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Anthony Madu v. Fort Worth Police Department, et a , 571 F. App'x 341 ( 2014 )


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  •      Case: 13-11137      Document: 00512662071         Page: 1    Date Filed: 06/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-11137                                FILED
Summary Calendar                          June 12, 2014
Lyle W. Cayce
Clerk
ANTHONY C. MADU,
Plaintiff-Appellant
v.
FORT WORTH POLICE DEPARTMENT; JONI WHITE, TDCJ Classification
Manager; GENE MESSER, Dalhart Unit Classification Officer; STEVEN
GORDON; LATEPH ADENIJI; U.S. IMMIGRATION AGENTS, DHS/ICE,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:13-CV-769
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Anthony C. Madu, Texas prisoner # 1533348, appeals the district court’s
dismissal of his
    42 U.S.C. § 1983
     action pursuant to 28 U.S.C. § 1915A(b)(1) as
frivolous and for failure to state a claim upon which relief may be granted. In
his complaint, Madu, a Nigerian citizen, alleged that the defendants violated
his rights under Article 36 of the Vienna Convention by failing to notify the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-11137     Document: 00512662071     Page: 2   Date Filed: 06/12/2014
No. 13-11137
Nigerian Consulate of his arrest and by failing to notify him of his right to
consular access.
Madu argues that the district court erred by dismissing his complaint
because Article 36 of the Vienna Convention created an individually
enforceable right. He maintains that, under Texas law, the violation of Article
36 of the Vienna Convention in his case should have resulted in the
suppression of all of the evidence against him. For the first time on appeal, he
asserts that his guilty plea was constitutionally invalid because his appointed
counsel did not inform him of his right to seek consular assistance and did not
warn him of the immigration consequences of his guilty plea.
We review the dismissal of Madu’s complaint de novo. See Velasquez v.
Woods,
    329 F.3d 420
    , 421 (5th Cir. 2003).        A claim may be dismissed as
frivolous if it does not have an arguable basis in fact or law. Gonzales v. Wyatt,
    157 F.3d 1016
    , 1019 (5th Cir. 1998). A claim may be dismissed for failure to
state a claim upon which relief may be granted if, assuming all well pleaded
facts are true, the plaintiff has not pleaded “enough facts to state a claim to
relief that is plausible on its face.”   In re Katrina Canal Breaches Litig.,
    495 F.3d 191
    , 205 (5th Cir. 2007) (internal quotation marks and citation
omitted).
While the International Court of Justice has held that Article 36 of the
Vienna Convention created an individually enforceable right, that ruling is not
enforceable in domestic courts. See Medellín v. Texas,
    552 U.S. 491
    , 504-12
(2008). We have consistently held that Article 36 of the Vienna Convention did
not create “judicially enforceable rights of consultation between a detained
foreign national and his consular office.” United States v. Jimenez-Nava,
    243 F.3d 192
    , 198 (5th Cir. 2001); see also Leal Garcia v. Quarterman,
    573 F.3d 214
    , 218 n.19 (5th Cir. 2009); Medellín v. Dretke,
    371 F.3d 270
    , 280 (5th Cir.
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No. 13-11137
2004). We cannot consider Madu’s claims that his counsel provided ineffective
assistance by failing to advise him regarding Article 36 or the immigration
consequences of his guilty plea because they were not raised in the district
court. See Leverette v. Louisville Ladder Co.,
    183 F.3d 339
    , 342 (5th Cir. 1999).
Madu’s appeal is without arguable merit and is frivolous. See Howard
v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983). Because the appeal is frivolous, it
is dismissed. See 5TH CIR. R. 42.2.
The dismissal of this appeal as frivolous and the district court’s dismissal
of the complaint both count as strikes under
    28 U.S.C. § 1915
    (g). See Adepegba
v. Hammons,
    103 F.3d 383
    , 387-88 (5th Cir. 1996). Madu is cautioned that if
he accumulates three strikes, he will not be able to proceed in forma pauperis
in any civil action or appeal filed while he is incarcerated or detained in any
facility unless he is under imminent danger of serious physical injury. See
§ 1915(g).
APPEAL DISMISSED; SANCTION WARNING ISSUED.
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