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