Angel Francisco Breard, a Paraguayan national living in Virginia, was arrested, prosecuted, and sentenced to death for violent crimes. Upon arrest, state authorities advised him of his Miranda rights but did not inform him—contrary to Article 36 of the Vienna Convention on Consular Relations (VCCR)—that he could have the Paraguayan consulate notified of his detention. Breard was tried and convicted in Virginia state court; neither he nor his counsel raised any VCCR claim at trial or on direct appeal. After state proceedings concluded, Breard sought federal habeas relief under 28 U.S.C. § 2254, for the first time arguing a violation of Article 36 based on the State's failure to notify him of his consular rights. The federal district court and the Fourth Circuit rejected relief, deeming the claim procedurally defaulted under Virginia rules because it had not been timely raised in state court. In parallel, the Republic of Paraguay sued in the ICJ and in U.S. federal court, asserting that Virginia's conduct violated the VCCR and requesting a halt to the execution. The ICJ issued provisional measures urging the United States to take all steps necessary to prevent Breard's execution pending its consideration of Paraguay's claim. On the eve of the execution, Breard and Paraguay sought a stay from the U.S. Supreme Court and review of the VCCR issues.
Whether a foreign national's claim under Article 36 of the Vienna Convention on Consular Relations can overcome state procedural default rules and AEDPA limits in federal habeas, and whether ICJ provisional measures can compel a U.S. court to stay an execution notwithstanding domestic procedural bars.
Under the procedural default doctrine, a federal habeas court will not review a claim rejected by a state court on an adequate and independent state procedural ground unless the petitioner shows cause for the default and actual prejudice or demonstrates that failure to consider the claim will result in a fundamental miscarriage of justice. Treaties are the law of the land under the Supremacy Clause, but they are enforced in U.S. courts subject to applicable domestic procedural rules; Article 36(2) of the VCCR contemplates that its rights will be exercised in conformity with the receiving State's laws and regulations. Where a statute and a treaty conflict, the later-in-time statute controls domestic courts (the last-in-time rule). Provisional measures of the ICJ do not displace controlling federal habeas statutes and state procedural rules in U.S. courts absent implementing legislation.
The Court denied a stay of execution and certiorari, holding that Breard's Vienna Convention claim was procedurally defaulted because it was not timely raised in state court and he failed to show cause and prejudice to excuse the default. The Court further held that the ICJ's provisional measures did not bind domestic courts to stay the execution and, in any event, AEDPA's limitations on federal habeas review would control under the last-in-time rule.
1) Procedural default and AEDPA: The Court applied well-established habeas principles (e.g., Coleman v. Thompson) to conclude that Breard's VCCR claim was barred because he failed to raise it in state proceedings. Ignorance of the VCCR by defense counsel did not constitute "cause," as attorney error that does not rise to constitutionally ineffective assistance generally cannot excuse default. On "prejudice," the Court found no concrete showing that consular assistance would likely have altered the outcome of the trial or sentencing; speculation that consular involvement might have changed defense strategy or plea negotiations was insufficient. AEDPA's stringent gatekeeping for federal habeas review further counseled against upsetting the state judgment on an untimely treaty-based claim. 2) Treaty rights and domestic procedure: Assuming without deciding that Article 36 of the VCCR creates individually enforceable rights, the Court emphasized Article 36(2)'s instruction that those rights be exercised in conformity with the receiving State's laws and regulations. State procedural default rules are part of that domestic framework. Therefore, VCCR claims, like other federal claims, can be forfeited if not timely raised and preserved. 3) ICJ provisional measures: Paraguay relied on the ICJ's order indicating provisional measures that the United States take all steps necessary to prevent Breard's execution pending the ICJ's adjudication. The Court declined to give those measures binding domestic effect. It reasoned that, even if the ICJ had authority to indicate provisional measures, U.S. courts remain governed by domestic statutes and procedural doctrines. Under the "last-in-time" rule (e.g., Whitney v. Robertson), if a treaty obligation were thought to conflict with AEDPA's constraints, AEDPA—enacted later—would control in U.S. courts. Compliance with international orders is principally a matter for the political branches. Thus, neither the VCCR nor the ICJ's action supplied a basis to override state default rules or AEDPA's limits to grant a stay. 4) Remedies: The Court underscored that the VCCR does not specify suppression or vacatur as remedies for a violation of consular notification rights and that, in any case, Breard failed to show a substantial likelihood of a different result had consular notice been provided. This remedial skepticism anticipated later holdings that suppression is not an automatic or required remedy for Article 36 violations.
Breard v. Greene is a pivotal case for understanding how U.S. courts treat treaty-based claims in criminal litigation. It affirms that federal habeas review is constrained by domestic procedural doctrines and AEDPA, even when a petitioner invokes a treaty. The decision highlights Article 36(2)'s deference to domestic procedures and applies the last-in-time rule to prioritize later federal statutes over conflicting treaty obligations in U.S. courts. For law students, Breard foreshadows Sanchez-Llamas v. Oregon (2006), which held that the exclusionary rule is not a required remedy for VCCR violations and that procedural default can bar Article 36 claims, and Medellín v. Texas (2008), which held that ICJ judgments are not directly enforceable federal law absent implementing legislation. Together, these cases define the limited domestic judicial remedies for consular-notification violations and clarify the separation of powers in executing international obligations.
Breard v. Greene cements two key propositions: treaty-based rights in criminal cases must be pursued within the ordinary constraints of domestic procedure, and international tribunal measures do not automatically reorder those constraints in U.S. courts. By declining to stay an execution based on a late-raised VCCR claim and ICJ provisional measures, the Court underscored the primacy of AEDPA and the procedural default doctrine in federal habeas practice.