[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 1194 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                S. 1194

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 14, 2011

   Mr. Leahy 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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

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

SEC. 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.

SEC. 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.

SEC. 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.

SEC. 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.
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