The opinion of the court was delivered by: Moreno, J.
Petitioner Omar Fuentes Martinez is a convicted capital defendant. We affirmed his judgment on appeal. (People v. Martinez (2003) 31 Cal.4th 673.) In his previous habeas corpus petition in 2002, petitioner contended that he is a Mexican national and that United States law enforcement authorities failed to inform him of his right to consular notification and assistance under the Vienna Convention on Consular Relations April 24, 1963, article 36, 21 U.S.T. 77, T.I.A.S. No. 6820 (the Vienna Convention). On October 13, 2004, we denied the petition, in its entirety, on its merits.
In his previous petition, petitioner noted, but made no argument regarding, the then-recent decision of the International Court of Justice (ICJ) in Avena and Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 (Judgment of Mar. 31) (Avena). In Avena, the International Court of Justice (ICJ) concluded that the United States had violated the Vienna Convention rights of 51 Mexican nationals then on death row, including petitioner, by failing to comply with article 36‟s consular notification requirement (article 36). The ICJ directed the courts of the United States to review the convictions and sentences of those Mexican nationals to determine whether, as a result of the violation, they suffered actual prejudice.
The ICJ specifically forbade applying procedural default doctrines to bar the required review and reconsideration. (Id. at pp. 51-52, ¶¶ 133-134; p. 54, ¶ 141.)
On February 28, 2005, former President George W. Bush issued a Presidential Memorandum directing state courts to give effect to the Avena decision in accordance with general principles of comity.
Based on the Avena decision and the President‟s memorandum, petitioner filed the instant petition asserting that "[t]he Presidential determination regarding state compliance with the rule announced in the ICJ in Avena constitutes a new factual and legal development that was previously unavailable and which entitle[s] petitioner to review of his claim here." On February 14, 2007, we issued an order to show cause why petitioner should not be granted the relief he sought.
While the petition was pending in this court, the United States Supreme Court granted certiorari in Medellin v. Texas (2008) 552 U.S. ___ [128 S.Ct. 1346], a case involving another of the Avena defendants who, like petitioner here, had sought reconsideration of his capital conviction in light of Avena and the Presidential Memorandum. Accordingly, on May 23, 2007, we issued an order directing petitioner to file his reply 30 days after finality of the Supreme Court‟s decision in Medellin, and allowing the Attorney General an opportunity to respond. On March 25, 2008, the Supreme Court issued its opinion in Medellin, holding that neither Avena nor the Presidential Memorandum created binding federal law that would preempt state procedural limitations on the filing of successive habeas corpus petitions.
In light of Medellin, we conclude that petitioner is precluded from renewing his Vienna Convention claim because he previously raised the issue and we denied relief on its merits. Therefore, his petition is successive, and he fails to demonstrate any change of circumstance or the applicability of any exception to the procedural bar of successiveness that would warrant our reconsideration of his claim.*fn1 Therefore, we dismiss the order to show cause and deny the petition.
I. STATEMENT OF FACTS AND THE CASE
The facts are drawn from petitioner‟s automatic appeal. (People v. Martinez, supra, 31 Cal.4th at pp. 678-680.)
Petitioner‟s murder conviction arises from the 1988 murder of Victor Castillo in Riverside County. Castillo and Jose Manuel Meza performed casual labor for petitioner. Petitioner owed back wages to Castillo, Meza, and some other laborers, but when confronted by these men, petitioner showed hostility and reluctance to pay. On at least two occasions, petitioner displayed firearms, including a machine gun. About a week before the murder, Raul Ibarra confronted petitioner and told him to pay "all those guys" the money he owed them. Petitioner pointed a firearm at Ibarra and told him to mind his own business. On the day before Castillo‟s murder, Meza filed a complaint for back wages with the Labor Commissioner.
On the evening of November 4, 1988, Castillo joined Meza, Jose Borquez, and others talking and drinking beer outside the Victoria Street home of Meza‟s brother. Petitioner drove by in his blue Toyota automobile, with his friend, Jose Abel Camacho in the passenger‟s seat. Castillo approached the car, and when he was about five feet away, petitioner shouted "Here you are, motherf--r," raised his AK-47 rifle and fired at Castillo two or three times, killing him.
Petitioner next drove to Ibarra‟s home on Grove Street, where Leonardo Armenta was visiting. Armenta heard gunshots and went outside, where he saw petitioner driving his blue Toyota. Someone else was with him, probably Camacho. As petitioner approached the house, he raised an AK-47 rifle and commenced firing at Armenta, who ran inside. Armenta thought he could distinguish two different rifles being fired. Approximately 45 bullets were fired into the house, but no one was harmed although one bullet missed Armenta by only a foot. This incident led to attempted murder and firearm discharge counts against petitioner.
Officers Kilmer and Lino spotted petitioner‟s car headed away from Riverside. One taillight was out and the car was weaving from side to side. The officers ordered petitioner and Camacho to stop and exit the car. Petitioner was unsteady and appeared to be intoxicated. The officers handcuffed the men and noticed the car‟s left and right rear windows were shattered. They discovered loaded firearms in the car and numerous spent casings scattered throughout. The officers performed a field sobriety test on petitioner and concluded he was intoxicated. The officers arrested and transported petitioner and Camacho to county jail. A follow-up investigation produced additional circumstantial evidence linking petitioner to the crimes.
The defense attempted to cast doubt on the prosecution‟s version of the shootings. Witnesses Meza and Borquez, contrary to their earlier testimony, now indicated they had not seen petitioner shooting at them or Castillo. The defense also called Camacho, who denied that he or petitioner had fired shots at anyone, contrary to his earlier testimony at his own trial that petitioner had fired his rifle at the Victoria Street and Grove Street locations. Camacho testified that on the day of the shootings, petitioner and some other men had spent two hours shooting and drinking beer. Camacho indicated that they had been drinking earlier as well, and that petitioner drank many more beers than the other men. Later that day, petitioner drank more beer and also used cocaine and speed.
Following the guilt verdicts, the prosecution presented uncontradicted evidence on the special circumstance allegation. The jury found true the allegation that petitioner, on May 16, 1980, had been convicted of the murder of Antonio LeFosse, in violation of section 19.02, subdivision (a)(1), of the Texas Penal Code, a special circumstance within the meaning of California Penal Code section 190.2, subdivision (a)(2).
At the penalty phase, the prosecution introduced the evidence underlying petitioner‟s Texas homicide conviction. The prosecution also introduced evidence that petitioner had pointed a firearm at an apartment manager in Riverside, and had possessed a homemade metal "shank" concealed in a mattress cover in his jail cell. The defense introduced evidence of petitioner‟s Mexican background, his poverty and difficult upbringing, and his life in the United States. On rebuttal, the prosecutor introduced evidence of petitioner‟s disciplinary problems in a Texas prison, his transfer to a Mexican prison, and his failure to report to authorities while on limited leave from that prison.
Following the penalty phase, the jury returned a death sentence. As noted, we affirmed the judgment. (People v. Martinez, supra, 31 Cal.4th at p. 740.)
On December 13, 2002, petitioner filed his first petition for writ of habeas corpus in this court. Petitioner‟s sixth claim asserted that law enforcement authorities violated his right to consular notification under the Vienna Convention.
Petitioner stated that he is a Mexican national, a fact of which the police were aware because the booking records report his place of birth as Mexico.
The petition asserted that, notwithstanding their knowledge, police failed to inform petitioner of his right to contact the Mexican consulate. According to a declaration of the Mexican Consul General, had the consulate been informed, it would have treated petitioner‟s case as a "high priority situation," and would have "contact[ed] him as soon as possible in order to explain how the Consulate [might] assist him and his attorney in his defense." Specifically, "Mexican consular officials assist the defense in obtaining evidence, including documentary evidence from Mexico, in locating and transporting witnesses from Mexico to the United States to testify, and in ensuring that the Mexican national has . . . adequate representation and interpretation assistance during the trial. The Consulate attempts to satisfy any particular request from defense attorneys for assistance or information when such assistance or information is within our power to provide."
According to petitioner, during jury selection - which was four years after his arrest - he asked his attorney to request a continuance so he could obtain the assistance of the Mexican consulate. His attorney did so, reluctantly, because he said he had "been able to arrange whatever we thought was necessary without going through the consulate, and because I can make no representation as to what the consulate can do for him in this matter, other than what we are doing - I am doing as his counsel and our office is doing as his counsel." Asked by the court to explain his request, petitioner said he wanted the continuance to "find out what the consulate might be able to do for me." The court denied the request but saw "no problem" with petitioner contacting the consulate.
Petitioner‟s first petition went on to state that, after he was convicted and sentenced, habeas corpus counsel sought the assistance of the Mexican consul in locating witnesses in Mexico that neither the prosecution nor defense had been able to find during trial. One of those witnesses was Leonardo Armenta, the attempted murder victim. Petitioner asserted that Armenta would have testified that he did not recognize petitioner as the shooter, contrary to the testimony he gave at the preliminary hearing, which was read at petitioner‟s trial.
The other potential witness was petitioner‟s brother, Maximino "Chimino" Aviles who, petitioner asserted, would have been able to provide a "wealth of information regarding petitioner‟s background at the penalty phase. For example, Chimino reported the problems petitioner had in learning to speak as a young child; Chimino also witnessed head injuries suffered by petitioner; Chimino remembered petitioner and his siblings being so terrorized by their father‟s cruelty that they urinated and defecated upon his approach; Chimino would also have been able to provide information regarding the multigenerational and widespread alcoholism in the family." Thus, petitioner asserted the failure of the police, the trial court, and petitioner‟s own trial counsel to ensure compliance with the Vienna Convention "was prejudicial to petitioner‟s defense at both guilt and penalty phases of his trial and requires reversal of his convictions and sentence of death." In a subsequent letter, habeas corpus counsel called our attention to the Avena decision but made no specific argument as to its applicability to this case.
In an order filed on October 20, 2004, we stated, in pertinent part: "The petition filed on December 13, ...