De Los Santos-Mora v. Bradenham , 194 F. App'x 100 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6131
RICARDO ANTONIO DE LOS SANTOS-MORA,
Plaintiff - Appellant,
versus
ROBERT E. BRADENHAM, II, U. S. Attorney;
BELINDA BAKER; RICHARD D. DAWES,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:05-cv-00717-RAJ)
Submitted: July 26, 2006 Decided: August 10, 2006
Before TRAXLER, GREGORY, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Ricardo Antonio De Los Santos-Mora, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ricardo Antonio De Los Santos-Mora is serving 262 months
in prison for a 1997 drug trafficking conviction. In November
2005, De Los Santos-Mora filed a complaint under the Alien Tort
Statute,1 28 U.S.C. § 1350 (2000), seeking $2,000,000 in damages on
the ground that the arresting officers and the United States
Attorney failed to advise him of his rights under Article 36 of the
Vienna Convention.2 The district court dismissed the action
without prejudice, concluding that De Los Santos-Mora’s action was
barred by the holding in Heck v. Humphrey, 512 U.S. 477 (1994),
because his criminal conviction has not been set aside and a
judgment in this action would necessarily imply the invalidity of
that conviction. De Los Santos-Mora timely appealed.
After the district court issued its decision and while
this appeal was pending, the Supreme Court of the United States
issued its decision in Sanchez-Llamas v. Oregon, 126 S. Ct. 2669(2006). The Supreme Court noted that Article 36 addresses a
foreign national’s entitlement to consular notification concerning
his arrest, but does not implicate any right to consular
intervention or cessation of the criminal investigation and that
violation of any rights under Article 36 would not trigger
1
This statute establishes jurisdiction in the district courts
over a civil action by an alien for a tort committed in violation
of a treaty of the United States. See generally Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004).
2
The Vienna Convention on Consular Relations, Apr. 24, 1963,
art. 36, 21 U.S.T. 77, 101, requires an arresting government to
inform a foreign national who has been arrested of his right to
contact his consul.
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application of the exclusionary rule. Id. at 2681. In light of
Sanchez-Llamas, we find that the district court erred by finding De
Los Santos-Mora’s action to be Heck-barred.3
Accordingly, we vacate the district court’s order
dismissing De Los Santos-Mora’s action without prejudice pursuant
to Heck and remand for further proceedings consistent with this
opinion. De Los Santos-Mora’s motion for appointment of counsel is
denied. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
3
We express no opinion concerning whether Article 36 creates
a private right of action.
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