Attorneys must advise clients of treaty

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Attorneys representing non-citizens charged with criminal offenses need to inform their clients that they have the right to consular notification of their arrests under Article 36 of the Vienna Convention.

A Sept. 9 opinion of the Seventh Circuit held that an Illinois attorney rendered ineffective assistance of counsel by failing to do so.

Johnbull K. Osagiede, a Nigerian national, was arrested, pleaded guilty in Illinois federal court to distribution of heroin, and was sentenced to eight years in prison.

The arresting officers failed to inform him of his rights under the convention, and at no point in the proceedings did his attorney inform him of his rights either.

After sentencing, he filed a pro se petition for a writ of habeas corpus, claiming he was denied his right to the effective assistance of counsel.

The district court denied the petition, but the Seventh Circuit reversed, in a decision by Judge Richard D. Cudahy.

The government argued — a position the court called “rather extreme” — that any ineffective assistance of counsel claim based on an Article 36 violation must fail as a matter of law.

The court concluded that this position failed to appreciate the distinction between treaty-based claims and constitutional claims, such as Osagiede’s.

While precedent holds that the treaty does not require suppression as a remedy, the U.S. Supreme Court held in Sanchez-Llamas v. Oregon, 548 U.S. 331, 350, 126 S.Ct. 2669 (2006), that there are other means of vindicating Vienna Convention rights.

A concurrence by Justice Ruth Bader Ginsburg stated that it was “critical” that the defendant in that case failed to raise an ineffective assistance claim, along with a direct Vienna Convention claim. Id., 548 U.S. at 363-364.

Turning to the merits of Osagiede’s claim, the court concluded that his counsel was ineffective for being unaware of his legal rights under Article 36.

The court wrote, “The law was on the books; the violation was clear. Simple computer research would have turned it up.”

Accordingly, the court held that Osagiede satisfied the first prong of his claim — deficient performance — and remanded the case to the district court for an evidentiary hearing on the second —prejudice.

The court noted that, after being apprised of the violation by the arresting officers, the district court may have inquired whether Osagiede knew his rights, or may have even ordered the prosecutor to allow him to contact his consulate.

The court wrote, “Osagiede’s counsel failed to seek this modest remedy. This failure precluded Osagiede from exercising his right to consular assistance and may well have been prejudicial.”

On remand, the court said that Osagiede must show a realistic prospect that the Nigerian consulate could have, and would have, assisted him.