No. 2--06--0236 Filed 3/6/07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINO IS, ) of Lak e C ou nt y. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--1978 ) MARIO NAJERA, JR., ) Honorab le ) Mitchell L. Hoffman, Defend ant-App ellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE BOWMAN de livered

the opinion of the c ourt: Defend ant, Mario Najera, Jr., pleaded guilty to criminal sexual abuse (720 IL CS 5/12--15(c) (West 2002)). Defendant filed a petition pursuant to section 2--1401 of the Code of Civil Procedure (735 IL CS 5/2--14 01 (West 20 04)) to va catehis conviction. The trial court denied the petition and defendant appeals. Defendant contendsthat his conviction was void because the authorities did not comply with article 36 of the Vienna Conv ention on Consular Relations (Vienna Convention). Becau se there is generally no judicial rem ed y for a Vienna Convention violation, and defendant procedu rally default ed any remedy he might have ha d here, we affir

m. In 2003, defendant

pleaded guilty to crimina

l sexual ab

use. Pursu

ant to an a

greement with the State, he

was sente nced toprobation. On November 3, 2005, he filed a section 2--1401 petition, inwhich he

contende d that the

judgmen t of convi ction was

void. Def

endant alleged that

he is a citizen of Mexico. When he was arrested, he was not informed of his right to contac tthe MexicanNo. 2--06--0236

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embassy or consul gene ral, and the consul general was not infor med of his arrest. The trial court denied the petiti on, in par

t becaus e it

was not properly ve

rified. The trial court granted defenda nt leave to submit a verified petition. Howeve

r, the co urt denie d the ame

nded peti tion on the

merits. Defend ant timely appeals
. Ge ne ra ll y, we review th e d is po si ti on of a s ec ti on 2- -1 40 1 p et it io n o nl y for a n abuse of discretion. Paul v. Gerald Adelman & Associates, L td. , 223 Ill. 2d 85, 95 (2006). However, w here,
as her e, t he petition alleg es that the underly ing judg ment is void , "the g eneral rules pe rtaining to petitions filed under

se ct io n 2
-- 14 01 " d o n ot ap pl y, and de novo review may be appropriate. Ford Motor Credit Co. v. Sperry , 214 I ll. 2d 371, 3 79 (2005) . Beca use the on

ly is su es here

are pur ely legalones concerning

the valid ity of the und

erly ing judg ment, we w

ill review t

hose issue s de novo
. Article 36(1)(b ) of the Vienna Con vention pr

ovides in r

elevant part: "[I ]f he so req uests, the compete nt author ities of the rece iving Sta

te shall , without de la y, inform the consular post of the sendingState if, within its consular district, a national of that State

is arrested or committed to prison or to custody pending trial or i s detaine d in any other manner. Any

communic ation add

ressed t o the cons ular post by the person a

rrested, inprison, custody or

detention shall also be forwarded by t he sa id au th or it ie s w it ho ut de la y. The said authorities shall inform the person concer ned witho ut delay of his rig hts under this sub-paragraph." Vienna Convention on Consular Relations, opened for signature April 24, 1963, art. 36(1)(b), 21 U.S.T. 77, 596 U.N.T.S. 261. In People v. Madej , 193 Ill . 2d 395 (2000) , the supr eme cour t reject ed the ar gument t hat a Vienna Convention violation rendered the defendant's conviction void (Madej , 193 I ll. 2d at 401), and that the violation thus was not subject to Illinois's procedural default rules (Madej , 193 Ill. 2dNo. 2--06--0236

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at 403-04). Defendant acknowledges Madej , but argues cry ptically that the decision was rendered "with out th is spec ific jurisd iction al issu e bein g raised." In Madej , the defendant argued that his conviction was void be cause officials did no t comply with the V ienn a Co nve ntion
. In rej ecting that contention, the court held as f ollows: "This court has ex plained tha t an order is void if it was entered by

a court that l acked juri sdic tionof the parti es or of t he subj ectmatt er or

that lac ked th e inhe rent

power t o make
or ente r the par

tic ular order invol ved. [Citation.] Here, the t ria l cour t cl ear ly had j uris dict ion of the parties and of the subject matter and it had th e inhe rent power t o make or

ente r the orders involved . Conseq uently, we see no basis upo n which to conclu de that de fen da nt 's convictio n and sen tence are void ." Madej , 193 I ll. 2d at401. It is hard t o see what j uris dict ional iss ue was r aise d in Madej if not t he one defendant raises here. In People v. Montano , 365 Ill. App. 3d 1 95 (2006), this court held that the defendant had waived his Vi enna Convention argument by not raising it at any

time in the trial court. Montano , 365 Ill. App. 3d at 199. Moreover, we held that a new trial was not an appropriate reme dy for a violation. Montano , 365 Ill. App. 3d at 201. We co nsidered n umero us state and federal cases that had rejected t

he idea that the Vienna Convention creates ri ght s that can be enforced by an i ndividual def endant in a judi cia l f

orum. We concl uded, li ke the vast major ity of o ther courts, that the on ly remedies for the failure of consular notif ication under the treat

y are " ' diplomatic, political, or exist between [signatory] states under internationa l law.' " Montano , 365 Il l. App. 3d at 201, quoti ng Un ited Sta tes v. Li , 206 F.3d 56, 63 (1s t Cir. 2000). Here, def

endant pl ead ed guilty and, accordingly, waived any issue regarding the failure to contact the consulate. See People v. Peeples , 155 Ill. 2d 422, 49 1 (1993 ) (guilty plea waiv es allNo. 2--06--0236

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nonjurisdictional issues). His at tempt to circumvent this result by clai ming that his c onvict ion is
vo id i s sq ua rely fo rec los ed by Madej and by our pr ior opini on in Montano
. Defe ndantconte nds that the re al i ssue is whether the Vienna Conv ention "will be enforce d in the Illinois state courts." I nvokingthe s uprema cyclause ( U.S. Const. , ar t. VI) , def

endant argues that I lli nois c ourt s may

not abrogate a Un ited States treaty. I llinois courts have ne ver qu esti oned t he validity of t

he Vie nna Convent ion. Th e q ue stio ns , ho we ve r, ar e w ha t rem ed y, if an y, is available to
an indiv idual defendan t for a violation and whethe r the existence o f that remedy is subject to this State's rules of procedural d efault. Defendant

notes t hat the International Court of Justice has decre ed that the Vienna Conventiondoes provide individual, enforceable rights, that the United States ha d viol at ed those rightsin the case before it, and that the United Stateshad to provide a means t o vindica te the rig hts of the named

defendants that was not

subject to procedural default. Case Concerning Avena & Othe r MexicanNational s (Mex. v. U.S.) , 2004 I.C.J. 12 (March 31). Defenda nt further points out that President Bush issued a memorandum stating that the United States would abide by its obligations under the Avena

judgment. See Medellin v. Dretke , 544 U.S. 660, 66 3, 161 L . Ed. 2d 982, 987, 125 S. Ct. 2088, 2090 (20 05)
. From references in Medellin to the International Court of Justice judgment and the Bush memorandum, defendant arg ues that the Supre

me Court is

prepared to recognize that the Vienn a Convent

ion does pr

ovide enf orceab le individu

al righ ts. While Medellin

did appear to crack open the door to a re cognition of enforceable individual rightsunder the Vienna Convention, the Cou rt su bsequen tly sla mmed the door s hut i n SanchezLlamas v. Or egon , 548 U. S. ___, ___, 16 5 L. Ed. 2d 55 7, 576-7 7, 126 S . Ct. 2669, 26 80 (200 6). Initi ally, we note th at Med ellin merely dismissed the writ of certiorari as improv idently gr ante d. The Cou rt notedthat , f

our days before oral argumen t, one of the defenda nts--who were the p art ies to theNo. 2--06--0236

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Avena judg ment --h ad file d a n ew peti tion for a w rit of habeas corpu s based on the Bush memorandum

and that the new petition provided a possible avenue for relief that would render the controversy moot. Medellin , 544 U.S. at 663-64, 161 L. Ed. 2d at 987, 125 S. Ct. at 2990. Thus, the Court explicitly left open any issues concerning

a remedy for violations of the treaty' s consular notifica tion provi sions. In Sanchez-Llamas , t he Court a nswere d the questions that Medellin left open. T he Co urt, noti ng that the Vien na Conv ention do es not exp licitly provide for a judicial remedy, declined to impose one o n state c ourts . San chez -Ll amas , 548 U.S. at ___, 165 L. Ed. 2d at 576, 126 S. Ct. at 2679-80. Moreover, the Court held that, despite t he supremacy clau se, an article 36 violation is subject to state proce dura l default ru les. Sanchez-Llamas , 548 U. S. a t ___, 165 L. Ed. 2d at 57 9-80, 126 S. Ct. at 26 82-83. Furt her, the Cour

t r eje cte d the arg ument t hat i t was bound t o follow th e Inte rnat ional Court of Ju stice's interpretation that article 36 violatio ns sho uld no t be subject to procedural default r

ules, noti ng that treaties are a form of federal law and it is the Co urt's "duty ' to say what the law is.' " Sanchez-Llamas , 548 U.S. at __ _, 165 L . Ed. 2d at581, 12 6 S. Ct . at 2684, quo ting Marbury

v. Madi son , 5 U.S. (1 Cranc h) 137, 17 7, 2 L. Ed. 60, 73 (18 03). Thus, defendant's argument ba sed on the supremacy clause fails. The Supreme C ourt has squarel y held that the trea ty d oes not g eneral ly provide e nforce able indi

vidual r ight s and that any remedy that migh

t be appli ed in a given cas e is subje ct to state procedu ral def ault rule s. Insummary

, defend ant's c onviction

is not void. The Vienna Convention does not gener ally provide rights enforceable by an individual defendant. To the extent that defendant might have been ableto claim a judicial remedy in this case, his guilty

plea wa ived that right. Accordingly, the trial court properly

denied his section 2--1401 petition. The judgment of the circuit court of Lake County is affirme d.No. 2--06--0236

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Affirmed. HUTCHINSON and KAPAL A, JJ., concur.