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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, 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 US. 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. § 848(e). A jury recommended that he be

*This opinion is being released in typescript. A
printed version will follow.

2 No. 01-2441

sentenced to death on each of the three § 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, 519 US. 825 (1996). Garza then filed a motion to vacate
his sentence under 28 U.S.C. § 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, 528 US. 1006 (1999).

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
auspices 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.

No. 01-2441 11

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 whethe r the Inter-
American Commission’s decisions create obligations binding
on the United States, although the Fourth Circuit has expressed
doubt that the Commission’ 5 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’ 3
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

12 No. 01-2441

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.

No. 01-2441 3

§ 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. § 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, 495 US. 320, 321 (1990). Whether
or not Garza’s current § 2241 petition is technically
“successive” for purposes of statutes like 28 U.S.C. § 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’ 3 jurisdiction and the availability of
§ 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 § 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.

4 No. 01-2441

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. § 2255 and 28 U.S.C. § 2241. In general,
federal prisoners who wish to attack the validity of their
convictions or sentences 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, 11 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 (i. e. 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, 11 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 for

permission to file a successive § 2255 motion, has so concluded
twice. See In re Garza, No. 01—40473, 

 (5th

No. 01-2441 5

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 § 2255, however, is not enough to
bring the petition under § 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 § 2255’s
savings clause and the newly-enacted limitations on successive
§ 2255 petitions, and we concluded that in most cases, petitions
that were barred under the successive petition rules could not be
brought under § 2241 either. To hold otherwise, we noted,
would be to nullify the limitations on successive petitions. Id. at
608. 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, § 2255 would be genuinely inadequate
or ineffective to test the legality of his detention. Id. at 610-1 1.
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 § 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
had 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

6 No. 01-2441

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, 516 US. 137 (1995), that mere possession was
insufficient to establish use; in Bousley v. United States, 523
US. 614 (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 § 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 § 2255 made it clear that it was not one that could be
raised in a successive § 2255 petition. That is because § 2255,
1] 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 225 5, nor earlier in his
direct appeal.” Davenport, 147 F.3d at 610. For that reason, we
held that § 2255 was inadequate to test the legality of Nichols’s

conviction, the savings clause applied, and Nichols could pursue
relief under § 2241. Id. at 610-11.

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, 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 § 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

No. 01-2441 7

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, 327 US. 678 (1946). Instead, it is the type of argument
that Davenport envisions will fall within the savings clause of
§ 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 §
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 § 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 § 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” § 2255 motion. But there is at least a
possibility that the motion is not successive at all. If his petition

8 No. 01-2441

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, 

(1998), the petitioner filed a § 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 § 2255 petition, not a
successive petition. Id. at 642-45. 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” §
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 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. Id. at 644-
45. 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. Id. at 643. 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. 01-2441 9

No. 01-40596, supra. 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 § 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 F rolova v.
Union of Soviet Socialist Republics, 

, 373 (7th Cir.
1985); Restatement (Third) of the Foreign Relations Law of the
United States, § 703 cmt. c, § 907 cmt. a. Whether a particular
international agreement provides for private enforcement is a
matter for judicial interpretation of the agreement. See F rolova,
761 F.2d at 373; Restatement § 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 (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 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.

10 No. 01-2441

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, 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 pro gressive 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