Osagiede v. United States, No. 07-1131 (7th Cir. 09/09/2008)

Johnbull K. Osagiede, a Nigerian national, pleaded guilty to one count of heroin distribution and was sentenced to more than eight years in federal prison. Subsequently, he filed a pro se petition for a writ of habeas corpus in the Northern District of Illinois. He claimed that he was denied his Sixth Amendment right to the effective assistance of counsel, see Strickland v. Washington, 466 U.S. 668, (1984), because his lawyer sought no remedy for the Government's failure to notify him of his right to consular assistance under the Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77.

The Government conceded that it had failed to inform Osagiede of his right, in clear violation of the Article 36. Nevertheless, the district court dismissed Osagiede's petition without an evidentiary hearing. The district judge reasoned that any attempt by Osagiede's lawyer to remedy the Article 36 violation would have been futile.

Osagiede then filed a pro se application for a certificate of appealability. We construed Osagiede's petition liberally and determined that he had made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We framed the relevant issue as follows: whether Osagiede's counsel was ineffective for failing to seek a remedy for the Article 36 violation.

I.

The Vienna Convention "is an international treaty that governs relations between individual nations and foreign consular officials." Sanchez-Llamas v. Oregon, 548 U.S. 331, 336, (2006) (Breyer, J., dissenting). When the United States ratified the treaty in 1969, it became the "supreme Law of the Land." U.S. CONST. art. VI, cl. 2.

Article 36 imposes three separate obligations on a detaining authority: (1) inform the consulate of a foreign national's arrest or detention without delay; (2) forward communications from a detained national to the consulate without delay, and (3) inform a detained foreign national of "his rights" under Article 36 without delay. Vienna Convention, art. 36(1)(b), 21 U.S.T. 77, 596 U.N.T.S. 261. Article 36 furthers an essential consular function: "protecting . . . the interests of the sending State and of its nationals." Vienna Convention, arts. 5(a), (e), 21 U.S.T. at 82-83.

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. In these situations, the consulate can serve as a "cultural bridge" between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT'L L. 87, 89-90 (1998). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee's cultural background informs the way he interacts with law enforcement officials and judges.

Obviously, the consulate can also assist in more practical ways. The consulate can provide critical resources for legal representation and case investigation. Indeed, the consulate can conduct its own investigations, file amicus briefs and even intervene directly in a proceeding if it deems that necessary. LEE, CONSULAR LAW AND PRACTICE 125-88. Importantly, the consular officer may help a defendant in "obtaining evidence or witnesses from the home country that the detainee's attorney may not know about or be able to obtain." Springrose, Strangers in a Strange Land, 14 GEO. IMMIGR. L. J. at 196.

II.

On April 25, 2006, Osagiede filed a pro se petition for a writ of habeas corpus in the Northern District of Illinois, contending, inter alia, that he was denied his Sixth Amendment right to the effective assistance of counsel. See Strickland, 466 U.S. 668, 104 S.Ct. 2052. Osagiede asserted that the Government failed to notify him of his right to consult with the Nigerian Consulate as mandated under the Vienna Convention. Osagiede then analogized the right to consular assistance to Miranda rights and claimed that dismissal of the indictment was the remedy that his counsel should have sought. But dismissal would not, in fact, have been an appropriate remedy.

On December 13, 2006, Judge Korcoras denied the petition without holding an evidentiary hearing. Osagiede then filed a pro se application for a certificate of appealability on January 4, 2007, which we must accord a liberal construction. See Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001).

On May 22, 2007, we issued a certificate of appealability to Osagiede, finding that he had made at least a "substantial showing of the denial of a constitutional right" under the Sixth Amendment. 28 U.S.C. § 2253(c)(2). Osagiede is entitled to an evidentiary hearing unless "the files and the records of the case conclusively show that [he] is entitled to no relief." See 28 U.S.C. § 2255(b).

III.

For simplicity's sake, we will discuss the question of individual rights under the deficient performance prong and the question of remedies under the prejudice prong. As we shall explain, we have always assumed that Article 36 confers individual rights, even in the criminal setting, and we stand by that position today.

Before proceeding to our Strickland analysis, however, we must address the Government's argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S.Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002).


More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights.

IV.

To establish an ineffective assistance of counsel claim, Osagiede must show that (1) his counsel's performance fell below an objective standard of reasonableness when measured against "prevailing professional norms," and (2) but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 687-96, 104 S.Ct. 2052.

We review the denial of an evidentiary hearing for abuse of discretion. See Bruce, 256 F.3d at 597. The district court provided purely legal arguments in dismissing Osagiede's petition on the first prong of Strickland; our review is thus largely de novo. An evidentiary hearing on a § 2255 motion is required unless the record "conclusively show[s] that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b).

A.

Osagiede's claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: "All lawyers that represent criminal defendants are expected to know the laws applicable to their client's defense." Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007).

The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede's counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In fact, a reasonable Illinois lawyer would have known that this Court has never held that Article 36 did not create individual rights; instead, we have always assumed that it did. See United States v. Lawall, 231 F.3d 1045, 1048 (7th Cir. 2000. Thus, it was clearly established across the country that either the Vienna Convention created individual rights or courts would proceed as if it did.

We also believe that an Illinois lawyer, in particular, would have known to raise the Article 36 violation. In the wake of Breard, three district courts in Illinois had squarely held that the Vienna Convention created individually enforceable rights. See Madej v. Schoming, No. 98 C 1866, 2002 WL 31386480, at *1 (N.D. Ill. 2002) (Coar, J.).

To summarize, the Vienna Convention was the "Law of the Land" at the time, and 28 C.F.R. § 50.5 required federal agents to comply with it. Professional guidelines instructed lawyers to inform their clients of Article 36 rights. We believe that Illinois criminal defense attorneys representing a foreign national in 2003 should have known to advise their clients of the right to consular access and to raise the issue with the presiding judge.

Of course, counsel may have a strategic reason for not doing so. There is no evidence of a strategic decision in this record. Indeed, there is no evidence that Osagiede's counsel was even aware of Article 36 or the federal regulations enforcing it.

B.

We turn to the prejudice prong. Osagiede must show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694, 104 S.Ct. 2052. We focus, as Osagiede did in his petition, on the attribution of relevant conduct at sentencing, which significantly increased the length of his sentence and which the district judge admitted to be a "close call."

Osagiede's lawyer could have taken a simple action to remedy the Government's violation of his Article 36 rights: she could have informed the foreign national of his rights and raised the violation with the presiding judge. As the Court noted in Sanchez-Llamas, if a defendant "raises an Article 36 violation at trial, a court can make the appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance." Sanchez-Llamas, 548 U.S. at 350, 126 S.Ct. 2669. After being apprised of a potential violation, "a court might . . . inquire as to whether a defendant knows that he may contact his consulate; it might even order that the prosecuting authority allow a foreign national to contact his consulate." Mora v. New York, 524 F.3d 183, 200 n.24 (2d Cir. 2008). The record makes clear that Osagiede's counsel failed to seek this modest remedy. This failure precluded Osagiede from exercising his right to consular assistance and may well have been prejudicial.

If Article 36 has been violated and counsel has failed to remedy the violation, the question becomes whether Osagiede is entitled to an evidentiary hearing to deter-mine whether he has been prejudiced by the failure to invoke the Convention. Two of the major issues to be determined by an evidentiary hearing would be whether the Nigerian consulate could have assisted Osagiede with his case and whether it would have done so. In order to merit an evidentiary hearing, Osagiede must indicate how he proposes to show a realistic prospect of consular assistance and provide some credible indication of facts reasonably available to him to support his claim. The district court, based in major part on these indications, may then exercise its discretion to conduct a hearing.

To show that concrete prejudice flowed from the deprivation of his right to notification, Osagiede must explain the nature of the assistance he might have received had he been alerted to his Article 36 rights. The record does reveal that Osagiede had a special need for services typically within the power of the consulate. Here, at the relevant conduct hearing, the Government presented nine tape recordings that allegedly contained Osagiede's voice. The tapes were difficult to decipher, however, because the speakers had strong Nigerian accents.

In the end, only one of these recordings was properly analyzed. The Nigerian consulate might, perhaps, have provided the funds for a proper analysis of these tapes. The Nigerian Consulate might have been able to identify regional dialects, offer an accurate voice analysis or even translated the wiretaps itself. The Consulate could presumably have also located Lasisi, who was by then in Nigeria, and taken a statement from him.

Osagiede, however, faces another obstacle: having shown that the Nigerian consulate could have assisted him, he must also show that the Nigerian consulate would have assisted him. The decision to render assistance to a foreign detainee, which gives significance to the obligations imposed by the Convention, rests in the discretion of the Nigerian consulate.

Osagiede must provide the district judge with a credible indication that the Nigerian consulate was in fact ready to render assistance in his case. These indications do not necessarily have to come in the form of an actual presentation in advance of the hearing of official documents, statements or affidavits from the Nigerian consulate, although such evidence might well be presented later at the hearing. In the case before us, a credible assertion of the assistance the consulate would have provided would entitle the petitioner to an evidentiary hearing.

We cannot say that the record "conclusively shows" that Osagiede is not entitled to relief on his Sixth Amendment claim. See 28 U.S.C. § 2255(b).

Osagiede's petition is GRANTED, the district court order is VACATED and the case is REMANDED for further proceedings in accord with this opinion.

 

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