In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-4005

H ECTOR S ANDOVAL,
                                            Petitioner-Appellant,
                               v.

U NITED S TATES OF A MERICA,
                                            Respondent-Appellee.


           Appeal from the United States District Court
                for the Central District of Illinois.
           No. 4:04-cv-4056—Joe Billy McDade, Judge.



       A RGUED A PRIL 17, 2009—D ECIDED JULY 31, 2009




 Before F LAUM, E VANS, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. Hector Sandoval, a Mexican
national, held a man captive at gunpoint following a
drug deal gone awry. For this conduct, he was charged
with, and a jury convicted him of, kidnapping and
using and carrying a gun during a crime of violence.
He filed a 28 U.S.C. § 2255 motion arguing that the gov-
ernment violated his rights under Article 36 of the Vienna
Convention on Consular Relations by failing to notify
2                                             No. 07-4005

Sandoval of his right to access the Mexican consulate
following his arrest. Because Sandoval procedurally
defaulted his consular notification claim, we affirm the
denial of his § 2255 motion. We also decline to expand
Sandoval’s certificate of appealability because he has not
made a substantial showing of the denial of a constitu-
tional right with respect to the performance of his trial
counsel.


                  I. BACKGROUND
  Hector Sandoval was charged with kidnapping in
violation of 18 U.S.C. § 1201(a)(1) and using and carrying
a firearm during and in relation to a crime of violence
in violation of 18 U.S.C. § 924(c). At Sandoval’s trial,
Frank Rivas testified that Sandoval’s uncle, Marcelo
Sandoval (“Marcelo”), kidnapped Rivas because of a
drug deal gone bad. The kidnappers snatched Rivas in
Iowa and transported him to Marcelo’s house in Chicago.
Rivas testified that Sandoval held him at gunpoint in
Marcelo’s house. After receiving a tip from Rivas’s wife,
Chicago police entered Marcelo’s home, rescued Rivas
and arrested Marcelo and Sandoval. Sandoval testified
at trial that he was not involved in the kidnapping and
was at Marcelo’s house only to visit Marcelo’s children
and that he thought Rivas was a houseguest. After the
jury convicted Sandoval on both counts, the district court
sentenced him to 121 months’ imprisonment for kid-
napping, a 120-month consecutive term of imprison-
ment for the firearm charge, and three years’ supervised
release. Sandoval filed a direct appeal attacking the
No. 07-4005                                               3

indictment, venue, the prosecutor’s opening and closing
statements, and the use of an uncertified interpreter at
trial. On October 20, 2003, we affirmed his conviction.
United States v. Sandoval, 

(7th Cir. 2003).
  Sandoval, who does not speak, read, or write English and
has a limited education, subsequently filed a pro se § 2255
motion arguing that his attorney provided ineffective
assistance by not calling an alibi witness at trial and that
the government violated his rights under the Vienna
Convention. He also made two other claims that are not
at issue in this appeal. A fellow inmate assisted Sandoval
in writing the petition. The district court appointed
counsel to represent Sandoval, and the new counsel filed
an amended § 2255 motion. But after Sandoval com-
plained to the court about his representation the court
reinstated Sandoval’s pro se motion. The district court
denied the pro se motion without an evidentiary
hearing, determining that Sandoval procedurally defaulted
his Vienna Convention claim because he did not raise it on
direct appeal and further found he did not demonstrate
prejudice based on the government’s failure to notify
him that he was entitled to consular assistance. The
district court also denied his certificate of appealability
(“COA”), but we later granted it. See Sandoval v. United
States, No. 04-4056, 

, at *2 (C.D. Ill. Dec.
17, 2007); Sandoval v. United States, No. 07-4005 (7th Cir.
Apr. 15, 2008) (unpublished order) (Ripple, J.). Circuit
Judge Ripple found that Sandoval made a substantial
showing of the denial of his rights under the Vienna
Convention and ordered the parties to address whether
Sandoval defaulted review of this claim. We also ap-
pointed counsel to represent Sandoval on appeal.
4                                               No. 07-4005

  Sandoval’s new counsel presents two arguments: that
his rights under the Vienna Convention were violated
and that his trial counsel provided ineffective assistance
for not remedying the violation and for introducing the
sole piece of evidence placing him in Iowa when the
kidnapping initially occurred.


                      II. ANALYSIS
    A. The district court properly denied Sandoval’s § 2255
       motion.
  When a district court denies a 28 U.S.C. § 2255 motion
to vacate, set aside, or correct a criminal conviction and
sentence, we review questions of law de novo and
findings of fact for clear error. Hall v. United States, 

, 972 (7th Cir. 2004). The court should grant an
evidentiary hearing on a § 2255 motion when the
petitioner “alleges facts that, if proven, would entitle him
to relief.” Id.; § 2255(b).
  Sandoval’s pro se § 2255 motion claimed ineffective
assistance of counsel and launched attacks on the prosecu-
tor and the trial judge. Also, Sandoval argued that the
government violated his rights under Article 36 of the
Vienna Convention, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S.
No. 6820, 596 U.N.T.S. 261. Sandoval never stated
explicitly that his counsel was ineffective for not
notifying him of his right to consular notification and
assistance or seeking a remedy for the government’s
failure to notify him.
No. 07-4005                                                 5

  On appeal, Sandoval contends that his trial counsel
provided ineffective assistance of counsel for not
informing him of the government’s failure to notify him
and for not seeking any remedy for the failure at trial. The
government concedes that it never notified Sandoval of
his right to seek consular assistance and that it never
notified the Mexican consulate of Sandoval’s detention.
However, the government argues that Sandoval pro-
cedurally defaulted this claim and did not provide cause
for his failure to timely raise the claim at trial or on
direct appeal. Additionally, the government maintains
that Sandoval never argued in his § 2255 motion that
his trial counsel was ineffective for not seeking a
remedy and that even if he had, he was not prejudiced by
the lack of consular notification.
  Article 36 of the Vienna Convention provides that when
authorities arrest a foreign national he has the right to
contact his consulate and that the government must
inform the arrestee of that right. See Jogi v. Voges, 

, 835 (7th Cir. 2007). When a foreign national is de-
tained, Article 36 imposes three obligations on the arrest-
ing authority. The law enforcement agency must:
“(1) inform the consulate of a foreign national’s arrest
or detention without delay; (2) forward communications
from a detained national to the consulate without delay;
and (3) inform a detained foreign national of his rights
under Article 36 without delay.” See Osagiede v. United
States, 

, 402 (7th Cir. 2008) (internal quotation
marks omitted). In addition to providing a “cultural
bridge” between the foreign detainee and the American
legal system, the consulate may also “conduct its own
6                                                   No. 07-4005

investigations, file amicus briefs and even intervene
directly in a proceeding if it deems that necessary.” 

  The district court correctly concluded that Sandoval’s
claim was procedurally barred because claims cannot be
raised for the first time in a § 2255 motion if they could
have been raised at trial or on direct appeal, and the
rules of procedural default apply to the Vienna Conven-
tion. See Ballinger v. United States, 

, 429 (7th
Cir. 2004); see also Sanchez-Llamas v. Oregon, 

,
356 (2006). In an attempt to overcome this procedural
bar, Sandoval raises an ineffective assistance of counsel
claim. His attempt is problematic, however, because he
did not explicitly link his Sixth Amendment claim with
his Article 36 claim in his pro se motion. Nevertheless,
even if we were to liberally construe his pro se motion,
especially in light of his inability to speak, read, or write
English, Sandoval would still lose on the merits because
he suffered no prejudice under the standard set forth
in Strickland v. Washington, 

, 694 (1984).1
  As to prejudice, Sandoval claims he had difficulty,
before and during the trial, communicating with his
attorney and understanding the trial proceedings
because he does not speak English. But a court-appointed
translator took part in the trial, and, in his direct appeal,


1
  Sandoval also fails to show cause or actual prejudice
resulting from his failure to timely raise this claim at trial or
on direct appeal. See Torzala v. United States, 

, 522
(7th Cir. 2008).
No. 07-4005                                              7

we concluded that Sandoval failed to prove the uncerti-
fied interpreter was incompetent, which deflates this
argument. See 

. Sandoval further
contends that the consulate could have communicated
with Spanish-speaking defense witnesses located in
Mexico. We find this argument unpersuasive because
Sandoval failed to show how these unidentified wit-
nesses would have assisted in his defense at trial.
  Sandoval’s argument that the record must be further
developed to show what prejudice he may have
suffered fares no better than his others. Sandoval is
correct that ineffective assistance claims often require
evidentiary hearings because they allege facts that the
record does not show. See 

. But to
establish the need for an evidentiary hearing to demon-
strate prejudice for an Article 36 violation, a foreign
national must “show a realistic prospect of consular
assistance and provide some credible indication of facts
reasonably available to him to support his claim.” 

Unfortunately for Sandoval, he has not made such
a showing and the facts of his case are distinguishable
from our recent decision Osagiede. In Osagiede, we
granted the § 2255 petition of a Nigerian national and
remanded his claim that his attorney provided ineffec-
tive assistance by not seeking a remedy for violation of
his Article 36 rights. Unlike Sandoval, Osagiede clearly
raised an ineffective assistance claim in his pro se
motion by stating that his Article 36 rights were
violated and “his lawyer did nothing about it.” 

Moreover, we determined that Osagiede came “a long
8                                             No. 07-4005

way toward showing that he deserves an evidentiary
hearing.” Id at 413. Specifically, we relied on Osagiede’s
special need for help in translating and analyzing the
wiretap tapes used against him that contained speakers
with heavy Nigerian accents, which were difficult to
decipher and were not fully analyzed by an expert. 

noted that a government witness mistook
Osagiede for his cousin who could not be located in
Nigeria and may have been the man speaking on the
tapes. 

a language barrier, which was addressed by
the use of an interpreter, Sandoval shows no other preju-
dice he may have faced by not being put in touch with
the Mexican consulate. Many Mexican nationals face
criminal trials in this country, and Sandoval has not
shown that the Mexican consulate would have chosen to
assist him in particular, nor has he shown what type
of assistance the consulate could have provided that
would have helped his case. Therefore, we affirm the
district court’s denial of Sandoval’s § 2255 motion.


    B. We decline to expand Sandoval’s Certificate of
       Appealability.
  Pursuant to 28 U.S.C. § 2253, a habeas corpus petitioner
may appeal only those issues for which a COA has been
granted. We have held in the past that if a COA is
granted as to one issue, but the petitioner later makes a
substantial showing of the denial of a constitutional
right as to a different one, we will amend the COA to
include the latter claim. See § 2253(c)(2); Ouska v.
No. 07-4005                                                  9

Cahill-Masching, 

, 1045 (7th Cir. 2001). A
petitioner makes a “substantial showing where rea-
sonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were ade-
quate to deserve encouragement to proceed further.”
Arredondo v. Huibregtse, 

, 1165 (7th Cir. 2008)
(internal quotation marks and citations omitted). When
expansion of the COA is not warranted, the court need
not address the arguments outside of the COA. See

.
  We decline to enlarge Sandoval’s COA to include
whether his trial counsel was ineffective for attempting
to impeach Rivas with his prior testimony at Marcelo’s
trial that Sandoval had been in Iowa when he was kid-
napped. We conclude that although the choice of
Sandoval’s attorney to elicit this testimony may have not
have been the best strategic decision, we cannot say that
it fell below the standard of competency. Sandoval’s
attorney wanted the jury to believe that Rivas could not
keep his story straight, but his strategy backfired. Having
reviewed the record and considered Sandoval’s discussion
of this issue, we decline to expand his COA to include
this claim because Sandoval cannot show that reasonable
jurists could debate whether Sandoval’s trial attorney
provided ineffective assistance of counsel by eliciting this
testimony. See Dalton v. Battaglia, 

, 739 (7th Cir.
2005).
10                                            No. 07-4005

                  III. CONCLUSION
 Therefore, we A FFIRM the decision of the district court.




                          7-31-09