Opinion
Criminal No. 02-195(2) ADM/RLE, Civil No. 04-685 ADM
April 13, 2004
John F. Docherty, Minneapolis, Minnesota, for Plaintiff
Fernando Nambo-Barajas, pro se
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Defendant Fernando Nambo-Barajas's ("Defendant") Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Crim. Docket No. 103; Civ. Docket No. 1]. Defendant seeks an evidentiary hearing to address the issues raised in his Motion. He requests that his 121-month sentence be reduced or set aside on the ground that he received ineffective assistance of counsel in violation of the Sixth Amendment. Additionally, Defendant claims that he was not advised of his rights under Article 36(b) of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 ["Vienna Convention"]. Plaintiff argues that Defendant's ineffective assistance of counsel claim should be dismissed for failure to state a claim upon which relief can be granted, and further, that his claim under the Vienna Convention should be dismissed because it is procedurally defaulted. For the following reasons, Defendant's Motion is denied.
Article 36(b) provides: "if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph."
II. BACKGROUND
Defendant was charged by the United States grand jury on June 18, 2002, with participation in a conspiracy to distribute more than 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846. Indict. [Crim. Docket No. 12]. A hearing was held on July 16, 2002, at which time Magistrate Judge Raymond L. Erickson considered nineteen pretrial motions filed by Defendant's counsel [Crim. Docket Nos. 17-35]. Counsel also submitted an additional 14 page memorandum in support of Defendant's Motion to Suppress eyewitness out-of-court identification [Crim. Docket No. 50]. Defendant was tried by jury before this Court, resulting in a verdict finding Defendant guilty of conspiracy to distribute methamphetamine. Defendant's attorney subsequently filed motions for judgment of acquittal [Crim. Docket No. 83] or a new trial [Crim. Docket No. 84], which were both denied. See Order of 12/23/02 [Crim. Docket No. 94]. On December 18, 2002, this Court sentenced Defendant to 121 months. See Sentencing J. [Crim. Docket No. 96]. Defendant appealed to the Eighth Circuit, which affirmed his conviction and sentence. United States v. Nambo-Barajas, 338 F.3d 956 (8th Cir. 2003) reh'g denied (Sept. 4, 2003). Defendant now brings the instant motion under 28 U.S.C. § 2255 seeking to reduce or vacate his sentence.
III. DISCUSSION
Pursuant to 28 U.S.C. § 2255, a federal prisoner may petition the sentencing court to vacate, set aside, or correct his sentence if it was imposed in violation of the Constitution or the laws of the United States. Defendant alleges that he was denied effective assistance of counsel in violation of the Sixth Amendment, and further that he was not informed of his rights under Article 36(b) of the Vienna Convention on Consular Relations to notify the Mexican Consulate of his arrest. Accordingly, Defendant argues that his sentence should be reduced or set aside.
A § 2255 motion "can be dismissed without a hearing if the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or . . . cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Engelen v. United States, 638 F.3d 238, 241 (8th Cir. 1995). Thus, to determine whether Defendant is entitled to an evidentiary hearing, the validity of his allegations must be evaluated
To establish a claim of ineffective assistance of counsel in violation of the Sixth Amendment, Defendant must prove both that his counsel's performance was deficient and that, as a result of counsel's deficient performance, Defendant suffered prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002). Defendant "faces a heavy burden" to demonstrate that his counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibited under similar circumstances." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted). Prejudice is shown when there exists "a reasonable probability [sufficient to undermine confidence in the outcome] that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Blankenship v. United States. 159 F.3d 336, 337 (8th Cir. 1998) (quoting Strickland, 466 U.S. at 694).
Defendant specifically refers to six examples of his attorney's allegedly deficient performance, none of which either separately or collectively meets his burden under Strickland. In particular, Defendant claims that his counsel:
1. Pressured Defendant to plead guilty.
2. Would not accept phone calls from Defendant or his relatives
3. Failed to provide Defendant with copies of the appeal brief before submitting it to the Court of Appeals.
4. Failed to assist Defendant in obtaining Defendant's car from law enforcement.
5. Failed to make efforts to correct the spellings of Defendant's relatives' last names in Defendant's Pre-Sentence Investigation Report.
6. Failed to investigate Defendant's assertion that Defendant was not informed of his rights under the Vienna Convention or request an evidentiary hearing on the matter.
Defendant's actual assertion is that he communicated to his attorney that "[he] was not informed, by law enforcement authorities, of his right to contact the Mexican consulate as provided by the Vienna Convention." Def.'s Mem. of Law at 13.
Defendant's first five claims of ineffective assistance of counsel are entirely without merit. Whether Defendant was improperly pressured to plead guilty or not, he nevertheless proceeded to trial, demonstrating that he was not prejudiced by any alleged pressure. In addition, Defendant fails to explain how an purported failure to return phone calls, provide Defendant with copies of his appeal brief, assist in effecting the return of Defendant's vehicle, or correctly spell the last names of Defendant's relatives in any way prejudiced his defense.
Defendant's final claim of deficiency could be construed as two distinct claims: first, that his counsel, upon learning that Defendant was not advised of his Vienna Convention rights, was ineffective for declining to investigate the allegations or request an evidentiary hearing on the issue, and second, that law enforcement failed to inform Defendant of his right to contact the Mexican consulate regarding his arrest in the United States.
With regard to the first averment, the Eighth Circuit has not recognized an individually-enforceable right under article 36(b) of the Vienna Convention, and even assuming such a right, Defendant does not establish prejudice. See United States v. Santos, 235 F.3d 1105, 1107 (8th Cir. 2000) (declining to address whether individual right exists; presuming requirement of prejudice). He made no statements and identifies no evidence to suppress. As such, there is no colorable argument that a failure to pursue this matter amounted to deficient performance on the part of Defendant's counsel. Furthermore, the prosecution avers that during discovery Defendant's counsel viewed a videotape of a Spanish-speaking federal agent advising Defendant within hours of his arrest of the Vienna Convention provisions at issue. Pl.'s Mem. at 9 n. 2. Even if failure to request a pre-sentence hearing on this issue was somehow deficient, Defendant presents no evidence suggesting the result of his trial would have been different. Defendant asserts that if he had been given the opportunity, he would have requested that the Mexican Consulate assist in his criminal proceeding and with the translation of the legal documents relating to his case. Defendant does not suggest how the Mexican Consulate would have aided him in such a way that it would have changed the outcome of his trial. Defendant could have pursued the matter of translation without the assistance of the Mexican Consulate. No untranslated documents have been specified. Moreover, the events at issue took place in Minnesota, and Defendant proffers nothing to indicate that the expertise of the Mexican government or its consulate staff would have assisted Defendant in his trial. Defendant's conclusory arguments do not show prejudice.
Interpreting Defendant's claim as an allegation that the government did not inform him of the his rights under the consular notification provisions in the Vienna Convention also fails because it is procedurally defaulted. In order to raise a claim that was not raised on direct appeal, a defendant must demonstrate either good cause for the default and actual prejudice or actual innocence. United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001). Defendant does not allege cause for his failure to raise this issue on direct appeal or any prejudice that resulted from not having been notified, nor does he assert actual innocence. Defendant's claim under the Vienna Convention is therefore procedurally defaulted and, as such, may not be collaterally raised to attack his sentence under 28 U.S.C. § 2255.
IV. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion to Vacate, Set Aside, or Correct his Sentence Pursuant to 28 U.S.C. § 2255 [Civil Docket No. 1; Criminal Docket No. 103] is DENIED.