Opinion
Civil Action No. 98-5280 (JBS)
April 28, 1999
Jose Antonio Rosetti, F.C.I. Fort Dix, Fort Dix, New Jersey, Petitioner Pro Se.
Faith S. Hochberg, United States Attorney, By: Irene E. Dowdy, Assistant U.S. Attorney, Trenton, New Jersey, Attorneys for Respondent.
MEMORANDUM OPINION DENYING RECONSIDERATION
This matter is before the court on petitioner Jose Antonio Rosetti's motion to alter judgment under Federal Rule of Civil Procedure 59(e). Petitioner had filed a petition for habeas corpus, pursuant to 28 U.S.C. § 2241, seeking to set aside his conviction that had been imposed in the United States District Court for the Southern District of Florida on April 21, 1994, having plead guilty to possession with intent to distribute at least 5 kilograms of cocaine. This court, by Memorandum Opinion and Order filed January 27, 1999, determined that this petition was actually seeking relief available only from the sentencing court under § 2255, and that the petition was time-barred, having been filed on December 7, 1998, well beyond the one-year statute of limitations prescribed by the AEDPA amendment to § 2255, effective April 24, 1996. This court therefore dismissed the petition with prejudice.
On February 4, 1999, petitioner sought reconsideration, arguing that his rights had been violated under the Vienna Convention on Consular Relations at the time of his arrest leading to the 1994 guilty plea and conviction. He alleges that on December 10, 1998, the Supreme Court stayed execution of Joseph Stanley Faulder in the matter of "Faulder v. Johnson," allegedly due to the violation of the Vienna Convention on Consular Relations, Art. 36b. He claims this is "exactly the same issue as the petitioner is litigating in the case at bar."
In Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996), cert. denied, 519 U.S. 995 (1996), the Fifth Circuit affirmed a district court's denial of a petition for writ of habeas corpus by a Canadian citizen who had been convicted of capital murder in state court in Texas despite the admitted failure by Texas authorities to advise the petitioner of his rights under the Vienna Convention, finding that the evidence Canadian authorities would have obtained was "merely the same or cumulative" of evidence the petitioner's defense counsel actually obtained or could have obtained. On December 10, 1998, the Supreme Court granted a stay of the execution of the petitioner's sentence of death pending the disposition of a petition for writ of certiorari. Faulder v. Johnson, U.S., 119 S.Ct. 614, 142 L.Ed.2d 554 (1998). Several weeks later, however, the Supreme Court denied Faulder's petition for writ of certiorari. Faulder v. Johnson, 67 U.S.L.W. 3468 (Jan. 26, 1999). In accordance with the December 10, 1998 Order, the stay terminated automatically upon the denial of Faulder's petition for writ of certiorari.
If petitioner is arguing that the temporary stay of execution in theFaulder case should give rise to reconsideration of the January 27, 1999 decision of this court, he is mistaken. This court has fully considered whether the petitioner's claim arises under § 2241 as he alleged, or under § 2255, applying the teachings of In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997). His claim, that a right to consular notification upon the occasion of his arrest under the Vienna Convention was violated and that his subsequent conviction should be set aside, has never been recognized by the Supreme Court as a ground for collateral attack upon a conviction. More to the point of the present inquiry, this is not an instance in which the Supreme Court has first recognized such a right in a manner giving rise to a new one-year limitation period in which to bring this petition for post-conviction relief under the third exception to the limitation period of § 2255. The Supreme Court has announced no new right to assert the Vienna Convention for the first time as a ground for setting aside a conviction in post conviction review. Therefore, the time within which petitioner should have filed a petition to challenge his conviction upon this ground expired on April 24, 1997 — one year after the AEDPA amendment to § 2255 became effective. Burns v. Morton, 134 F.3d 109, 111-112 (3d Cir. 1998). UnlikeIn re Dorsainvil, this is not a situation in which a previously unavailable and retroactively applicable new rule of constitutional law has been recognized, so this case does not fall into the "exceptional circumstances" test of that case.
As explained in the Memorandum Opinion of January 27, 1999, a motion for relief from a prior conviction under § 2255 will be timely if it is brought within one year of "the date on which a right asserted by a movant was first recognized by the Supreme Court and made retroactive to cases pending on collateral review." Id .
Petitioner's reconsideration motion makes mention of the filing of his "Traverse" in reply to the Government's opposition to his underlying petition on January 27, 1999, the same date as the court's Memorandum and Order were filed. Petitioner argues that the court did not consider his Traverse before deciding his petition. Petitioner is correct, but the Traverse raises nothing new about his arguments on the Vienna Convention or the untimeliness of his petition. The Traverse alleges that his defense attorney was guilty of ineffective assistance of counsel by not advising him of his right to contact his consulate upon his arrest, under the Vienna Convention. He alleges that the Assistant U.S. Attorney handling his prosecution and, indeed the local Assistant U.S. Attorney representing the respondent herein, also have failed to advise him of his right to contact his consulate. The Traverse cites the case of Murphy v. Netherland, 116 F.3d 97 (4th Cir.), cert. denied, 521 U.S. 1144 (1997), for the proposition that defense counsel is ineffective if the attorney does not advise the client of the right to contact his consulate upon his arrest. Contrary to petitioner's assertion, the Fourth Circuit held no such thing. In Murphy, the court held that the Vienna Convention "certainly does not create constitutional rights." Id. at 100. Moreover,Murphy arose from a state court conviction, and applied the procedural bar arising from the petitioner's failure to show cause and prejudice for failure to have raised it before the state courts. Id. In the present case, even if one were to assume that counsel failed to advise Rosetti of his right to consult with the Colombian consulate, petitioner would have known of this circumstance since the time of his conviction in 1994 and yet failed to raise it before the sentencing court at any time to date. As with any other allegation of ineffective assistance of counsel, the time bar of § 2255 precludes relief where the circumstances, as here, do not fall into the statutory exceptions thereto.
Although this court does not reach the merits of petitioner's ineffective assistance of counsel claim because it is time-barred, it is noted that petitioner has not demonstrated how his Florida counsel's alleged unprofessional errors prejudiced his defense within the meaning of Strickland v. Washington , 466 U.S. 668 (1984). Petitioner "is unable to explain how contacting the [Colombian] consulate would have changed either his guilty plea or his sentence." Murphy , 116 F.3d at 100 .
CONCLUSION
For these reasons, the court denies Rosetti's motion to alter judgment under Rule 59(e). The accompanying Order is entered.ORDER
THIS MATTER having come before the court on petitioner Jose Antonio Rosetti's motion to alter judgment, pursuant to Federal Rule of Civil Procedure 59(e), in which petitioner seeks reconsideration of the court's Memorandum Opinion and Order of January 17, 1999 dismissing his petition for writ of habeas corpus under 28 U.S.C. § 2241, and the court having considered the submissions of the parties, and for the reasons set forth in the accompanying Memorandum Opinion Denying Reconsideration;
IT IS on this day of April, 1999, hereby ORDERED that petitioner's motion to alter judgment is DENIED.