Opinion
02 Civ. 8062 (MBM).
December 29, 2004
JOSE MOYHERNANDEZ, (Petitioner pro se), White Deer, PA.
DAVID N. KELLEY, ESQ., United States Attorney for the Southern District of New York, JEFFREY A. UDELL, ESQ., MEIR FEDER, ESQ., Assistant United States Attorneys, New York, NY.
OPINION AND ORDER
Jose Moyhernandez, a Dominican national, was convicted in February 2000 of the two counts in indictment 97 Cr. 197: conspiracy to distribute crack cocaine, in violation of 21 U.S.C. § 846 and 841(b)(1)(A), and possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). He was sentenced in July 2000 principally to 360 months' imprisonment. His conviction was affirmed by the Court of Appeals in a summary order dated September 6, 2001, United States v. Moyhernandez, 17 Fed. Appx. 62, 2001 U.S. App. LEXIS 19878 (2d Cir. Sept. 6, 2001), and the Supreme Court denied certiorari on January 7, 2002, 534 U.S. 1095 (2002).
In this petition pursuant to 28 U.S.C. § 2255, dated September 5, 2002, Moyhernandez attacks his conviction on three grounds: The government failed to tell him of his right to have the local consul of the Dominican Republic notified of his arrest and detention; the testimony of law enforcement officials who identified his voice on audiotapes introduced at trial should have been excluded as the product of an improperly suggestive process; both his trial counsel and his appellate counsel were ineffective, trial counsel for failing to raise the two arguments just mentioned and appellate counsel for failing to tax trial counsel with ineffectiveness.
For the reasons set forth briefly below, these arguments are without merit, and accordingly the requested relief is denied and the petition is dismissed.
I.
Habeas corpus "is an extraordinary remedy and will not be allowed to do service for an appeal." Bousley v. United States, 523 U.S. 614, 621 (1998) (internal quotation marks omitted). The court will consider claims of ineffective assistance of counsel not previously raised, which are properly raised in a § 2255 proceeding. See Massaro v. United States, 538 U.S. 500, 509 (2003) ("[F]ailure to raise an ineffective-assistance-of-counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255."). To the extent that any of the claims Moyhernandez now advances was not raised on appeal, petitioner must show "`cause' and `actual prejudice'" for the omission, or that he is "`actually innocent'" of the crimes of which he was convicted. Bousley, 523 U.S. at 622 (quoting Murray v.Carrier, 477 U.S. 478, 485, 496 (1986)). Cause is "something external to the petitioner" which "cannot fairly be attributed to him . . . [a]ttorney ignorance or inadvertence is not `cause'."Coleman v. Thompson, 501 U.S. 722, 753 (1991) (emphasis omitted). With respect to Moyhernandez's claims based on the Vienna Convention and, to the extent he did not raise it on direct appeal, the alleged impropriety of admitting the voice identification evidence, Moyhernandez offers no showing of cause for his previous failure to raise these issues. Nor has he made any showing that he is actually innocent. Accordingly, the claims Moyhernandez advances here that were not previously raised, other than certain claims with respect to the adequacy of trial and appellate counsel, are procedurally barred.
II.
Even if it were not procedurally barred, Moyhernandez's consular notification claim would fail because it is without merit. Article 36 of the Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, T.I.A.S. No. 6820, requires a host state to notify the consul of a foreign state when a national of that foreign state is arrested. The United States is a signatory to that treaty. However, that treaty creates no fundamental rights for a foreign national. See Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994). Generally, "there is a strong presumption against inferring individual rights from international treaties." United States v. De la Pava, 268 F.3d 157, 164 (2d Cir. 2001). The Vienna Convention was meant to protect the rights of states to care for their nationals traveling abroad, not to protect the rights of individuals. See id. at 164-65. Failure to notify the consul of a defendant's home country of the defendant's arrest is not a basis for dismissing an indictment. Id. at 165-66. Neither should it be the basis for reversing a conviction otherwise lawful, and it will not be here.
III.
A variation on Moyhernandez's claim with respect to the admissibility of the voice identification evidence was pressed on direct appeal, where Moyhernandez urged the Court of Appeals to adopt a stricter standard for admitting recordings in a foreign language where translations and not the tapes themselves are the primary evidence. He also contended that his trial counsel had failed to provide effective assistance insofar as he failed to cross-examine law enforcement witnesses about the voice identification on the transcripts received in evidence.Moyhernandez, 17 Fed. Appx. at 69-70. The Court declined to impose a different standard for foreign language tapes, and rejected Moyhernandez's claim of ineffective assistance, noting that Moyhernandez had disputed the voice attributions both in his testimony and through counsel, and that his attorney may well have decided for strategic reasons not to press the voice identification issue so as to avoid giving law enforcement witnesses an opportunity to reiterate their certainty that the voice on the tapes was Moyhernandez's. Id. at 70-71.
The Court noted specifically that Moyhernandez's arguments with respect to the tapes both at trial and on appeal, "go to the weight of the evidence, not to the threshold question of admission," and that the government "provided adequate foundation to admit the transcripts and the voice identification testimony."Id. at 70, 71. There is no set of rules with respect to voice identification that is comparable to the rules derived fromUnited States v. Wade, 388 U.S. 218 (1967), which bar in-court identification that is the product of unduly suggestive visual identification procedures. Even if there were analogous rules for voice identification, the Court of Appeals' determination with respect to the evidence presented at trial would appear to foreclose Moyhernandez's claim of undue suggestiveness.
IV.
Moyhernandez's appellate counsel did argue that his trial counsel had been ineffective for failure to challenge the admissibility of the voice identification, and the Circuit rejected the argument. That determination bars any such claim here with respect to either counsel. Insofar as Moyhernandez taxes trial and appellate counsel for failure to raise the issue of consular notification, that issue would have conferred no benefit on Moyhernandez for the reasons discussed above. Failure to raise an issue of no moment cannot constitute ineffective assistance by the standard of Strickland v. Washington, 466 U.S. 668 (1984), which requires, inter alia, a showing of prejudice resulting from ineffective representation. Id. at 693-94. Because the treaty requirement of consular notification conferred no rights on Moyhernandez, there can have been no prejudice to him from counsel's failure to raise the issue.
* * *
For the above reasons, the relief Moyhernandez requests is denied, and the petition is dismissed. Because Moyhernandez has made no substantial showing of denial of a constitutional right, and because in my view reasonable jurists could not differ with respect to the result herein, no certificate of appealability will issue.
SO ORDERED.