United States District Court, N.D. Illinois
January 12, 2004.
UNITED STATES ex rel. ANDRES ELKEN-MONTOYA, Petitioner,
KENNETH R. BRILEY, Respondent
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
In 1996, Andres Elken-Montoya was caught transporting over 500
kilograms of cocaine. He was convicted in state court of controlled
substances trafficking, unlawful possession of a controlled substance
with intent to deliver, and unlawful possession of a controlled
substance. He was initially sentenced to 110 years imprisonment and a
$63,000,000.00 street value fine for the trafficking conviction. The
Illinois Appellate Court affirmed Elken-Montoya's conviction, but
remanded the case for a new sentencing hearing. People v.
Elken-Montoya, No. 3-98-0166 (Ill.App. Ct. 2000). Elken-Montoya was
sentenced to a term of 75 years. His petition for direct appeal to the
Illinois Supreme Court was denied. People v. Elken-Montoya, No.
3-98-0166 (Ill. 2000). Elken-Montoya sought post-conviction relief,
contending he was denied effective assistance of counsel. The trial court
denied his petition. The Illinois Appellate Court affirmed. People v.
Elken-Montoya, No. 3-00-0560 (Ill.App. Ct. 2002). Elken-Montoya's
request for leave to appeal to the Illinois Supreme Court was denied.
People v. Elken-Montoya, No. 93883 (Ill. 2002). Pursuant to
28 U.S.C. § 2254, Elken-Montoya petitions for a writ of habeas
He contends his trial counsel's failure to preserve his rights
under the Vienna Convention violated his sixth amendment right to
effective assistance of counsel.
Factual findings of a state trial or appellate court are presumed
correct in a federal habeas proceeding unless the petitioner
rebuts the presumption with clear and convincing evidence.
28 U.S.C. § 2254(e)(1). Elken-Montoya does not challenge the factual
findings of the Illinois Appellate Court. Accordingly, the court adopts the
Illinois Appellate Court's statements of fact.
On November 6, 1995, Elken-Montoya, a Colombian citizen, was driving a
rented motor home on Interstate 80 when he was stopped by Trooper Floyd
Blanks for speeding and improper lane usage. Blanks asked Elken-Montoya
for his driver's license. After Elken-Montoya produced his license,
Blanks asked him for his vehicle registration and to come back to the
squad car. Elken-Montoya complied, accompanying Blanks to the squad car
with a copy of the motor home rental agreement. Inside the squad car,
Blanks advised Elken-Montoya he was issuing him a warning for speeding
and improper lane usage. While writing the warning, he asked
Elken-Montoya why he was having difficulty staying in his lane.
Elken-Montoya stated the wind may have given him problems. Blanks then
asked Elken-Montoya where he was going. Elken-Montoya stated he was on
his way from Florida to Chicago, visiting his girlfriend. Blanks also
asked how many people were with Elken-Montoya in the motor home.
Elken-Montoya responded he was accompanied by five passengers, including
Blanks thought some of Elken-Montoya's responses were suspicious, so he
called for a canine unit. Blanks asked Elken-Montoya for permission to
search the motor home. Elken-Montoya looked surprised, so Blanks repeated
his request. Elken-Montoya replied, "yeah."
Blanks then advised Elken-Montoya a canine unit was on its way. The
canine unit arrived about 40 minutes after Blanks sent out the request.
It had been delayed at another traffic stop. During the wait, two
additional troopers arrived to assist Blanks. Elken-Montoya returned to
the squad car to ask if there was a problem. Blanks explained the cause
of the canine unit's delay, and Elken-Montoya returned to the motor home.
When the canine unit arrived, Blanks informed Elken-Montoya and the motor
home passengers that Elken-Montoya had consented to a search of the
vehicle. He asked the passengers if they had a problem with the search.
The passengers left the motor home without objection. Only Elken-Montoya
spoke up: it was cold outside and he wanted to change from shorts to
Within minutes, the canine officer emerged from the motor home
announcing she had discovered cocaine. Blanks read Elken-Montoya his
Miranda rights in English. Elken-Montoya said he understood his
rights, and Blanks advised him an interpreter would come later to read
the rights in Spanish. After the arrest, Blanks asked Elken-Montoya about
completing a controlled delivery of the cocaine. Elken-Montoya smiled and
said he would like to help, but then with his index finger, made a
slashing gesture across his throat. According to Blanks, he communicated
with Elken-Montoya exclusively in English. Although Elken-Montoya spoke
with a heavy accent and omitted some articles when speaking, he answered
Blanks appropriately and with a high level of comprehension. Other
troopers testified about Elken-Montoya's comprehension of English, as did
Elken-Montoya, his mother and his co-defendants. Each witness' testimony
supported the conclusion Elken-Montoya understood some English,
Elken-Montoya took English classes in Colombia and the United States. The
troopers testified Elken-Montoya
understood English well; one trooper noted Elken-Montoya began
responding to Blanks' questions before the interpreter finished restating
them in Spanish.
Under Article 36(b) of the Vienna Convention on Consular Relations,
April 24, 1963 art. 36(b), 21 U.S.T. 77, citizens of foreign states are
entitled to contact their consulate in the event of detention or arrest.
United States v. Felix-Felix, 275 F.3d 627, 632 (7th Cir.
2001). Elken-Montoya was never advised of his right to contact
the Colombian Consulate. Elken-Montoya, No. 3-00-0560 at 6-8.
Elken-Montoya maintains his attorney's failure to preserve his rights
under the Vienna Convention violated his sixth amendment right to
effective assistance of counsel. On post-conviction appeal, the Illinois
Appellate Court denied this claim, holding Elken-Montoya suffered no
prejudice from his attorney's failure to protect this right. Id.
An attorney's performance is constitutionally defective if it falls
below an objective standard of reasonableness and there is a reasonable
probability "but for counsel's unprofessional errors, the result of the
proceeding would have been different." Strickland v. Washington,
466 U.S. 668, 686-88, 104 S.Ct. 2052 (1984). In a habeas
petition, Elken-Montoya has the additional burden of demonstrating the
Illinois Appellate Court applied Strickland in an objectively
unreasonable manner. 28 U.S.C. § 2254(d); see also Holman v.
Gilmore, 126 F.3d 876, 881 (7th Cir. 1997) (state court application
of Strickland accorded deference under § 2254(d)(1)).
Elken-Montoya contends his trial counsel was inadequate for two reasons:
(1) counsel failed to raise or preserve the issue of the state's failure
to advise him of his right to speak with the Colombian Consulate; and (2)
counsel never informed him of his rights under the Vienna Convention.
Elken-Montoya's claim that his trial counsel was inadequate because he
failed to pursue claims based on violations of the Vienna Convention
lacks merit. As the Illinois Appellate Court concluded, Elken-Montoya
suffered no prejudice from his attorney's failure to seek suppression of
the search of the mobile home based on Blank's failure to apprise him of
his rights under the Vienna Convention. Elken-Montoya, No.
3-00-0560, p, 6-8. Elken-Montoya received and understood Miranda
warnings. See United States v. Chaparro-Alcantara, 37 F. Supp.2d 1122,
1126 (C.D.Ill. 1999) (Miranda warnings dispel prejudice).
Moreover, the evidence obtained during the search of Elken-Montoya's
mobile home would have been admitted even if trial counsel had raised the
Vienna Convention violation issue. Blank's failure to inform
Elken-Montoya of his right to contact the Colombian Consulate is clearly
not a basis for excluding evidence. Elken-Montoya, No. 3-00-0560
(Ill.App. Ct. April 8, 2002); United States ex rel. Madej v.
Gilmore, No. 98 C 1866, 2002 WL 370222, at *10 (N.D.Ill. March 8,
2002); United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir.
2000) (exclusionary rule not an appropriate remedy for violation of
Article 36 of the Vienna Convention). Nor was Elken-Montoya prejudiced by
trial counsel's alleged failure to prosecute due process claims based on
the state's violation of the Article 36(b) notification provision.
Without some showing that the violation had a material effect on the
outcome of the trial, a conviction may not be overturned because Article
36(b) was violated. Breard v. Greene, 523 U.S. 371, 377,
118 S.Ct. 1352, 1355 (1998), citing Arizona v. Fulminante,
499 U.S. 279, 111 S.Ct. 1246 (1991). In light of these considerations,
Elken-Montoya fails to show the Illinois Appellate Court's application of
Strickland is objectively unreasonable.
Elken-Montoya also claims he was denied effective trial counsel because
his attorney failed to instruct him of his right to contact the Colombian
Consulate. However, Elken-Montoya suffered no prejudice from his
attorney's failure to do so. Even if he were able to exercise his rights
under the Vienna Convention, it is unlikely that assistance by the
Colombian Consulate would have had a material effect on the outcome of
the trial. Although Elken-Montoya generally alleges the presence of a
"language and cultural barrier," he does not assert the Consulate's
involvement was necessary to bridge the gap. Pet. at 5-D. Moreover, his
bare-bones assertion does not establish prejudice. See Taylor v.
United States, 287 F.3d 658, 660-61 (7th Cir. 2002) (specific facts
required to obtain evidentiary hearing). Elken-Montoya fails to allege
any facts suggesting this barrier compromised his defense. He does not
claim an interpreter was necessary, or that the language and cultural
differences between him and his attorneys prevented an effective defense.
Cf. United States v. Cervantes, 1998 WL 719932, at *2-3
(N.D.Ill. July 7, 1998) (specific facts required to demonstrate
language barrier led to ineffective assistance of counsel). Indeed, given
that Elken-Montoya's comprehension of English was sufficient to establish
he voluntarily consented to the search of his mobile home, it is unlikely
his ability to communicate with counsel was significantly impaired.
Furthermore, the evidence of Elken-Montoya's guilt was overwhelming. The
Colombian Consulate could not petition to quash the search of the mobile
home. Elken-Montoya's attorney was not ineffective for failing to advise
his client of his right to contact a diplomatic official "who could do no
more to protect [Elken-Montoya's] rights than counsel himself."
Alcantara v. United States, Nos. 02 C 5991, 99 CR 1254, 2003 WL
102873, at *3 (S.D.N.Y. Jan. 10, 2003). Elken-Montoya has not
Illinois Appellate Court's denial of relief was an unreasonable
application of established federal law. 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 404-5, 120 S.Ct. 1495 (2000).
Elken-Montoya has failed to show the Illinois Appellate Court's denial
of post-conviction relief was an unreasonable application of federal
law. Accordingly, the petition for a writ of habeas corpus is
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