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Osagiede v. United States - 543 F.3d 399 (7th Cir. 2008)

Rule:

If a foreign national defendant obtains an evidentiary hearing under 28 U.S.C.S. § 2255 on his U.S. Const. amend. VI ineffective legal assistance claim, arising from his counsel's failure to inform him of his Vienna Convention on Consular Relations, art. 36, April 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261, rights, the defendant will have to do more than show a credible indication of the services that the relevant foreign consulate would have provided; he will have to provide evidence sufficient to prove that he was prejudiced by his counsel's failure to notify him of his art. 36 rights. 

Facts:

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. He filed a pro se petition for a writ of habeas corpus in the Northern District of Illinois, claiming, inter alia, that he was denied his Sixth Amendment right to the effective assistance of counsel 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, 1963, 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. 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.

Issue:

Were the government's denial of consular assistance and Osagiede’s counsel’s failure to seek relief as to that violation sufficient to alleged a Sixth Amendment claim?

Answer:

Yes

Conclusion:

The court found reversible error. Osagiede sufficiently alleged a Sixth Amendment claim arising from the government's denial of consular assistance and his counsel’s failure to seek relief as to that violation. Osagiede’s right to consular assistance was clearly established; defense counsel should have known of that right at the time the art. 36 violation occurred. Possible prejudice was shown, as Osagiede might have benefitted if he was given consular assistance in his criminal case.

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