In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2441

JUAN RAUL GARZA,

Petitioner-Appellant,

v.

HARLEY G. LAPPIN, Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. TH 01-95-C-M/F--Larry J. McKinney, Chief Judge.

Submitted June 8, 2001--Decided June 14, 2001/*


  Before Coffey, Manion, and Diane P. Wood,
Circuit Judges.

  Diane P. Wood, Circuit Judge. 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. sec. 848(e). A jury recommended
that he be sentenced to death on each of
the three sec. 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, 

(5th Cir.
1995), and his petition for writ of
certiorari to the United States Supreme
Court was denied, Garza v. United States,

(1996). Garza then filed a
motion to vacate his sentence under 28
U.S.C. sec. 2255, the federal prisoner’s
substitute for a petition for habeas
corpus, arguing, among other things, that
the introduction at the sentencing phase
of his trial of evidence of five
uncharged murders he allegedly committed
in Mexico violated his constitutional
rights. The trial court denied the
motion, the Fifth Circuit denied his
request for a certificate of
appealability, United States v. Garza,

(5th Cir. 1999), and the
Supreme Court again denied certiorari,
Garza v. United States, 

(1999).

  His avenues for domestic relief thus
exhausted, Garza filed a petition with
the Inter-American Commission on Human
Rights (the Commission or the Inter-
American Commission), an organization
formed under the auspices of the
Organization of American States (OAS). 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 (American Declaration). 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.
sec. 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
hearing. 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. sec. 2241, was in fact a
successive petition under sec. 2255.
Because Garza had not obtained the
permission of the court of appeals to
file a successive sec. 2255 petition, and
in any event, sec. 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, 

,
321 (1990). Whether or not Garza’s
current sec. 2241 petition is technically
"successive" for purposes of statutes
like 28 U.S.C. sec. 2244, it is a later
petition in the broader sense of the
term; we therefore believe that the
Stokes standard is the proper one to
apply to the current request for a stay.
Before this court could grant a stay,
Garza must convince us first that,
contrary to the district court’s
decision, both the district court and we
have jurisdiction to hear his petition,
and second, that the merits of his
petition present a substantial ground on
which relief could be granted. The
question of the district court’s
jurisdiction and the availability of sec.
2241 is a very close one, but in the end
we conclude that on these very unusual
facts Garza’s petition is properly
cognizable under sec. 2241. This
procedural victory is of no avail to
Garza, however, because an examination of
the merits of his petition reveals that
it does not present any substantial
ground for relief. For that reason, we
deny his petition for a stay of
execution.

  Determining whether the district court
had jurisdiction to consider Garza’s
petition requires us to examine the
interaction between 28 U.S.C. sec. 2255
and 28 U.S.C. sec. 2241. In general,
federal prisoners who wish to attack the
validity of their convictions or
sentences are required to proceed under
sec. 2255. Furthermore, in the
overwhelming majority of cases sec. 2255
specifically prohibits prisoners from
circumventing sec. 2255 and challenging
their convictions or sentences through a
habeas petition under sec. 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 sec. 2255, which allows
prisoners to bring sec. 2241 petitions if
they can show that the sec. 2255 remedy
"is inadequate or ineffective to test the
legality of [the prisoner’s] detention."
See 28 U.S.C. sec. 2255, para. 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 sec. 2241, and second, the
proper court in which to file the case
was the one encompassing the district of
confinement (i.e., Southern Indiana), not
the district where the case was tried.

  Since 1996, sec. 2255 has contained a
provision which bars prisoners from
filing second or successive sec. 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.
sec. 2255, para. 8. Garza concedes that
he has already exhausted his right to one
sec. 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 sec. 2255 motions, and so he
apparently cannot proceed under sec.
2255. (Indeed, the Fifth Circuit, which
is the proper court in which to file a
petition for permission to file a
successive sec. 2255 motion, has so
concluded twice. See In re Garza, No. 01-
40473, 

(5th Cir., May 30,
2001); In re Garza, No. 01-40596, decided
June 11, 2001.) The mere fact that
Garza’s petition would be barred as a
successive petition under sec. 2255,
however, is not enough to bring the
petition under sec. 2255’s savings
clause; otherwise, the careful structure
Congress has created to avoid repetitive
filings would mean little or nothing.

  The problem before us is what more is
necessary to satisfy the savings clause.
In In re Davenport, 

(7th
Cir. 1998), this court considered the
interaction between sec. 2255’s savings
clause and the newly-enacted limitations
on successive sec. 2255 petitions, and we
concluded that in most cases, petitions
that were barred under the successive
petition rules could not be brought under
sec. 2241 either. To hold otherwise, we
noted, would be to nullify the
limitations on successive petitions. 

Nevertheless, in Davenport we
recognized that there might be rare
circumstances in which the operation of
the successive petition rules absolutely
prevented the petitioner from ever having
an opportunity to raise a challenge to
the legality of his sentence. In such a
case, sec. 2255 would be genuinely
inadequate or ineffective to test the
legality of his detention. 

We believe that this is one of those
exceptional cases.

  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 sec. 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 sec. 2255 motion, nothing in
the relevant facts or law had changed
since Davenport’s trial. This meant that
Davenport had had an opportunity under
sec. 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 sec. 2255 into an
inadequate remedy, despite the procedural
bar on successive petitions and his
current inability to raise this claim.

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. sec. 924(c). At
the time Nichols was convicted and when
he made his first sec. 2255 petition, the
settled law in this circuit and almost
everywhere else established that
merepossession of a firearm was
sufficient to prove "use" under sec.
924(c). However, after Nichols’s first
sec. 2255 petition had been denied, the
Supreme Court ruled in Bailey v. United
States, 

(1995), that mere
possession was insufficient to establish
use; in Bousley v. United States, 

(1998), the Court clarified that
the Bailey rule applied retroactively to
cases on collateral review. Therefore,
Nichols had a strong argument, which he
could not have made at the time of his
first sec. 2255 petition, that he was
imprisoned for a non-existent crime.

  In spite of the compelling nature of
this kind of claim, the wording of sec.
2255 made it clear that it was not one
that could be raised in a successive sec.
2255 petition. That is because sec. 2255,
para. 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." 

. For that reason, we held that
sec. 2255 was inadequate to test the
legality of Nichols’s conviction, the
savings clause applied, and Nichols could
pursue relief under sec. 2241. 

  Garza’s situation is closely analogous
to that of Nichols. In order to see why
this is so, it is important 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 (OAS
Charter), does not, standing alone, give
rise to individual rights that would have
been directly enforceable during any
stage of his direct appeals or in his
first sec. 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 sec. 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
Europe.) 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, 

(1946). Instead, it
is the type of argument that Davenport
envisions will fall within the savings
clause of sec. 2255. As Garza frames the
argument, it was literally impossible for
him to have raised it at any time earlier
than April 4, 2001, the date of the
Commission’s decision, because the United
States had no judicially-cognizable
treaty obligation not to execute Garza
until that time. The argument therefore
could not have been raised in his direct
appeals or in his first sec. 2255 motion.
On the other hand, the argument clearly
does not rely on newly discovered
evidence or a new rule of constitutional
law, and so as the Fifth Circuit has
properly recognized it cannot be used as
the basis of a successive petition under
sec. 2255. Section 2255 therefore does
not now and has never provided an
adequate avenue for testing Garza’s
present challenge to the legality of his
sentence. This in turn means that Garza
is entitled to raise his argument in a
habeas corpus petition under sec. 2241,
in the district of his incarceration.

  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"
sec. 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 sec. 2255, in which case his
sec. 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, 

(1998),
the petitioner filed a sec. 2255 petition
raising, among other issues, a challenge
to his competency to be executed. The
district court ruled on the bulk of the
issues, but dismissed the competency
challenge as not yet ripe, because no
execution date had been set. After the
execution date was set, the petitioner
renewed his motion in the district court
challenging his competency. The Supreme
Court held that, because the petitioner
had raised the competency challenge at
the first time it was ripe, it should be
considered a first sec. 2255 petition,
not a successive petition. 

This naturally meant that it was not
procedurally barred.

  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"
sec. 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 sec. 2255 motion,
and the district court 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. 

Of course, there was no such
technical procedural dismissal here,
because Garza did not and could not raise
the Commission’s decision at all in the
earlier proceedings--the claim simply did
not exist. Similarly, the Court
characterized the petition in Martinez-
Villareal as a renewal or continuation of
a single application for relief, rather
than as a successive motion. 

No similar characterization can be made
here. Perhaps for these reasons, the
Fifth Circuit recently treated a motion
in which Garza attempted to present this
theory to that court as a successive one
in a one-line order. See In re Garza, No.

. We assume that if that
court had concluded the petition was not
successive, it would have said so and
referred Garza back to the district
court. With law of the case principles in
mind, we take this as establishing the
successive nature of the petition and
hence the proposition that Garza cannot
seek relief under sec. 2255.

  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 benefitting
private parties, do not create private
rights enforceable in domestic courts.
There are, of course, exceptions to this
rule, but an international agreement can
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, 

,
373 (7th Cir. 1985); Restatement (Third)
of the Foreign Relations Law of the
United States, sec. 703 cmt. c, sec. 907
cmt. a. Whether a particular
international agreement provides for
private enforcement is a matter for
judicial interpretation of the agreement.
See 

; Restatement
sec. 907 cmt. a. We can find no
indication in the treaties Garza relies
on that the parties to the treaties
intended for the Inter-American
Commission’s reports to create privately-
enforceable rights, and ample evidence
that they did not.

  The only relevant treaty is the Charter
of the Organization of American States,
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 following 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.

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
(American Convention), 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
Declaration 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 adopted 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 those 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, 

, 380-81 (4th
Cir. 1986). We share the Fourth Circuit’s
doubt, based on the language of the OAS
Charter and the Commission’s Statute,
both of which indicate that the United
States has not obligated itself to be
bound by the Commission’s decisions--or
more accurately not to the degree that
would be required to create privately
enforceable rights. Nothing in the OAS
Charter suggests an intention that member
states will be bound by the Commission’s
decisions before the American Convention
goes into effect. To the contrary, the
OAS Charter’s reference to the Convention
shows that the signatories to the Charter
intended to leave for another day any
agreement to create an international
human rights organization with the power
to bind members. The language of the
Commission’s statute similarly shows that
the Commission does not have the power to
bind member states. The Commission’s
power is only to make "recommendations,"
which, according to the plain language of
the term, are not binding. Garza’s
likelihood of success on the merits can
in no way be described as "substantial"
under these circumstances; indeed, we
think it quite unlikely that
"recommendations to the government of any
member state" could create judicially-
cognizable rights in individuals. By
their very nature, non-binding
recommendations to a government on how to
conduct its affairs would appear to be
addressed to the executive and
legislative branches of the government,
not to the courts.

  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.

FOOTNOTE

/* This opinion was originally released in
typescript.