Opinion
Civil Action No. 5:04-CV-178-C.
August 16, 2004
ORDER
On August 5, 2004, Petitioner Albert Wright filed a Petition for Writ of Habeas Corpus Pursuant to Title 28 U.S.C. § 2241. Petitioner, a citizen of Jamaica, was convicted by a jury of federal criminal offenses in the United States District Court for the Middle District of Florida, Orlando Division, (Criminal Action No. 92-CR-28) and on October 21, 1992, he was sentenced to 15 years' incarceration in the United States Bureau of Prisons. He complains that he was never notified of his right to contact the consular representatives of Jamaica before he was convicted and sentenced in violation of the Vienna Convention Treaty.
"The Vienna Convention is a 79-article, multilateral treaty negotiated in 1963 and ratified by the United States in 1969." United States v. Jimenez-Nava, 243 F.3d 192, 195 (5th Cir. 2001). The treaty "requires an arresting government to notify a foreign national who has been arrested, imprisoned or taken into custody or detention of his right to contact his consul." Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996). The Fifth Circuit Court of Appeals has determined, however, that "`[t]reaties are contracts between or among independent nations[,]' United States v. Zabaneh, 837 F.2d 1249, 1261 (5th Cir. 1988), [and] [a]s such, they do not generally create rights that are enforceable in the courts." United States v. Jimenez-Nava, 243 F.3d at 195. Although the treaty appears "to preclude any possibility that individuals may benefit from it when they travel abroad, even, perhaps, if they are among the consular corps[,]" "only one article out of 79 . . . even arguably protects individual non-consular officials." Id. at 196. Nevertheless, the Fifth Circuit Court of Appeals has concluded that the language of this article does not explicitly provide for judicially enforceable individual rights and the language of the treaty's preamble plainly states that the treaty's purpose "is not to benefit individuals." Id. at 197. Accordingly, the Fifth Circuit ineluctably concludes that the treaty has not created "judicially enforceable rights between a detained foreign national and his consular office." Id. at 198. See Flores v. Johnson, 210 F.3d 456, 457-58 (5th Cir. 2000) (noting that Supreme Court admits the possibility that the treaty does not confer rights on an individual in Breard v. Greene, 523 U.S. 371 (1998)).
Even if Petitioner were entitled to consular assistance, however, he neither argues nor demonstrates that he was harmed by the alleged failure to advise him of his right to seek consular assistance. See Faulder v. Johnson, 81 F.3d at 520 (holding that even though the state admitted that the defendant was not advised of his right to consular assistance pursuant to the Vienna Convention, the defendant had access to all information that could have been obtained by the consular officials and any evidence that they could have obtained would have been merely cumulative).
The Court also notes that the cases referred to by Petitioner in his arguments involve cases where foreign nationals were sentenced to death. He was not sentenced to death but only 15 years' incarceration.
Accordingly, the Court finds that Petitioner's contention that the failure to provide him with notice of his rights under the Vienna Convention fails to present a claim cognizable on federal habeas review and it should be denied and dismissed with prejudice. See Okwilagwe v. Immigration and Naturalization Service, 2002 WL 122526 at *3 (N.D. Tex. 2002) (holding that a § 2241 petitioner's "contention related to contacting his embassy [did] not present a cognizable claim").
SO ORDERED.