Appeal from the United States District Court for the Central District of Illinois. No. 4:04-cv-4056-Joe Billy McDade, Judge.
The opinion of the court was delivered by: Williams, Circuit Judge.
Before FLAUM, EVANS, and WILLIAMS, Circuit Judges.
Hector Sandoval, a Mexican national, held a man captive at gunpoint following a drug deal gone awry. For this conduct, he was charged with, and a jury convicted him of, kidnapping and using and carrying a gun during a crime of violence. He filed a 28 U.S.C. § 2255 motion arguing that the government violated his rights under Article 36 of the Vienna Convention on Consular Relations by failing to notify Sandoval of his right to access the Mexican consulate following his arrest. Because Sandoval procedurally defaulted his consular notification claim, we affirm the denial of his § 2255 motion. We also decline to expand Sandoval's certificate of appealability because he has not made a substantial showing of the denial of a constitutional right with respect to the performance of his trial counsel.
Hector Sandoval was charged with kidnapping in violation of 18 U.S.C. § 1201(a)(1) and using and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). At Sandoval's trial, Frank Rivas testified that Sandoval's uncle, Marcelo Sandoval ("Marcelo"), kidnapped Rivas because of a drug deal gone bad. The kidnappers snatched Rivas in Iowa and transported him to Marcelo's house in Chicago. Rivas testified that Sandoval held him at gunpoint in Marcelo's house. After receiving a tip from Rivas's wife, Chicago police entered Marcelo's home, rescued Rivas and arrested Marcelo and Sandoval. Sandoval testified at trial that he was not involved in the kidnapping and was at Marcelo's house only to visit Marcelo's children and that he thought Rivas was a houseguest. After the jury convicted Sandoval on both counts, the district court sentenced him to 121 months' imprisonment for kidnapping, a 120-month consecutive term of imprisonment for the firearm charge, and three years' supervised release. Sandoval filed a direct appeal attacking the indictment, venue, the prosecutor's opening and closing statements, and the use of an uncertified interpreter at trial. On October 20, 2003, we affirmed his conviction. United States v. Sandoval, 347 F.3d 627 (7th Cir. 2003).
Sandoval, who does not speak, read, or write English and has a limited education, subsequently filed a pro se § 2255 motion arguing that his attorney provided ineffective assistance by not calling an alibi witness at trial and that the government violated his rights under the Vienna Convention. He also made two other claims that are not at issue in this appeal. A fellow inmate assisted Sandoval in writing the petition. The district court appointed counsel to represent Sandoval, and the new counsel filed an amended § 2255 motion. But after Sandoval complained to the court about his representation the court reinstated Sandoval's pro se motion. The district court denied the pro se motion without an evidentiary hearing, determining that Sandoval procedurally defaulted his Vienna Convention claim because he did not raise it on direct appeal and further found he did not demonstrate prejudice based on the government's failure to notify him that he was entitled to consular assistance. The district court also denied his certificate of appealability ("COA"), but we later granted it. See Sandoval v. United States, No. 04-4056, 2007 WL 4404179, at *2 (C.D. Ill. Dec. 17, 2007); Sandoval v. United States, No. 07-4005 (7th Cir. Apr. 15, 2008) (unpublished order) (Ripple, J.). Circuit Judge Ripple found that Sandoval made a substantial showing of the denial of his rights under the Vienna Convention and ordered the parties to address whether Sandoval defaulted review of this claim. We also appointed counsel to represent Sandoval on appeal.
Sandoval's new counsel presents two arguments: that his rights under the Vienna Convention were violated and that his trial counsel provided ineffective assistance for not remedying the violation and for introducing the sole piece of evidence placing him in Iowa when the kidnapping initially occurred.
A. The District Court Properly Denied Sandoval's § 2255 Motion
When a district court denies a 28 U.S.C. § 2255 motion to vacate, set aside, or correct a criminal conviction and sentence, we review questions of law de novo and findings of fact for clear error. Hall v. United States, 371 F.3d 969, 972 (7th Cir. 2004). The court should grant an evidentiary hearing on a § 2255 motion when the petitioner "alleges facts that, if proven, would entitle him to relief." Id.; § 2255(b).
Sandoval's pro se § 2255 motion claimed ineffective assistance of counsel and launched attacks on the prosecutor and the trial judge. Also, Sandoval argued that the government violated his rights under Article 36 of the Vienna Convention, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261. Sandoval never stated explicitly that his counsel was ineffective for not notifying him of his right to consular notification and assistance or seeking a remedy for the government's failure to notify him.
On appeal, Sandoval contends that his trial counsel provided ineffective assistance of counsel for not informing him of the government's failure to notify him and for not seeking any remedy for the failure at trial. The government concedes that it never notified Sandoval of his right to seek consular assistance and that it never notified the Mexican consulate of Sandoval's detention. However, the government argues that Sandoval procedurally defaulted this claim and did not provide cause for his failure to timely raise the claim at trial or on direct appeal. Additionally, the government maintains that Sandoval never argued in his § 2255 motion that his trial counsel was ineffective for not seeking a remedy and that even if he had, he was not prejudiced by the lack of consular notification.
Article 36 of the Vienna Convention provides that when authorities arrest a foreign national he has the right to contact his consulate and that the government must inform the arrestee of that right. See Jogi v. Voges, 480 F.3d 822, 835 (7th Cir. 2007). When a foreign national is detained, Article 36 imposes three obligations on the arresting authority. The law enforcement agency must: "(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." See Osagiede v. United States, 543 F.3d 399, 402 (7th Cir. 2008) (internal quotation marks omitted). In addition to providing a "cultural bridge" between the ...