Carlos Gutierrez (Gutierrez) spent a year abusing Mailin
Stafford (Mailin), his three-year-old stepdaughter, for sucking on her thumbs. He subjected her to frequent beatings and
spankings, forced her to eat chili peppers and Tabasco sauce and threw her into
freezing cold showers until she began to drown or turn blue. On June 15, 2004, Gutierrez punched her in
the stomach one last time before she crawled onto his lap and died. A three-judge panel sentenced Gutierrez to
On his first appeal, Gutierrez’s death
sentence was affirmed. He then filed a second appeal, seeking a
post-conviction petition for a writ of habeas corpus, which the Second Judicial
District Court of Nevada dismissed on procedural grounds. On appeal, Gutierrez argued that he suffered
actual prejudice because the United States failed to inform him of his right to
consular assistance, which was in violation of Article 36(1)(b) of the Vienna
Convention on Consular Relations (Vienna Convention). Mexico had previously filed suit against the United
States in the International Court of Justice (ICJ) for denying Carlos Avena
Guillen and numerous other Mexican nationals their right to consular access
under the Vienna Convention. In Case Concerning Avena and Other Mexican
Nationals (Avena), the ICJ found
the United States had violated its international legal obligations under the
Vienna Convention by failing to notify the Mexican nationals of their consular
rights. The ICJ directed the United States to
reassess the convictions of Avena and the other Mexican nationals.
the United States Supreme Court in Medell ín v.
state courts were not required to enforce the ICJ decision and that Avena did not preempt state procedural rules that barred prisoners from raising
Vienna Convention claims in successive habeas corpus petitions. However, in his concurrence, Justice Stevens
noted the Court’s decision did not prohibit states from voluntarily choosing to
comply with the foreign court’s decision.
On September 19, 2012, the Supreme Court of Nevada became
only the second court in the United States to reconsider a conviction based on
the ICJ’s decision in Avena. Nevada’s
decision to uphold the ICJ’s mandate in its courts provides important
protection for foreign nationals seeking review of their convictions based on
Vienna Convention violations. The
decision shows a much-needed trend towards greater international cooperation by
the United States. Part II of the Note will explore the facts
and holding of the Nevada Supreme Court in Gutierrez
v. Nevada. Part III will examine the
Vienna Convention, the Avena decision, and previous decisions in applying the procedural rights of the
Vienna Convention to state courts. Part
IV will analyze the implications of Gutierrez on the future of international legal rights in the state court system. Part V will conclude by urging attorneys to
continue pursuing Vienna Convention obligations as a procedural right to which
defendants are entitled.
 See Gutierrez v. State, 112 Nev. 788, 790, 920
P.2d 987, 988 (1996).
 Id. at 791, 920 P.2d at 989.
 Id. at 789,
920 P.2d at 988.
v. State, No. 53506, 2012 WL 4355518 (Nev. Sept. 19, 2012).
 Id. at 2.
 See Avena and Other Mexican Nationals (U.S. v. Mex.), 2004 I.C.J. 128 (Mar. 31).
 Id. at 71.
 Emily Culp, A Father Waits: Medellín v.
Texas and the Application of World Court
Decisions on U.S. Domestic Law, 35 N.C.
J. Int’l L. & Com. Reg. 233, 240 (2009).
 Medellín v. Texas, 552 U.S. 491 (2008).
 See Culp, supra note  Sandra Babcock, Nevada’s Supreme Court Upholds ICJ Ruling on Consular Rights of
Mexicans, Death Penalty Worldwide
(Sept. 25, 2012, 5:04 AM), http://blog.law.northwestern.edu/cihr/2012/09/nevadas-supreme-court-upholds-icj-ruling-on-consular-rights-of-mexicans.html.
 Id. In furtherance of the United States’ disregard
for the Avena decision, Texas
executed Umberto Leal Garcia in 2011, in violation of the ICJ mandate. Id.
 See generally Gutierrez
v. State, No. 53506, 2012 WL 4355518 (Nev. Sept. 19, 2012) (holding that the
defendant suffered actual prejudice due to the lack of consular assistance
resulting from alleged lack of proper notice to consular officials).
Posted by Debolina Das on Mon. November 4, 2013 8:00 AM
Conflict of Laws, International Human Rights