Opinion
Case No. 99 C 7034
January 31, 2001
MEMORANDUM OPINION AND ORDER
Before the court is Oscar Arguijo's request for a Certificate of Appealability ("COA") pursuant to 28 U.S.C. § 2253(c) for his appeal pursuant to 28 U.S.C. § 2255.
BACKGROUND
On May 26, 1998, Arguijo was indicted for an October 1997 robbery of the Harris Bank in Chicago. On July 23, 1998, Arguijo pled guilty to the indictment, and he was sentenced on October 22, 1998. Arguijo filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, which this Court denied on July 7, 2000. On September 5, 2000, Arguijo filed a notice of appeal challenging the order denying his motion to vacate, set aside or correct his sentence pursuant to § 2255. On October 27, 2000, this Court notified Arguijo that to appeal the denial of his motion pursuant to § 2255 he was required to file a motion for a COA, which he filed on December 6, 2000.
DISCUSSION
A COA is required to take an appeal to the Court of Appeals from a final order in a proceeding under Section 2255. 28 U.S.C. § 2252(c). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); See Williams v. United States, 150 F.3d 639, 641 (7th Cir. 1998).
In the Court's July 7, 2000 Memorandum Opinion and Order, the Court held that Arguijo's § 2255 motion was procedurally defaulted because he failed to raise his constitutional challenges on direct appeal and was thus barred from raising those issues in a habeas proceeding. See Memorandum Opinion and Order, July 7, 2000. See also Theodorou v. United States, 887 F.2d 1336, 1339-40 (7th Cir. 1989) ("a district court cannot reach the merits of an appealable issue in a section 2255 proceeding, unless that issue has been raised in a procedurally appropriate manner.") We further found that Arguijo neither demonstrated good cause for and prejudice from his failure to bring an appeal, see Theodorou, 887 F.2d at 1339, nor that the failure to consider his claims would result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 724 (1991).
In cases where a district court denies a petition on procedural grounds without reaching the prisoner's underlying constitutional claim "a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 120 U.S. 1595, 1604 (2000). Furthermore, "[w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. Thus, the court is "allow[ed] and encourage[d]" to first resolve the procedural issues to determine if they dispose of the matter before addressing the constitutional issue. Id.
Giving Arguijo's motion for relief from his sentence pursuant to § 2255 a broad reading, he argued that ineffective assistance of counsel excused his motion from procedural default. Ineffective assistance of counsel amounting to failure to preserve issues for appeal may be the "cause" to excuse a procedural default. Edwards v. Carpenter, 120 S.Ct. 1587, 1592 (2000). But an ineffective assistance claim that is itself procedurally defaulted can only serve as cause to excuse the procedural default of another claim if the petitioner can satisfy the "cause and prejudice" standard as to the ineffective assistance claim. Id. He can also evade procedural default if he demonstrates that failure to consider his claims "will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 724 (1991).
In his motion for a COA, Arguijo does not directly address this issue. In his Notice of Appeal, Arguijo argued that his counsel was ineffective because he led Arguijo to believe that there were no issues meriting an appeal. (Arguijo's Notice of Appeal, at 2). Arguijo argued that counsel failed "to advise Petitioner that there was a solid ground upon which to appeal" and instead advised "him that there were no appealable issues." (Arguijo's Notice of Appeal, at 11). Arguijo clearly does not, however, argue that he asked his attorney to file an appeal and that his attorney failed to do so. Compare Castellanos v. United States, 26 F.3d 717, 719 (7th Cir. 1994) (attorney's failure to file notice of appeal when client asked him to do so constituted per se ineffective assistance of counsel sufficient to overcome procedural bar). The Court notes that if a client wants to take an imprudent appeal, "the lawyer properly may try to talk him out of it." Id. at 719. Arguijo appears to have abandoned his appeal on advice of counsel and now regrets taking his attorney's advice. Thus, in order to excuse the procedural bar, Arguijo must demonstrate prejudice or a miscarriage of justice from the failure to take an appeal. See Edwards, 120 S.Ct. at 1592; Coleman, 501 U.S. at 724. That he cannot do, and no reasonable jurist could find otherwise.
To further support his ineffective assistance of counsel claim, aside from the failure to appeal, Arguijo argued that his trial counsel (1) failed to make a motion to suppress Arguijo' s confession because the police failed to inform him of his rights under the Vienna Convention, see Vienna Convention on Consular Relations, April 24, 1963, art. 36, 21 U.S.T. 77; (2) failed to inform Arguijo that the district court's rejection of a downward departure was appealable; (3) failed to move for a downward departure because Arguijo's behavior was aberrant; (4) failed to object to the presentence report; and (5) failed to object to the two point enhancement for "threat of death." Arguijo, a Honduran citizen, also argued that his rights were violated by the police and the government because they neglected to inform him of his rights under the Vienna Convention and that this court erred in failing to protect those rights. He further argued that he should have received a downward departure for his extraordinary cooperation in pleading guilty.
We previously found that there was no cause and prejudice and no miscarriage of justice from this failure to bring an appeal because Arguijo would not have prevailed on his claims. Here, we hold that a plain procedural bar is present and that no reasonable jurist could conclude otherwise. See Slack, 120 U.S. at 1604.
While it is not necessary to go through all of Arguijo' s claims for ineffective assistance of counsel again, one claim merits discussion. Arguijo focuses almost his entire motion for a COA on his attorney's and law enforcement's failure to advise him of his rights under the Vienna Convention and on his attorney's failure to file a motion to suppress his confession on that basis. He argues that this deems his confession involuntary, that his attorney should have made a motion to suppress his confession, and that his attorney's failure to do so deprived him of effective assistance of counsel as required by the Sixth Amendment. (Motion for COA, p. 6). The Seventh Circuit has repeatedly and clearly stated that "the exclusionary rule is not an appropriate remedy" for a violation of Article 36 of the Vienna Convention. United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000). Following United States v. Chaparro-Alcantara, 226 F.3d 616 (7th Cir. 2000), the Lawal Court further explained that since "there is no general exclusionary rule for international law violations, suppression of evidence is appropriate `only when the treaty provides for that remedy.'" Lawal 231 F.3d at 1048, citing Chaparro-Alcantara, 226 F.3d at 624-25. Article 36 of the Vienna Convention does not provide "such an extraordinary remedy." Id. Therefore, suppression of Arguijo's confession would not have been an appropriate remedy. To the extent that Arguijo argues that his confession was involuntary on this basis, that argument lacks merit. See 231 F.3d at 1048-49. For the remainder of Arguijo' s claims, the Court refers to its July 7, 2000 Memorandum Opinion and Order.
CONCLUSION
Therefore, for the foregoing reasons, the Motion for a Certificate of Appealability is DENIED.
IT IS SO ORDERED.