IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL NO. 03-827

:

v. :

:

JAVIER HART : CIVIL ACTION NO. 07-3729

MEMORANDUM AND ORDER

McLaughlin, J. February 11, 2008

Javier Hart was convicted by a jury on November 3,

2004, of various drug and weapons offenses. The Court sentenced

Hart to a mandatory minimum sentence of life imprisonment, plus

sixty consecutive months. The United States Court of Appeals for

the Third Circuit affirmed Hart’s convictions on all counts on

August 4, 2006. The Supreme Court denied Hart’s petition for a

writ of certiorari on October 11, 2006. Hart has filed a motion

under 28 U.S.C. § 2255 to vacate, set aside, or correct his

sentence. The Court will deny the motion. 

Hart’s first claim is that he was denied his right to

consular notification under the Vienna Convention, and is,

therefore, entitled to a hearing to determine whether this

violation caused actual prejudice. Hart also alleges that his

counsel was ineffective for various reasons: counsel did not

challenge the particularity of the search warrant; counsel failed

to challenge federal jurisdiction to prosecute him; counsel did

not object to the government’s alleged reliance on police reports

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in arguing for enhancements of his sentence; and counsel did not

raise the Vienna Convention issue. Hart also claims that his

constitutional rights were violated at trial because his prior

convictions must be proven to a jury beyond a reasonable doubt to

trigger a mandatory minimum sentence. His seventh and final

claim is that the Court misinterpreted Booker.

I. Analysis

A. The Vienna Convention

Hart claims to be a citizen of the country of Panama,

and states that he was never informed by law enforcement of his

right to confer with his consulate after his arrest and before

his trial. The Court will assume both of those facts to be true.

The Vienna Convention provides:

[I]f he so requests, the competent

authorities of the receiving State shall,

without delay, inform the consular post of

the sending State if, within its consular

district, a national of that State is

arrested or committed to prison or to custody

pending trial or is detained in any other

manner. . . . The said authorities shall

inform the person concerned without delay of

his rights under this sub-paragraph[.]

Vienna Convention on Consular Relations art. 36(1)(b), Apr. 24,

1963, 21 U.S.T. 77, 596 U.N.T.S. 261. Hart argues that he is

entitled to a hearing regarding whether the government’s failure

to notify caused him prejudice. Hart cites Medellín v. Dretke,

544 U.S. 660, 663 (2005), for the proposition that a directive by

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Neither the Supreme Court nor the United States Court 1

of Appeals for the Third Circuit has decided whether the Vienna

Convention creates a right that is individually enforceable in a

judicial proceeding. Both courts have assumed without deciding

that the Vienna Convention creates an individually enforceable

right. Sanchez-Llamas, 126 S. Ct. at 2677-78; In re Obi, 240

Fed. Appx. 1000, 1000 n.2 (3d Cir. 2007) (citing Sanchez-Llamas). 

Some other circuits have decided against an individually

enforceable right. See, e.g., United States v. Emuegbunam, 268

F.3d 377, 391 (6th Cir. 2001).

3

President Bush has mandated that all foreign nationals must

receive such a hearing. 

As an initial matter, President Bush’s directive that

Medellín discusses refers only to the specific prisoners whose

cases were at issue in the International Court of Justice (“ICJ”)

case of Case Concerning Avena and other Mexican Nationals (Mex.

v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31). See

Medellín, 544 U.S. at 663; George W. Bush, Memorandum for the

Attorney General (Feb. 28, 2005), App. 2 to Brief for United

States as Amicus Curiae Supporting Respondent, Medellín, 544 U.S.

660 (No. 04-5928), 2005 WL 504490. In addition, the Supreme

Court has ruled that it is not bound by ICJ determinations. 

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2683 (2006). 

Therefore, Hart cannot rely directly on Avena for relief.1

Hart did not raise this issue prior to the filing of

this motion. Ordinarily, “to obtain collateral relief based on

trial errors to which no contemporaneous objection was made, a

convicted defendant must show both (1) ‘cause’ excusing his

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double procedural default, and (2) ‘actual prejudice’ resulting

from the errors of which he complains.” United States v. Frady,

456 U.S. 152, 167-68 (1982).

In Sanchez-Llamas, the Supreme Court ruled that state

procedural default rules applied to a state prisoner, Mario

Bustillo, who raised a Vienna Convention claim for the first time

in a collateral proceeding. Sanchez-Llamas, 126 S. Ct. at 2683,

2687; see also Breard v. Greene, 523 U.S. 371 (1998). Bustillo

argued that the normal procedural default rules should be

suspended because he was prevented from raising the claim earlier

because the government failed to inform him of his right to

consular notification under the Convention. The Court disagreed,

stating that a violation of an accused’s Miranda rights is also a

failure to notify the accused of his rights, and yet Miranda

claims can be procedurally defaulted. Sanchez-Llamas, 126 S. Ct.

at 2687. The Court also distinguished and dismissed other

grounds for the appellant’s position that the usual state

procedural default rules should not apply to Vienna Convention

claims. Id. The Court concluded, “[the petitioner] requests an

exception to procedural rules that is accorded to almost no other

right, including many of our most fundamental constitutional

protections. It is no slight to the Convention to deny [the

petitioner’s] claims under the same principles we would apply to

an Act of Congress, or to the Constitution itself.” Id. at 2688.

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Sanchez-Llamas referred to state procedural default

rules, not federal. The logic of applying the normal procedural

default rules to a Vienna Convention claim, however, applies to

federal prisoners, as well. The Supreme Court has ruled in

another § 2255 context that “we see no basis for affording

federal prisoners a preferred status [relative to state

prisoners] when they seek postconviction relief.” Frady, 456

U.S. at 166. Lower courts have applied the procedural default

rule in Sanchez-Llamas to § 2255 proceedings, often without much

discussion of any possibility that state and federal prisoners

should be treated differently. See, e.g., Anziani v. United

States, No. 06-cv-12121, 2007 WL 1959212, at *3 (D. Mass. July

05, 2007); Vigil Alonso v. United States, 5:06-cv-156, 2007 WL

2010633, at *3 (S.D. Tex. July 5, 2007).

The Court concludes that Hart cannot now raise this

issue on collateral attack.

B. Ineffective Assistance of Counsel Claims

1. Legal Principles

Whether or not counsel will be considered “ineffective”

for habeas purposes is governed by the two-part test articulated

by the Supreme Court in Strickland v. Washington, 466 U.S. 668

(1984). Under Strickland, the defendant must prove that (1)

counsel’s representation fell below an objective standard of

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reasonableness; and (2) there is a reasonable probability that,

but for counsel’s error, the result would have been different. 

Id. at 687-96; see also United States v. Nino, 878 F.2d 101 (3d

Cir. 1989).

In evaluating the first prong, a court must be “highly

deferential” to counsel’s decision and there is a “strong

presumption” that counsel’s performance was reasonable. United

States v. Kauffman, 109 F.3d 186 (3d Cir. 1997) (citing

Strickland). Counsel must have wide latitude in making tactical

decisions. Strickland, 466 U.S. at 689. The defendant must

overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. 

United States v. Gray, 878 F.2d 702 (3d Cir. 1989). 

The conduct of counsel should be evaluated on the facts

of the particular case, viewed as of the time of the conduct. 

Strickland, 466 U.S. at 690. The United States Court of Appeals

for the Third Circuit, quoting Strickland, has cautioned that the

range of reasonable professional judgments is wide and courts

must take care to avoid illegitimate second-guessing of counsel’s

strategic decisions from the superior vantage point of hindsight. 

Gray, 878 F.2d at 711. 

For the second prong, the Supreme Court has defined a

“reasonable probability” as one that is sufficient to undermine

confidence in the outcome. Strickland, 466 U.S. at 694. Put

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another way, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have

had a reasonable doubt respecting guilt. The effect of counsel’s

inadequate performance must be evaluated in light of the totality

of the evidence at trial.

2. Application of Legal Principles

Hart argues that his trial counsel was ineffective for

not challenging the particularity of the search warrant because

it failed to list firearms as objects of the search. 

Defense counsel did file a motion to suppress the

evidence in this case. Evidence was taken from Hart’s person,

his car, and a house. It is the search of the house that Hart is

challenging in this petition. The evidentiary record in the

trial court established that a weapon was seized from the house

pursuant to a search warrant. Although defense counsel argued

that the search warrant lacked probable cause, he did not argue

that the weapon should be suppressed because it was not

specifically listed in the items to be searched. In its decision

on the motion to suppress, the Court held that the affidavit did

not contain probable cause for the search, but denied the motion

to suppress pursuant to the “good faith exception” first

announced in United States v. Leon, 468 U.S. 897 (1984). The

defendant’s Fourth Amendment claims were argued before the United

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States Court of Appeals for the Third Circuit, and that Court

affirmed the decision on the motion to suppress.

Counsel’s failure to challenge the search warrant on

the ground of particularity fulfills neither prong of the

Strickland test. The items listed in the search warrant to be

seized included a variety of drugs and drug paraphernalia, as

well as monies, assets, pagers, and cellular phones, along with

their memories and resident identification. When law enforcement

officers execute a search warrant, they may search wherever the

items listed in the warrant may be. Because of the nature of the

items to be searched for in this warrant, the breadth of the

officers’ search was unlimited. This warrant allowed the

officers to search anywhere one of the items to be seized could

be. Once they observed the gun, they could seize it under the

doctrine of plain view. Therefore, the Court will deny the

petition on this ground.

Hart’s argument that his trial counsel was ineffective

for failing to challenge federal jurisdiction before the trial is

without merit. The defendant was charged in an indictment for

violations of federal criminal law, and the Court had subject

matter jurisdiction over the case pursuant to 18 U.S.C. § 3231. 

The fact that the alleged offense was investigated by state and

local authorities and not by the federal authorities is not

legally relevant. Hart’s counsel had no reasonable grounds to

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object to subject matter jurisdiction. His performance,

therefore, on this issue was not deficient.

Hart next argues that defense counsel was ineffective

for failing to object to the use of a police report that the

defendant claims this Court relied on to determine that he had

been convicted of prior felony offenses. There is no evidence

that this was the case. The probation officer relied on copies

of certified copies of convictions from the Philadelphia Court of

Common Pleas to determine Hart’s criminal history. Moreover, at

the sentencing hearing, the prosecutor stated that certified

copies of the defendant’s convictions for these offenses were

supplied to the defendant during the discovery process before the

defendant’s trial. During the sentencing hearing, defense

counsel stated that he had seen the paperwork on the prior

convictions prior to the sentencing and he did not believe there

was a basis to challenge them. Neither prong of the Strickland

test is met under these circumstances.

Even if Hart were able to establish that defense

counsel was ineffective on this point, he would not be able to

establish any prejudice. Hart is attempting to argue that the

two separate convictions on February 8, 1993, in actual fact

represented one unit of conviction for calculating whether he

qualified for a mandatory minimum life sentence. Hart argues

that because both of these arrests (on different occasions, four

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In Sanchez-Llamas, the Supreme Court of Virginia had 2

denied the petitioner’s claim of ineffective assistance of

counsel based on failure to invoke the Vienna Convention, but

that issue was not before the United States Supreme Court. 

Sanchez-Llamas, 126 S. Ct. at 2677.

10

months apart) stem from the same conspiracy, they should only be

counted as one offense or conviction. Even if this were to be

the case, Hart cannot establish that he suffered any prejudice,

the second prong of the Strickland test.

Before trial, the government filed a notice under 21

U.S.C. § 851, that the defendant had been convicted of three

prior felony narcotics offenses. Title 21 of the U.S. Code only

requires two predicate felony narcotics offenses to trigger

application of the mandatory minimum term of imprisonment. 21

U.S.C. § 841(b)(1)(A)(viii). In this case, Hart already had

three felony narcotics convictions. Condensing two of those

convictions into one unit of conviction because both offenses

stemmed from the same conspiracy has no effect since the law

requires only two convictions for the mandatory minimum to apply. 

Accordingly, Hart cannot establish any prejudice, even if his

counsel was deficient for failing to object to both 1992

narcotics convictions being used as a partial basis for

application of the mandatory minimum.

Nor does counsel’s failure to raise Vienna Convention

issues prior to trial amount to ineffective assistance of

counsel. The defendant does not allege any prejudice as a 2

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result of this failure. Suppression of evidence is not a

possibility. See Sanchez-Llamas, 126 S. Ct. at 2680-82. Hart

wants the Court to have a hearing to explore any possible

prejudice counsel’s failure to raise the Vienna Convention issue. 

But Strickland puts the burden on a defendant to show prejudice.

The United States Court of Appeals for the Third

Circuit already denied on direct appeal Hart’s argument that his

constitutional rights were violated at trial because his prior

convictions were not proven to a jury beyond a reasonable doubt

to trigger application of the mandatory minimum sentence.

Finally, the defendant argues that the mandatory life

sentence imposed by the Court was unconstitutional because it

violated his Sixth Amendment right to a jury trial or the jury

never authorized the life sentence. He relies on United States

v. Booker, 543 U.S. 220 (2005). The United States Court of

Appeals for the Third Circuit already rejected this argument in

his direct appeal and in other cases.

A certificate of appealability shall not issue.

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL NO. 03-827

:

v. :

:

JAVIER HART : CIVIL ACTION NO. 07-3729

ORDER

AND NOW, this 11th day of February, 2008, upon

consideration of defendant’s motion to vacate, set aside or

correct sentence (Docket No. 79), the government’s opposition,

and the defendant’s response thereto , IT IS HEREBY ORDERED that

said motion is DENIED for the reasons stated in a memorandum of

today’s date. The Court will not issue a certificate of

appealability because the defendant has not made a substantial

showing of the denial of a constitutional right.

BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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