Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:06-cv-02307-Charles P. Kocoras, Judge.
The opinion of the court was delivered by: Cudahy, Circuit Judge.
Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
Johnbull K. Osagiede, a Nigerian national, pleaded guilty to one count of heroin distribution 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. 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 Government conceded that it had failed to inform Osagiede of his right, in clear violation of the Article 36. Nevertheless, 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.
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 important event in the entire history of the consular institution." LUKE T. LEE, CONSULARLAW AND PRACTICE 26 (2d ed. 1991).
When the United States ratified the treaty in 1969, it became the "supreme Law of the Land." U.S. CONST. 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 receiving 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 detained 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 Immigration 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, CONSULAR NOTI- FICATION AND ACCESS: INSTRUCTION FOR FEDERAL, STATE AND LOCAL ENFORCEMENT AND OTHER OFFICIALS REGARD- ING FOREIGN NATIONALS IN THE UNITED STATES 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 important functions performed by a consulate. LEE, CONSULAR LAW AND PRACTICE 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 WM. & MARY BILL RTS. 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 AM. 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 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 GEO. 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.*fn1
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 investigation. Indeed, the consulate can conduct its own investigations, file amicus briefs and even intervene directly in a proceeding if it deems that necessary. LEE, CONSULAR LAW AND PRACTICE 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."*fn2 Springrose, Strangers in a Strange Land, 14 GEO. IMMIGR. L. J. at 196. Many of the "protective functions" performed by the consulate will come to bear later in the present case.
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 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 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 ...