IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

FONG ON LAM

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CRIMINAL ACTION

NO. 04-304

CIVIL ACTION

NO. 05-5530

Memorandum and Order

YOHN, J. June ___, 2006

Defendant Fong On Lam, a prisoner at the Low Security Correctional Institution in White

Deer, Pennsylvania, has filed a pro se Petition for Writ of Habeas and Nullification of the

Indictment under 28 U.S.C. § 2255. Lam argues that his conviction and confinement violate the

Vienna Convention on Consular Relations and Optional Protocol on Disputes (“Vienna

Convention”) art. 36, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, because upon arresting

him the government failed to inform him that he had the right to contact his nation’s consul. For

the reasons set forth below, I will dismiss Lam’s motion.

I. Factual and Procedural History

Defendant Fong On Lam is a native and citizen of Singapore. On May 27, 2004, an

indictment was issued charging Lam with three counts of bringing illegal aliens into the United

States for financial gain in violation of 8 U.S.C. § 1324(a)(2)(B)(ii). On September 27, 2004,

Lam pleaded guilty to counts one and three, and the government agreed to dismiss count two. 

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 Lam concedes that he was, in fact, in contact with his consul by August 20, 2004, five

weeks before his guilty plea.

2

The plea agreement includes a provision that places severe restrictions on Lam’s ability to

challenge his conviction and sentence. Specifically, the provision states:

In exchange for the undertakings made by the government in entering this plea

agreement, the defendant voluntarily and expressly waives all rights to appeal or

collaterally attack the defendant’s conviction, sentence, or any other matter relating

to this prosecution, whether such a right to appeal or collateral attack arises under 18

U.S.C. § 3742, 28 U.S.C. § 1291, 28 U.S.C. § 2255, or any other provision of law.

a. Notwithstanding the waiver provision above, if the government appeals

from the sentence, then the defendant may file a direct appeal of his sentence.

b. If the government does not appeal, then notwithstanding the waiver

provision set forth in this paragraph, the defendant may file a direct appeal but may

raise only claims that:

1. the defendant’s sentence on any count of conviction exceeds the

statutory maximum for that count as set forth in paragraph 7 above; or

2. the sentencing judge erroneously departed upward from the

otherwise applicable sentencing guideline range.

(Guilty Plea Agreement at ¶ 11.) Thus, he unequivocally waived his right to file a § 2255 motion

under all circumstances. In the plea agreement, Lam and the government agreed upon a sentence

of thirty-six months. (Guilty Plea Agreement at ¶ 6.) On January 12, 2005, this court sentenced

Lam to thirty-six months’ imprisonment. Neither Lam nor the government filed an appeal. 

On October 24, 2005, Lam filed a Petition for Writ of Habeas and Nullification of the

Indictment under 28 U.S.C. § 2255. He argues that he was not informed at the time of his arrest1

of his right to consult with his nation’s consul, as guaranteed by the Vienna Convention, and that

his indictment and/or conviction therefore should be vacated. 

II. Discussion

Lam argues that if the government had complied with the Vienna Convention on

Consular Relations and Optional Protocol on Disputes (“Vienna Convention”) art. 36, April 24,

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 Article 36 of the Vienna Convention provides, in part:

1. With a view to facilitating the exercise of consular functions relating to nationals

of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State

and to have access to them. Nationals of the sending State shall have the same

freedom with respect to communication with and access to consular officers of the

sending State;

(b) if 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. Any communication addressed to the consular

post by the person arrested, in prison, custody or detention shall also be forwarded

by the said authorities without delay. The said authorities shall inform the person

concerned without delay of his rights under this sub-paragraph.

Vienna Convention art. 36, April 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (emphasis added).

3

 Lam couches his argument in equal protection terms, which does not affect the

evaluation of whether his waiver of his right to collateral attack is enforceable.

4

 However, in the not precedential opinion of United States v. Perry, 142 Fed. Appx. 610

(3d Cir. 2005), the court concluded that such a waiver was enforceable.

3

1963, 21 U.S.T. 77, T.I.A.S. No. 6820,2 which requires the government to notify a defendant of

his right to contact his nation’s consul, he would have received the benefit of his consul’s

guidance and would have been able to mount a better defense and obtain various presentencing

benefits.3 The government, on the other hand, argues that the waiver provision of Lam’s guilty

plea agreement prohibits this collateral challenge altogether. As explained below, the court

concludes that the government’s position is correct and will dismiss Lam’s motion. 

In United States v. Khattak, 273 F.3d 557, 558 (3d Cir. 2001), the Third Circuit Court of

Appeals held that waivers of appeals in plea agreements are generally enforceable. The standard

articulated in Khattak is that “waivers of appeals are generally permissible if entered into

knowingly and voluntarily, unless they work a miscarriage of justice.” Id.

The Third Circuit has not ruled on the enforceability of waivers of collateral attacks,

4

 but

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the logic of Khattak applies with equal force here. In addition, many other circuit courts have

held that such waivers foreclose all claims with the exception of those relating directly to the

negotiation of the waiver itself. See United States v. White, 307 F.3d 336, 339 (5th Cir. 2002)

(enforcing a waiver of collateral attack and dismissing defendant’s § 2255 ineffectiveness of

counsel claim because the court was satisfied that defendant’s claim did not go to the

voluntariness of the waiver); Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001)

(announcing the rule that a knowing and intelligent waiver of the right to collateral attack

forecloses a claim of ineffective assistance of counsel under § 2255); Jones v. United States, 167

F.3d 1142, 1145 (7th Cir. 1998) (holding that “the right to mount a collateral attack pursuant to §

2255 survives only with respect to those discrete claims which relate directly to the negotiation

of the waiver”); DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000) (following Jones in

holding that defendant’s waiver of the right to seek § 2255 relief does not waive his right to

argue, pursuant to that section, that the decision to enter into the plea was not knowing and

voluntary because it was the result of ineffective assistance of counsel). Further, district courts

within the Third Circuit have enforced waivers of collateral attack in cases where the negotiation

of the waiver itself was not alleged to be tainted. See United States v. Fagan, No. 02-75, 2004

WL 2577553, at *3 (E.D. Pa. Oct. 4, 2004) (collecting cases). Accordingly, the court will apply

the Khattak standard to this case, which includes an evaluation of whether the government’s

failure to inform Lam of his right to contact his consul upon arrest jeopardized the integrity of the

waiver provision.

Khattak’s presumption that waivers are enforceable only applies when the defendant

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entered into the agreement knowingly and voluntarily. Khattak, 273 F.3d at 558. Here, Lam

does not claim that his decision to accept the waiver provision was in any way unknowing or

involuntary. Further, Lam had the benefit of a thorough Rule 11 colloquy, which Khattak

highlighted as “critical” in determining whether a waiver was knowing and voluntary. Id. at 563. 

During the Rule 11 colloquy, the court ensured that Lam understood the nature and consequences

of the specific terms of his plea agreement, including the waiver provision. The court was

satisfied on the basis of Lam’s responses during the plea colloquy that Lam was represented

adequately by counsel during the negotiation of the plea agreement and that he agreed to its

provisions, including the waiver, both knowingly and voluntarily. Thus, there is no question that

Lam accepted the waiver provision knowingly and voluntarily, and he may avoid enforcement of

the waiver provision only if he can show that such enforcement would work a miscarriage of

justice. 

The Third Circuit has declined to enumerate specific situations in which enforcement of a

waiver provision would cause a miscarriage of justice; rather, it has endorsed the case-by-case

approach taken by the First Circuit in United States v. Teeter, 257 F.3d 14 (1st Cir. 2001). 

Khattak, 273 F.3d at 563. Under this approach, the court is required to weigh several factors

before relieving defendant of the waiver. These include:

[T]he clarity of the error, its gravity, its character (e.g. whether it concerns a fact

issue, a sentencing guideline, or a statutory maximum), the impact of the error on the

defendant, the impact of correcting the error on the government, and the extent to

which the defendant acquiesced in the result.

Khattak, 273 F.3d at 563 (quoting Teeter, 257 F.3d at 25-26 ). 

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 For the purposes of this opinion, I assume that Lam’s claim in this regard is factually

correct.

6

 The Supreme Court has explained that a lawyer is “likely far better able to explain the

United States legal system to [an alien] than any consular official would have been.” Breard v.

Greene, 523 U.S. 371, 377 (1998). 

6

Based on the Teeter factors, the alleged error in this case5 -- the government’s failure to

inform Lam upon his arrest of his right to consult with his consul -- is of insufficient severity for

the enforcement of the waiver provision to represent a miscarriage of justice. First of all, and

most importantly, the error did not have a significant impact on Lam. He admits that he

contacted his consul on August 20, 2004, over a month before he pleaded guilty. Further, the

government contends, and Lam does not contest, that Lam has continued to consult with his

consul since that date. Thus, Lam’s arguments that he would have been able to mount a proper

defense or negotiate a better plea agreement had he been informed of his right to contact his

consul earlier are belied by the fact that he did contact his consul before pleading guilty. 

Accordingly, because Lam had access to the advice and expertise of both his consul and his

lawyer6 before accepting the plea agreement, the failure of the government to inform Lam of his

rights upon arrest did not work to his prejudice. See Breard v. Greene, 523 U.S. 371, 377 (1998)

(“it is extremely doubtful that the violation should result in the overturning of a final judgment of

conviction without some showing that the violation had an effect on the trial”). Further, for these

same reasons the court concludes that the negotiation of the waiver provision itself was not

tainted. 

Second, the court concludes that the error in this case is of limited gravity (insofar as it

relates to Lam’s criminal case), which also militates against finding that it would work a

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miscarriage of justice to enforce the waiver provision. The court concludes that the error was of

limited gravity for two reasons. First, it is unclear whether Article 36 provides for individually

enforceable rights. The Supreme Court has left the issue open, stating only that it “arguably

confers on an individual the right to consular assistance following arrest.” Breard, 523 U.S. at

376. Two circuits have held that the provision does not create individual rights, see United

States v. Emuegbunam, 268 F.3d 377, 394 (6th Cir. 2001); United States v. Jimenez-Nava, 243

F.3d 192, 198 (5th Cir. 2001), while one circuit has held that it does, see Jogi v. Voges, 425 F.3d

367, 382 (7th Cir. 2005). Thus, it is uncertain whether the right that Lam claims is privately

enforceable by him. Second, courts have concluded that limited remedies are available in

criminal proceedings to a defendant who was not apprised of his right to contact his consul. For

example, courts faced with a violation of Article 36 consistently have refused to dismiss the

underlying indictment, see United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000); United States v.

De La Pava, 268 F.3d 157, 165 (2d Cir. 2001); United States v. Page, 232 F.3d 536, 541 (6th

Cir. 2000); United States v. Duarte-Acero, 296 F.3d 1277, 1281 (11th Cir. 2002), or to suppress

evidence, see Li, 206 F.3d at 60; Page, 232 F.3d at 541; United States v. Chaparro-Alcantara,

226 F.3d 616, 622 (7th Cir. 2000); United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002);

United States v. Lombera-Camorlinga, 206 F.3d 882, 885 (9th Cir. 2000); United States v.

Minjares-Alvarez, 264 F.3d 980, 986 (10th Cir. 2001). These considerations further persuade the

court that the error alleged in this case does not mandate relieving Lam of the waiver-ofcollateral-attack provision of his guilty plea agreement. 

Thus, the court concludes that there is no evidence proffered that Lam did not agree to the

waiver provision of his guilty plea agreement knowingly and voluntarily. Further, because the

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government’s alleged failure to inform Lam of his right to contact his consul did not prejudice

Lam in this case, and because the error was of limited gravity, the court concludes that enforcing

the waiver provision does not work a miscarriage of justice. Thus, the court will enforce the

waiver provision, and accordingly, will dismiss Lam’s motion.

An appropriate order follows. 

Case 2:04-cr-00304-WY Document 57 Filed 06/02/06 Page 8 of 9
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

v.

FONG ON LAM

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:

:

:

:

:

:

CRIMINAL ACTION

NO. 04-304

CIVIL ACTION

NO. 05-5530

Order

Yohn, J.

AND NOW on this _____ day of June 2006, upon consideration of defendant Fong On

Lam’s Petition for Writ of Habeas and Nullification of the Indictment under 28 U.S.C. § 2255

(Doc. No. 47), the government’s motion to dismiss, and the defendant’s reply thereto, it is hereby

ORDERED that:

1. The defendant’s motion is DISMISSED. 

2. The defendant having failed to make a substantial showing of the denial of a

constitutional right, there is no ground to issue a certificate of appealability. 

3. The Clerk shall mark this case CLOSED for statistical purposes.

/s William H. Yohn Jr., Judge

________________________________

 William H. Yohn Jr., Judge

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