0sageide, Johnbull v. United States

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1131
JOHNBULL K. O SAGIEDE,
Petitioner-Appellant,
v.
U NITED S TATES OF A MERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-02307—Charles P. Kocoras, Judge.
____________
A RGUED A PRIL 1, 2008—D ECIDED S EPTEMBER 9, 2008
____________
Before C UDAHY, R IPPLE and R OVNER, Circuit Judges.
C UDAHY, Circuit Judge. Johnbull K. Osagiede, a Nigerian
national, pleaded guilty to one count of heroin distribu-
tion and was sentenced to more than eight years in federal
prison. On April 25, 2006, he filed a pro se petition for a
writ of habeas corpus in the Northern District of Illinois.
See 28 U.S.C. § 2255(a). He claimed, inter alia, that he
was denied his Sixth Amendment right to the effective
assistance of counsel, see Strickland v. Washington, 466 U.S.
2 No. 07-1131
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (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, 596 U.N.T.S. 261. The Gov-
ernment conceded that it had failed to inform Osagiede
of his right, in clear violation of the Article 36. Neverthe-
less, the district court dismissed Osagiede’s petition
without an evidentiary hearing. See 28 U.S.C. § 2255(b). 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. See 28 U.S.C. § 2253(c)(1). 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, 126 S. Ct. 2669, 165 L. Ed. 2d 557 (2006) (Breyer, J.,
dissenting). The adoption of the Vienna Convention by
the international community was “the single most impor-
tant event in the entire history of the consular institution.”
L UKE T. L EE, C ONSULAR L AW AND P RACTICE 26 (2d ed. 1991).
No. 07-1131 3
When the United States ratified the treaty in 1969, it
became the “supreme Law of the Land.” U.S. C ONST. art.
VI, cl. 2.
The Convention contains seventy-nine articles, many of
which address the rights of local consulates and consular
officials, the respective obligations of sending and receiv-
ing nations and matters such as tax-exempt status and
legal immunity. Article 36, however, is unique: it is
phrased in terms of the detained foreign national and
his or her individual rights. See Jogi v. Voges (Jogi II), 480
F.3d 822, 831-35 (7th Cir. 2007). 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 de-
tained 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. Although this
third obligation might be more properly termed a “right
to notification,” the right embodied in Article 36 as a
whole is commonly referred to as the “right to consular
assistance.” The right to consular assistance has been
codified in federal regulations promulgated to ensure
compliance with Article 36. See 28 C.F.R. § 50.5 (2003)
(requiring the Department of Justice to comply with
Article 36); 8 C.F.R. § 236.1(e) (2003) (requiring the Immi-
gration and Naturalization Service to comply with Article
36). Further, federal law enforcement agencies have also
long been instructed by the State Department that they
must comply with the requirements of Article 36. See U.S.
Department of State, Pub. No. 10518, C ONSULAR N OTI-
4 No. 07-1131
FICATION AND A CCESS: INSTRUCTION FOR F EDERAL, S TATE
AND L OCAL E NFORCEMENT AND O THER O FFICIALS R EGARD -
ING F OREIGN N ATIONALS IN THE U NITED S TATES 13-15 (Jan.
1998) (“when foreign nationals are arrested or detained,
they must be advised of the right to have their consular
officials notified”).
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. This “protective function” is one of the most impor-
tant functions performed by a consulate. L EE, C ONSULAR
L AW AND P RACTICE 125-88. Foreign nationals who are
detained within the United States find themselves in a
very vulnerable position. Separated from their families
and far from their homelands, they suddenly find them-
selves swept into a foreign legal system. Language
barriers, cultural barriers, lack of resources, isolation and
unfamiliarity with local law create “an aura of chaos”
around the foreign detainees, which can lead them to
make serious legal missteps. Linda A. Malone, From
Breard to Atkins to Malvo: Legal Incompetency and Human
Rights Norms on the Fringes of the Death Penalty, 13 W M . &
M ARY B ILL R TS. J. 363, 392-93 (2004).
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 A M . J. INT’L L. 87, 89-90 (1998).
Of course, we assume that lawyers here are equipped to
deal with language barriers; we also assume they are
familiar with the law. Sometimes, however, the
No. 07-1131 5
assistance of an attorney cannot entirely replace the
unique assistance that can be provided by the consulate.
The consulate can provide not only an explanation of the
receiving state’s legal system but an explanation of how
that system differs from the sending state’s system. See
Linda Jane Springrose, Note, Strangers in a Strange Land:
The Rights of Non-Citizens Under Article 36 of the Vienna
Convention on Consular Relations, 14 G EO. IMMIGR. L. J. 185,
195 (1999). 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.1
Obviously, the consulate can also assist in more
practical ways. The consulate can do more than simply
process passports, transfer currency and help contact
friends and family back home. The consulate can provide
critical resources for legal representation and case inves-
tigation. Indeed, the consulate can conduct its own inves-
tigations, file amicus briefs and even intervene directly
1
Springrose offers Breard v. Pruett, 134 F.3d 615, 622 (4th Cir.
1998), as an example: “Breard was under the false impression
that by confessing and throwing himself on the mercy of the
court, as is the apparent custom in Paraguay, he would be
helping himself rather than assisting the authorities to secure
his conviction and death.” Springrose, Strangers in a Strange
Land, 14 G EO . I MMIGR . L. J. at 195. Springrose also describes
how some foreign detainees may be more likely to make
statements to police officers because of a heightened fear of
police brutality developed in their home countries. Id. at 195-96.
6 No. 07-1131
in a proceeding if it deems that necessary. L EE, C ONSULAR
L AW AND P RACTICE 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.” 2
Springrose, Strangers in a Strange Land, 14 G EO. IMMIGR. L.
J. at 196. Many of the “protective functions” performed
by the consulate will come to bear later in the present case.
II.
On August 30, 2002, Osagiede met a man named
Michael Braxton in a Sears parking lot in Chicago, Illinois.
Osagiede handed Braxton a clear plastic bag containing
25 grams of heroin. Braxton handed him $3,000 in cash.
Unbeknownst to Osagiede, Braxton was already in
trouble with the law and had agreed to cooperate with
federal law enforcement agents. The August 30, 2002
transaction was the second of two “controlled buys” that
2
Sanchez-Llamas provides a striking example. In Sanchez-Llamas,
Bustillo’s defense was that another man, “Sirena,” had commit-
ted the crime. Sirena, however, had fled back to Honduras; he
was nowhere to be found. “Bustillo did not learn of his right
to contact the Honduran consulate until after conviction, at
which time the consulate located additional evidence sup-
porting this theory, including a critical taped confession by
Sirena.” Mark J. Kadish & Charles C. Olson, Sanchez-Llamas v.
Oregon and Article 36 of the Vienna Convention on Consular
Relations: The Supreme Court, The Right to Consul, and Remedia-
tion, 27 M ICH . J. I NT ’L L. 1185, 1218 (2006).
No. 07-1131 7
had been arranged by federal agents who had placed the
participants under surveillance. Federal agents arrested
Osagiede on March 13, 2003. The Government faxed a
consular notification form to the Nigerian Consulate on
the same day. The Government concedes, however, that it
never notified Osagiede of his right to contact the
Nigerian consulate, as Article 36 and federal regulations
require.
Five days later, Osagiede and two co-defendants
(Braxton and Henry Hicks) were charged in a superseding
indictment with four counts of heroin distribution and
conspiracy to distribute heroin in violation of 21 U.S.C.
§§ 841(a)(1), 846. Attorney Kenyatta Tatum served as
Osagiede’s counsel for most of the proceedings. Tatum
never informed Osagiede of his Vienna Convention rights
and never raised the issue with the Government or with
the presiding judge. On January 9, 2004, after Tatum
insisted that Osagiede would face only an eighteen-
month sentence, he pleaded guilty plea to one count of
distributing 25 grams of heroin. See 21 U.S.C. § 841(a)(1).
The base sentencing level for the felony distribution of
25 grams of heroin was 18. The Government, however,
planned to rely on co-defendant testimony and nine
wiretapped recordings to establish that Osagiede had
actually distributed 1,300 grams of heroin in similar drug
transactions. This “relevant conduct” would increase
Osagiede’s base offense level to 32, creating a sentencing
range of 121 to 151 months. In a sentencing proceeding
before Judge Lefkow, Braxton and Hicks both testified
against Osagiede. Braxton, who had closer contact with
8 No. 07-1131
Osagiede than did Hicks, estimated that he had bought
approximately 1,300 grams of heroin from Osagiede.
Braxton also admitted, however, that when he was asked
by federal agents to identify Osagiede in a photo, he
mistook Osagiede for his cousin, Akeem Lasisi, with whom
Braxton also dealt. There were also questions about
whether the phone number called by Braxton to set up
the deals belonged to Osagiede or Lasisi. Lasisi had
apparently returned to Nigeria and was nowhere to be
found. The Government had made little or no effort to
find him, despite his connections to the case.
Because of the inconsistencies in Braxton’s testimony, it
was important that the Government have corroborating
evidence. The voices on the tape recordings, however,
were difficult to decipher because the men had strong
Nigerian accents. Osagiede vigorously denied that it was
his voice on the tapes. Tatum told Osagiede that the only
way to dispute the accuracy of the tapes was to hire an
expert. Osagiede’s family scrounged up the money, and
Tatum sent the tape recordings to a voice analysis expert.
For reasons that are somewhat unclear, the expert was
only able to properly analyze one of the nine tapes. The
analyst determined that the one recording that was prop-
erly analyzed did not contain Osagiede’s voice. Tatum
offered the analyst’s report to the district judge at the
sentencing hearing. Surprisingly, the Government admit-
ted that Osagiede was not the man speaking on the ninth
tape recording. The other recordings, however, appear to
have been allowed in as evidence. The district court then
found by a preponderance of the evidence that Osagiede
had committed the relevant conduct and determined
his base offense level to be 32.
No. 07-1131 9
Osagiede was finally sentenced on May 17, 2005 in a
proceeding before Judge Kocoras. Osagiede explained that
he had fallen in with the wrong crowd since his arrival in
the United States. What he really wanted to do was to
pursue an education—his family has a proud tradition of
academic success—and he vowed to set himself back on
track. The district judge noted that the evidence of
relevant conduct presented “a close call.” That issue,
however, was already decided. The district judge sen-
tenced Osagiede to 97 months in prison, which was below
the recommended U.S. Sentencing Guidelines range.
Osagiede did not appeal.
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 Amend-
ment 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. He argued, correctly, that the
rights conferred by the Vienna Convention were
individual rights. He also argued, correctly, that counsel’s
failure to know the laws applicable to his case could
constitute constitutionally deficient performance. 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. The
10 No. 07-1131
district judge did not revisit the “close call” on relevant
conduct or the problems with the tape recordings. (Judge
Lefkow had been the presiding judge at the relevant
conduct hearing.) Judge Korcoras explained that dismissal
of the indictment had never been recognized as a remedy
for an Article 36 violation. Thus, it would have been
“extremely unlikely that a motion to dismiss the indict-
ment by Osagiede’s attorney would have been successful.”
Osagiede’s counsel was not ineffective for failing to raise
an argument likely to fail.
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); Burris v. United States, 430 F.2d 399,
402 (7th Cir. 1970); Wilson v. Phend, 417 F.2d 1197, 1199 (7th
Cir. 1969). “[W]e can hardly demand of a layman and
pauper who draws his petition behind prison walls the
skill of one trained in the law.” Tompkins v. Missouri, 323
U.S. 485, 487-88, 65 S. Ct. 370, 89 L. Ed. 407 (1945). Pro se
petitioners will, at times, confuse legal theories or draw
the wrong legal implications from a set of facts. See Barnett
v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). But we
do not treat every technical defect as grounds for rejection.
Of course, Osagiede is required to construct his basic
argument and to allege facts sufficient to support it. Here,
Osagiede alleged a recognized and undisputed violation of
his rights, under the federal regulation if not under the
Convention itself. See Galbraith v. United States, 313 F.3d
1001, 1009 (7th Cir. 2002); Aleman v. United States, 878 F.2d
1009, 1012-13 (7th Cir. 1989). Osagiede’s legal argument
No. 07-1131 11
about why his counsel was ineffective may have
referred to the wrong form of relief (dismissal of the
indictment) but he nonetheless alleged the essential fact
that the Government denied him consular assistance and
his lawyer did nothing about it. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). As § 2255(b) suggests, a
district court will sometimes have to “look beyond the
face of the motion” to the record, see Gallo-Vasquez v. United
States, 402 F.3d 793, 798 (7th Cir. 2005), and treat
“unincluded allegations of apparent facts” as part of the
petition, see Williams v. Griswald, 743 F.2d 1533, 1543 (11th
Cir. 1984) (internal quotation omitted). As we shall
explain more fully later, the record shows evidence of
possible prejudice. Thus, the basic structure of
Osagiede’s argument is clear.
On May 22, 2007, we issued a certificate of appeal-
ability 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.
Ineffective assistance of counsel claims are, of course,
brought to vindicate the Sixth Amendment right to coun-
sel, since the right to counsel is the right to effective
counsel. See Strickland, 466 U.S. at 687-96, 104 S. Ct. 2052. It
has long been established that foreign nationals within
the territory of the United States are protected by the
12 No. 07-1131
Sixth Amendment. See Wong Wing v. United States, 163 U.S.
228, 238, 16 S. Ct. 977, 41 L. Ed. 140 (1896). While
Osagiede’s Sixth Amendment claim centers on his
lawyer’s failure to raise an Article 36 violation, we must
bear in mind that he is seeking relief under the Constitu-
tion—not under the Convention. See Sanchez-Llamas,
548 U.S. at 363-64 & n.3, 126 S. Ct. 2669 (Ginsburg, J.,
concurring) (noting that the defendant “did not include
a Vienna-Convention-based, ineffective-assistance-of-
counsel claim along with his direct Vienna Convention
claim in his initial habeas petition”).
The Government has taken the rather extreme posi-
tion that Osagiede’s ineffective assistance of counsel
claim—indeed, any ineffective assistance of counsel
claim based upon an Article 36 violation—fails Strickland
as a matter of law. The Government asserts that no
court has ever recognized that Article 36 confers
individual rights in a criminal proceeding. Even if such
rights were to exist, the Government argues, the Vienna
Convention provides no remedy for their violation.
Instead, the sole means of enforcing the Convention are
through political and diplomatic channels. At oral argu-
ment, the Government even suggested that it would be
inappropriate for us to entertain an ineffective assistance
of counsel claim based on an Article 36 violation. That
would be tantamount to recognizing a remedy for a
Vienna Convention violation, something the Govern-
ment believes to be verboten.
We must take a moment here to unpack the Govern-
ment’s argument. To begin, we believe that the Govern-
No. 07-1131 13
ment has failed to fully appreciate the distinction
between treaty-based claims and constitutional claims.
Because this is a Sixth Amendment ineffective assistance
of counsel claim, it is controlled by Strickland and its
familiar two-prong test. Whether rights and remedies are
available under Article 36 of the Vienna Convention is
relevant only to the extent that it helps prove or disprove
one of these elements. As we know, the distinction
between rights and remedies is often a slippery one. 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. Further, we
believe that there was a viable (and simple) remedy for
the Article 36 violation alleged in this case: counsel could
have informed Osagiede of his right to consular
assistance and the violation could have been raised with
the judge presiding at trial.
Before proceeding to our Strickland analysis, however, we
must address the Government’s argument that Sanchez-
Llamas forecloses foreign nationals from bringing inef-
fective assistance of counsel claims based on Article 36
violations. A close reading of Sanchez-Llamas suggests
otherwise. While the Court rejected the argument that
the treaty itself required suppression as a remedy, the
Court stressed that there were other means of “vindicating
Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at
350, 126 S. Ct. 2669. Specifically, the Court stated that a
defendant could raise an Article 36 violation as a part of
14 No. 07-1131
a broader constitutional challenge, such as a challenge to
the voluntariness of a statement under the Fifth Amend-
ment. 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. In a telling passage, the Court noted
that an attorney’s failure to raise an Article 36 violation
would not be “cause” for overriding a state’s procedural
default rules, unless “the attorney’s overall representation
falls below what is required by the Sixth Amendment.” Sanchez-
Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis
added). The Court went on to explain that the attorneys
in that case were aware of their clients’ Vienna Conven-
tion rights and had made a strategic decision not to
pursue them. Id. Thus, “nothing [had] prevented [the
defendant] from raising an ineffective-assistance-of-
counsel claim predicated on his trial counsel’s failure to
assert the State’s violation of those rights.” Id. at 364 & n.3
(Ginsburg, J., concurring). Because the defendants had
abandoned their ineffective assistance of counsel claims,
however, the issue was not before the Court. 3 Id. at 357 &
n.6. The inclusion of this discussion in the Court’s
opinion was no accident: the viability of ineffective assis-
tance of counsel claims had been discussed extensively
at oral argument. Indeed, Justice Ginsburg stated that it
was “critical” for her that the defendant did not raise
3
This was also the case in Medellin v. Texas (Medellin II), 552
U.S. ___, 128 S. Ct. 1346, 1355 & n.1, 170 L. Ed.2d (2008).
No. 07-1131 15
an ineffective assistance of counsel claim along with his
direct Vienna Convention claim. See Sanchez-Llamas, 548
U.S. at 363-64 & n.3, 126 S. Ct. 2669 (Ginsburg, J., concur-
ring). Through ineffective assistance of counsel claims,
“ ‘full effect’ could [be] given to Article 36.” Id.
Thus, we reject the notion that Sanchez-Llamas forecloses
foreign nationals from bringing ineffective assistance of
counsel claims based on Article 36 violations. In fact,
Sanchez-Llamas appears to express a preference for sub-
suming Vienna Convention claims in broader constitu-
tional attacks, rather than basing relief entirely on the
treaty itself. With this general matter settled, we move
to our Strickland analysis.4
4
We find no problem with Teague v. Lane, 489 U.S. 288, 313, 109
S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Counsel’s duty to know the
applicable law, at least when it matters to his client’s defense,
has been clearly established by Strickland and its progeny. Two
courts of appeals have already held that a reasonably com-
petent attorney would be aware of Vienna Convention rights.
See Murphy, 116 F.3d at 100; Breard, 134 F.3d at 619-20. Even
if this particular application of Strickland had never before
arisen, it would be of little legal consequence: “If the rule in
question is one which of necessity requires a case-by-case
examination of the evidence, then we can tolerate a number of
specific applications without saying that those applications
themselves create a new rule. . . . Where the beginning point
is a rule of this general application, a rule designed for the
specific purpose of evaluating a myriad of factual contexts, it
will be the infrequent case that yields a result so novel that it
forges a new rule, one not dictated by precedent.” Wright v.
(continued...)
16 No. 07-1131
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 scrutinize each claim in light of the totality of
the circumstances, see id., after engaging in an individual-
ized fact-based analysis. Williams v. Taylor, 529 U.S. 362,
391, 120 S. Ct. 1495, 1512, 146 L. Ed. 2d 389, 416 (2000).
We review the denial of an evidentiary hearing for
abuse of discretion. See Bruce, 256 F.3d at 597. When
reviewing a decision to deny a petition for habeas corpus,
we review factual issues for clear error and legal issues
de novo. See Galbraith, 313 F.3d at 1006. 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). Ineffective
4
(...continued)
West, 505 U.S. 277, 308-309, 112 S. Ct. 2482, 120 L. Ed. 2d 225
(1992) (Kennedy, J., concurring). Neither do we consider the
“appropriate accommodations” remedy suggested in Sanchez-
Llamas to be a new rule of criminal procedure: it is simply an
application of common sense.
No. 07-1131 17
assistance claims often require an evidentiary hearing
because they frequently allege facts that the record does
not fully disclose. See Shaw v. United States, 24 F.3d 1040,
1043 (8th Cir. 1994). Further, they generally require an
evidentiary hearing if the record contains insufficient
facts to explain counsel’s actions as tactical, see United
States v. Leonti, 326 F.3d 1111, 1122 (9th Cir. 2003), or
if further factual development might demonstrate preju-
dice, see Ivory v. Jackson, 509 F.3d 284, 298 (6th Cir. 2007).
We examine each of the prongs in turn.
A.
Effective performance by counsel representing a foreign
national in a criminal proceeding is reasonable perfor-
mance “under prevailing professional norms.” Strickland,
466 U.S. at 689, 104 S. Ct. 2052. We must reconstruct the
situation faced by Osagiede’s counsel as it would have
appeared to a reasonably competent lawyer representing
a foreign national in Illinois in 2003. Id. at 689; Lilly v.
Gilmore, 988 F.2d 783, 786 (7th Cir. 1993). We look to
various sources in our attempt to reconstruct the situation
(including statutes, regulations, case law and professional
guidelines) but none of these sources alone is dispositive.
Strickland, 466 U.S. at 688-89, 104 S. Ct. 2052.
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
18 No. 07-1131
laws applicable to their client’s defense.” Julian v. Bartley,
495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266
F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887,
893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th
Cir. 1992). The Government does not contest the fact that
it failed to notify Osagiede of his right to contact his
consulate. This failure to notify violated Article 36 of
the Vienna Convention, as well as federal regulations
promulgated to ensure compliance with Article 36.5 See
28 C.F.R. § 50.5. The law was on the books; the violation
was clear. Simple computer research would have turned
it up.
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 support of its argument, the Government
asserts that no court had ever held that the Vienna Conven-
tion created individually enforceable rights in the criminal
setting. This is simply incorrect: numerous courts had held
by 2003 that Article 36 created individual rights, even in
5
We note that the Government has not addressed the issue of
whether the foreign detainee had a right under 28 C.F.R. § 50.5,
which is a separate matter. See, e.g., United States v. Calderon-
Medina, 591 F.2d 529 (9th Cir. 1979). Instead, it focuses strictly
on the Convention itself.
No. 07-1131 19
the criminal setting.6 The courts that did not hold that
Article 36 created individual rights almost invariably
assumed that Article 36 did confer individual rights.7 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
6
See, e.g., Standt v. City of New York, 153 F. Supp. 2d 417, 427
(S.D.N.Y. 2001); United States v. Briscoe, 69 F. Supp. 2d 738, 745-46
(D. V.I. 1999); United States v. Miranda, 65 F. Supp. 2d 1002, 1007
(D. Minn. 1999); United States v. Torres-Del Muro, 58 F. Supp. 2d
931, 933 (C.D. Ill. 1999); United States v. Hongla-Yamche, 55
F. Supp. 2d 74, 78 (D. Mass. 1999); United States v. Superville, 40
F. Supp. 2d 672, 677-78 (D. V.I. 1999); United States v.
Chaparro-Alcantara, 37 F. Supp. 2d 1122, 1125 (C.D. Ill. 1999);
United States v. $69,530.00 in U.S. Currency, 22 F. Supp. 2d 593,
594 (W.D. Tex. 1998); United States v. Esparza-Ponce, 7 F. Supp. 2d
1084, 1095-96 (S.D. Cal. 1998).
7
See, e.g., Sanchez-Llamas, 548 U.S. at 343, 126 S. Ct. 2669; Breard
v. Greene, 523 U.S. 371, 376, 118 S. Ct. 1352, 140 L. Ed. 2d 529
(1998) (per curiam); United States v. Minjarez-Alvarez, 264 F.3d
980, 986 (10th Cir. 2001); United States v. Chanthadara, 230 F.3d
1237, 1255-56 (10th Cir. 2000); United States v. Cordoba-Mosquera,
212 F.3d 1194, 1196 (11th Cir. 2000); United States v.
Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000) (en banc);
United States v. Li, 206 F.3d 56, 61-62 (1st Cir. 2000); Murphy v.
Netherland, 116 F.3d 97, 99-100 (4th Cir. 1997). The Government
cites only two cases that have held that Article 36 confers no
individual rights. See United States v. Emuegbunam, 268 F.3d 377,
386-95 (6th Cir. 2001): United States v. Jimenez-Nava, 243 F.3d
192, 195-200 (5th Cir. 2001).
20 No. 07-1131
assumed that it did.8 See United States v. Lawall, 231 F.3d
1045, 1048 (7th Cir. 2000); United States v. Chaparro-
Alcantara, 226 F.3d 616, 622 (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.9
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 individ-
ually enforceable rights. See Madej v. Schoming, No. 98 C
1866, 2002 WL 31386480, at *1 (N.D. Ill. 2002) (Coar, J.);
Torres-Del Muro, 58 F. Supp. 2d at 933 (Mills, J.);
Chaparro-Alcantara, 37 F. Supp. 2d at 1125 (Scott, J.). In
Chaparro-Alcantara, the Central District of Illinois held
unequivocally that foreign detainees had “an individual
right to consular notification under Article 36.”
8
We have since held that Article 36 does confer individual
rights. See Jogi II, 480 F.3d at 831-35. We need not discuss Jogi II
at length; that opinion postdated the action here and therefore
would not have been known to Osagiede’s attorney. When
Lawall and Chaparro-Alcantara are read in light of Jogi II, how-
ever, we believe it relatively clear that we have always recog-
nized an individual right under Article 36.
9
Of course, none of this obscures the fact that the United States
Supreme Court has never upheld the Vienna Convention as a
source of individual rights or obviated the possibility that the
Court might, in the future, reach a contrary conclusion. Until
the Court chooses to do so, however, we continue to assume
that such rights exist.
No. 07-1131 21
Chaparro-Alcantara, 37 F. Supp. 2d at 1125. When the
issue of individual rights arose again in Torres-Del Muro,
the Central District stated flatly that it had “already
addressed” the issue in Chaparro-Alcantara and reiterated
that the defendant had “a private right to consular noti-
fication.” Torres-Del Muro, 58 F. Supp. 2d at 933.
After Chaparro-Alcantara and Torres-Del Muro were
decided, the International Court of Criminal Justice
issued two landmark decisions holding that Article 36
did, in fact, provide the detained foreign national with
individual rights. See LaGrand Case (Germany v. United
States), 2001 I.C.J. 466 (June 27, 2001); Case Concerning Avena
& Other Mexican Nationals (Mexico v. United States), 2004
I.C.J. 128 (March 31, 2004). The dramatic legal and political
developments that led up to the LaGrand and Avena cases
drew widespread attention at local, national and interna-
tional levels.10 Shortly after LaGrand, the Northern District
10
See, e.g., Roger Cohen, U.S. Execution of German Stirs Anger,
N.Y. T IMES , March 5, 1999, at A14; Raymond Bonner, U.S. Bid to
Execute Mexican Draws Fire, N.Y. T IMES , October 30, 2000, at A20;
Douglass W. Cassel Jr., Executions Land U.S. in Court, C HICAGO
D AILY L AW B ULLETIN , November 17, 2000, at 5; Marlise Simons,
World Court Finds U.S. Violated Consular Rights of 2 Germans, N.Y.
T IMES , June 28, 2001, at A10; Peter Finn, Court: U.S. broke pact
by executing German in 1999, C HICAGO T RIBUNE , June 28, 2001, at
4; Ginger Thompson, An Execution in Texas Strains Ties With
Mexico and Others, N.Y. T IMES , August 16, 2002, at A6; Marlise
Simons, World Court Tells U.S. to Delay Executing 3, N.Y. T IMES ,
February 6, 2003, at A13; Toby Sterling, World Court orders
(continued...)
22 No. 07-1131
of Illinois ruled that LaGrand had settled the issue of
whether the Vienna Convention conferred individual
rights. See Madej, 2002 WL 31386480, at *1. Its language
was clear: “After LaGrand, . . . no court can credibly hold
that the Vienna Convention does not create individually
enforceable rights.” 1 1 Id. Madej itself was discussed within
the Chicago legal community. See Patricia Manson, U.S.
Judge Expands Rights of Foreigners, C HICAGO D AILY L AW
B ULLETIN, September 26, 2002, at 1. The Government’s
failure to notify Osagiede of his Vienna Convention
rights occurred only months after Madej was handed
down, and Osagiede’s sentencing hearing was held in the
Northern District. In this situation, we believe that the
Article 36 violation should have rung a bell with a rea-
sonable attorney.
Further, at the time of Osagiede’s sentencing, the Illinois
Institute for Continuing Legal Education’s Guide for
Defending Illinois Criminal Cases stated in unequivocal
terms: “Attorneys should advise all non-citizens clients
that they have the right to consular notification of
their arrest under the Vienna Convention and that such
notification request should be made part of any assertion
10
(...continued)
U.S. to stay executions of 3 Mexicans, C HICAGO T RIBUNE , February
6, 2003, at 3.
11
Subsequent decisions have made clear that LaGrand and Avena
did not conclusively settle the issue. See generally Medellin II,
552 U.S. ___, 128 S. Ct. 1346. We focus only on the effect of these
two cases at the time—that is, before Medellin II.
No. 07-1131 23
of rights to silence and counsel . . . . [A]ttorneys represent-
ing non-citizens clients should advise them to invoke the
Vienna Convention rights to the police and prosecutors
at the police station and to the judge at the initial court
appearance and should raise the issue during any motion
to suppress statements.” D EFENDING ILLINOIS C RIMINAL
C ASES § 4.2 (2003). As the Supreme Court has stated,
“[p]revailing norms of practice as reflected in American
Bar Association standards and the like . . . are guides
to determining what is reasonable.” Strickland, at 688-89,
104 S. Ct. 2052.
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. There were hundreds of cases in which courts had
addressed those rights, even in a criminal setting, and
these cases generated a decent amount of fanfare. Indeed,
the district in which Osagiede’s case was being heard had
just ruled that foreign nationals had individual rights
under Article 36. In this climate, 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.12
12
There is a certain irony to the Government’s claim that a
reasonably competent attorney would not have known to
have at least raised an Article 36 violation. Even before Breard,
courts had recognized that Vienna Convention claims were
(continued...)
24 No. 07-1131
Of course, counsel may have a strategic reason for not
doing so. In Sanchez-Llamas, for example, “defense
counsel was the son of Salvadoran diplomats and was
familiar with Article 36 issues, but he decided it would
be better to limit the number of people to whom his client
spoke.” See Kadish & Olson, The Supreme Court, The Right
to Consul, and Remediation, 27 M ICH. J. INT’L L. at 1219.
There is no evidence of a strategic decision in this re-
cord. Indeed, there is no evidence that Osagiede’s counsel
was even aware of Article 36 or the federal regulations
enforcing it. While the Government claims that Osagiede’s
counsel used Lasisi as a “specter” to cast doubt on the
Government’s case, we have reviewed that portion of the
sentencing transcripts and we are not persuaded. Ineffec-
tive assistance claims generally require an evidentiary
hearing if the record contains insufficient facts to explain
counsel’s actions as tactical. See Leonti, 326 F.3d at 1122.
Such is the case here.
B.
We turn to the prejudice prong. Osagiede must show that
“but for counsel’s unprofessional errors, the result of the
12
(...continued)
commonplace and that they would be deemed waived if they
were not raised by counsel. See Murphy, 116 F.3d at 100 (“any
reasonably diligent search by [defendant’s] counsel . . . would
have revealed the existence and applicability (if any) of the
Vienna Convention”); Breard, 134 F.3d at 619-20 (“a reasonably
diligent attorney would have discovered the applicability of
the Vienna Convention to a foreign national defendant”).
No. 07-1131 25
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.”
As we promised, we will now address the Government’s
argument that Osagiede could not show prejudice be-
cause there is no remedy for an Article 36 violation. In
support, the Government relies on a series of cases that
have held that suppression of evidence and dismissal
of the indictment are inappropriate remedies for an
Article 36 violation. The Government, however, has
failed to show why these cases are relevant here. In their
brief before the district court, the Government noted
that Osagiede had not made any post-arrest statements
and that no evidence was obtained as a result. The sup-
pression cases are thus inapposite, see, e.g., Li, 206 F.3d
at 61, as are the cases involving dismissal of the indict-
ment, see, e.g., Corboda-Mosquera, 212 F.3d at 1196. The
Government’s contention that these cases show a general
tendency of courts to “reject attempts to enforce the
Vienna Convention” is too vague to be helpful.
There is, however, a more fundamental flaw in the
Government’s position on remedies. The Government
seems to assume that the only recourse available to
Osagiede’s counsel would have been to file a motion
for suppression or for dismissal, or perhaps to let the
proceedings run their course and then raise the Article 36
violation on appeal. The Government focuses inordinately
26 No. 07-1131
on backward-looking remedies and ignores the fact that
the trial court judge is in a unique position to remedy an
Article 36 violation before prejudice has occurred. Cf.
Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner,
J., concurring) (“The provisions of the Convention
should be implemented before trial when they can be
appropriately addressed”). Osagiede’s lawyer could have
taken a simple action to remedy the Government’s viola-
tion of his Article 36 rights: she could have informed
the foreign national of his rights and raised the viola-
tion with the presiding judge. As the Court noted in
Sanchez-Llamas, if a defendant “raises an Article 36 viola-
tion at trial, a court can make the appropriate accom-
modations 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 author-
ity 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
No. 07-1131 27
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 depri-
vation 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 trans-
lated the wiretaps itself. The Consulate could presumably
have also located Lasisi, who was by then in Nigeria,
and taken a statement from him. See, e.g., supra, n.3 (de-
scribing the evidence gathered by the Mexican consulate
in Sanchez-Llamas). Lasisi was, after all, the man who had
been previously mistaken for Osagiede and the man who
may have been speaking on the tape recordings. The
Nigerian Consulate appears to have been well situated
28 No. 07-1131
and well equipped to provide Osagiede with this kind of
assistance. Thus, Osagiede has gone a long way toward
showing that he deserves an evidentiary hearing.
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. Perhaps the Nigerian
consulate does not get involved in criminal matters;
perhaps it would not have been persuaded that Osagiede
deserved its assistance; perhaps it would have declined
for other reasons. 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 con-
sulate would have provided would entitle the petitioner
to an evidentiary hearing.1 3
13
Of course, if Osagiede obtains an evidentiary hearing, he will
then have to do more than show a credible indication of the
services the consulate would have provided. He will have to
provide evidence sufficient to prove he was prejudiced by the
failure to notify him of his Article 36 rights.
No. 07-1131 29
V.
We cannot say that the record “conclusively shows” that
Osagiede is not entitled to relief on his Sixth Amend-
ment claim. See 28 U.S.C. § 2255(b). Osagiede’s petition is
G RANTED , the district court order is V ACATED and the
case is REMANDED for further proceedings in accord with
this opinion.
9-9-08