issued its report specifically determining that Garza’s execution would violate international law;
this
document, he asserts, did create a judicially-enforceable treaty obligation that was both binding on the United States and sufficient to create a private right in him. (His theory invites an analogy to the European Court of Human Rights in Strasbourg, whose judgments create rights enforceable in national tribunals within Euroрe.) Although this argument is extremely problematic on its merits, we must not confuse lack of substantive merit with lack of jurisdiction. It is not so frivolous as to destroy jurisdiction at the threshold, see
Bell v.
Hood,
Before we turn to the merits of Garza’s petition, there is One additional potential wrinkle in the jurisdictional analysis that is worth considering. The foregoing discussion assumes for purposes of analysis that Garza’s petition would be considered a “second or successive” § 2255 motion. But there is at least a possibility that the motion is not successive at all. If his petition could be considered a first petition, of course, there would be no bar to his filing it in the Southern District of Texas under § 2255, in which case his § 2241 petition here would be improper. A recent Supreme Court decision at least raises the possibility that this is the proper resolution of Garza’s jurisdictional quandary. In
Stewart v. Martinez-Villareal,
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At least superficially,
Martinez-Villareal
could suggest that Garza’s petition, which he filed as soon as the Inter-American Commission issued its report, should be considered a “first” § 2255 motion. But Garza’s situation differs from the
Martinez-Villareal
scenario in important respects. First, the Court in
Martinez-Villareal
relied heavily on the fact that the petitioner had actually raised his competency argument in his first § 2255 motion, and the district cоurt had dismissed that issue as not yet ripe. The Court likened this sequence to a dismissal for failure to exhaust state remedies and held that such a technical procedural dismissal does not bar re-filing the claim.
Id.
at 644-45,
On the merits, Garza is not entitled to a stay of his execution unless he can establish that he has presented a substantial ground on which relief could be granted. It is here that Garza’s petition falters. His claim depends on a showing that the Inter-American Commission’s report created an enforceable obligation that the United States was bound by treaty to honor. However, as a general rule, international agreements, even those benefit-ting private parties, do not create private rights enforceable in domestic courts. There are, of course, exceptions to this rule, but an international agreement сan be considered to create judicially-enforceable private rights only where such rights are contemplated in the agreement itself. See
Frolova v. Union of Soviet Socialist Republics,
The only relevant treaty is the Charter of the Organization of American States (OAS), which the United States ratified in 1951, and ratified as amended in 1968. That treaty authorizes the creation of the Inter-American Commission on Human Rights and contains the follоwing relevant provision:
There shall be an Inter-American Commission on Human Rights, whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters. An inter-American convention on human rights shall determine the structure, competence, and procedure of this Commission, as well as those of other organs responsible for these matters.
*925 OAS Charter (Amended) Article 112, 21 U.S.T. 607. The American Declaration of the Rights and Duties of Man, on which the Commission relied in reaching its conclusions in Garza’s case, is an aspirational document which, as Garza admitted in his petition in the district court, did not on its own create any enforceable obligations on the part of any of the OAS member nations. More recently, the OAS has developed an American Convention on Human Rights, which creates an Inter-American Court of Human Rights. Under the American Convention, the Inter-American Court’s decisions are potentially binding on member nations. The rub is this: although the United States has signed the American Convention, it has not ratified it, and so that document does not yet qualify as one of the “treaties” of the United States that creates binding obligations.
Recognizing the distinction between the obligations (or lack thereof) created under the OAS Charter and the American Declaratiоn and those created by the American Convention, the Statute of the Inter-American Commission on Human Rights, which is the governing document for the Commission, sets out two sets of procedures: one for dealing with complaints against member nations that have ratified the American Convention, and another for dealing with complaints against member nations like the United States that have not yet ratified the American Convention. The Statute, which has been adoрted by the OAS General Assembly, gives the Commission the following relevant powers with respect to nations that have not ratified the American Convention:
[T]o make recommendations to the governments of the states on the adoption of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well as appropriate measures to further observance of thоse rights; ...
[T]o pay particular attention to the observance of the human rights referred to in [certain provisions of] the American Declaration of the Rights of Man;
[T]o examine communications submitted to it, ... and to make recommendations to [the government of any member state not a Party to the Convention], when it finds this appropriate, in order to bring about more effective observance of fundamental human rights ....
Statute of the Inter-American Commission on Human Rights, Arts. 18, 20.
No court of appeals has yet decided whether the Inter-American Commission’s decisions create obligations binding on the United States, although the Fourth Circuit has expressed doubt that the Commission’s decisions could have any effect on domestic judicial proceedings.
Roach v. Aiken,
For these reasons, Garza has not presented any substantial ground on which relief could be granted in his habeas corpus petition. We therefore DENY the petition for stay of execution.