S. 1194 (112th): Consular Notification Compliance Act of 2011

112th Congress, 2011–2013. Text as of Jun 14, 2011 (Introduced).

Status & Summary | PDF | Source: GPO

II

112th CONGRESS

1st Session

S. 1194

IN THE SENATE OF THE UNITED STATES

June 14, 2011

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To facilitate compliance with Article 36 of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and for other purposes.

1.

Short title

This Act may be cited as the Consular Notification Compliance Act of 2011.

2.

Purpose and statement of authority

(a)

Purpose

The purpose of this Act is to facilitate compliance with Article 36 of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and any comparable provision of a bilateral international agreement addressing consular notification and access.

(b)

Statement of authority

This Act is enacted pursuant to authority contained in articles I and VI of the Constitution of the United States.

3.

Consular notification and access

(a)

In general

As required under, and consistent with, Article 36 of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, and any comparable provision of a bilateral international agreement addressing consular notification and access, if an individual who is not a national of the United States is detained or arrested by an officer or employee of the Federal Government or a State or local government, the arresting or detaining officer or employee, or other appropriate officer or employee of the Federal Government or a State or local government, shall notify that individual without delay that the individual may request that the consulate of the foreign state of which the individual is a national be notified of the detention or arrest.

(b)

Notice

(1)

In general

The consulate of the foreign state of which an individual detained or arrested is a national shall be notified without delay if the individual requests consular notification under subsection (a), and an appropriate officer or employee of the Federal Government or a State or local government shall provide any other consular notification required by an international agreement.

(2)

First appearance

If an appropriate officer or employee of the Federal Government or a State or local government has not notified the consulate described in paragraph (1) regarding an individual who is detained pending criminal charges and the individual requests notification or notification is mandatory under a bilateral international agreement, notification shall occur not later than the first appearance of the individual before the court with jurisdiction over the charge.

(c)

Communication and access

An officer or employee of the Federal Government or a State or local government (including an officer or employee in charge of a facility where an individual who is not a national of the United States is held following detention or arrest) shall reasonably ensure that the individual detained or arrested is able to communicate freely with, and be visited by, officials of the consulate of the foreign state of which the individual detained or arrested is a national, consistent with the obligations described in section 2(a).

(d)

No cause of action

Nothing in this section is intended to create any judicially or administratively enforceable right or benefit, substantive or procedural, by any party against the United States, its departments, agencies, or other entities, its officers or employees, or any other person or entity, including, an officer, employee, or agency of a State or local government.

4.

Petition for review

(a)

In general

(1)

Jurisdiction

Notwithstanding any other provision of law, a Federal court shall have jurisdiction to review the merits of a petition claiming a violation of Article 36(1) (b) or (c) of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, or a comparable provision of a bilateral international agreement addressing consular notification and access, filed by an individual convicted and sentenced to death by any Federal or State court before the date of enactment of this Act.

(2)

Date for execution

If a date for the execution of an individual described in paragraph (1) has been set, the court shall grant a stay of execution if necessary to allow the court to review a petition filed under paragraph (1).

(3)

Standard

To obtain relief, an individual described in paragraph (1) shall make a showing of actual prejudice to the criminal conviction or sentence as a result of the violation. The court may conduct an evidentiary hearing if necessary to supplement the record and, upon a finding of actual prejudice, shall order a new trial or sentencing proceeding.

(4)

Limitations

(A)

In general

A petition for review under this section shall be filed within 1 year of the later of—

(i)

the date of enactment of this Act;

(ii)

the date on which the Federal or State court judgment against the individual described in paragraph (1) became final by the conclusion of direct review or the expiration of the time for seeking such review; or

(iii)

the date on which the impediment to filing a petition created by Federal or State action in violation of the Constitution or laws of the United States is removed, if the individual described in paragraph (1) was prevented from filing by such Federal or State action.

(B)

Tolling

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward the 1-year period of limitation.

(5)

Habeas petition

A petition for review under this section shall be part of the first Federal habeas corpus application or motion for Federal collateral relief under chapter 153 of title 28, United States Code, filed by an individual, except that if an individual filed a Federal habeas corpus application or motion for Federal collateral relief before the date of enactment of this Act or if such application is required to be filed before the date that is 1 year after the date of enactment of this Act, such petition for review under this section shall be filed not later than 1 year after the enactment date or within the period prescribed by paragraph (4)(A)(iii), whichever is later. No petition filed in conformity with the requirements of the preceding sentence shall be considered a second or successive habeas corpus application or subjected to any bars to relief based on pre-enactment proceedings other than as specified in paragraph (3).

(6)

Appeal

(A)

In general

A final order on a petition for review under paragraph (1) shall be subject to review on appeal by the court of appeals for the circuit in which the proceeding is held.

(B)

Appeal by petitioner

An individual described in paragraph (1) may appeal a final order on a petition for review under paragraph (1) only if a district or circuit judge issues a certificate of appealability. A district judge or circuit judge may issue a certificate of appealability under this subparagraph if the individual has made a substantial showing of actual prejudice to the criminal conviction or sentence of the individual as a result of a violation of Article 36(1) of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, or a comparable provision of a bilateral international agreement addressing consular notification and access.

(b)

Violation

(1)

In general

An individual not covered by subsection (a) who is arrested, detained, or held for trial on a charge that would expose the individual to a capital sentence if convicted may raise a claim of a violation of Article 36(1)(b) or (c) of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, or of a comparable provision of a bilateral international agreement addressing consular notification and access, at a reasonable time after the individual becomes aware of the violation, before the court with jurisdiction over the charge. Upon a finding of such a violation—

(A)

the consulate of the foreign state of which the individual is a national shall be notified immediately by the detaining authority, and consular access to the individual shall be afforded in accordance with the provisions of the Vienna Convention on Consular Relations, done at Vienna April 24, 1963, or the comparable provisions of a bilateral international agreement addressing consular notification and access; and

(B)

the court—

(i)

shall postpone any proceedings to the extent the court determines necessary to allow for adequate opportunity for consular access and assistance; and

(ii)

may enter necessary orders to facilitate consular access and assistance.

(2)

Evidentiary hearings

The court may conduct evidentiary hearings if necessary to resolve factual issues.

(3)

Rule of construction

Nothing in this subsection shall be construed to create any additional remedy.

5.

Definitions

In this Act—

(1)

the term national of the United States has the meaning given that term in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)); and

(2)

the term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.