Johnbull K. Osagiede, a Nigerian national, pleaded guilty to one count of heroin distribution and was sentenced to more than eight years in federal prison. On April 25, 2006, he filed a pro se petition for a writ of habeas corpus in the Northern District of Illinois.
See
28 U.S.C. § 2255(a). He claimed, inter alia, that he
*402
was denied his Sixth Amendment right to the effective assistance of counsel,
see Strickland v. Washington,
Osagiede then filed a pro se application for a certificate of appealability. See 28 U.S.C. § 2253(c)(1). We construed Osag-iede’s petition liberally and determined that he had made a “substantial showing” of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). We framed the relevant issue as follows: whether Osagiede’s counsel was ineffective for failing to seek a remedy for the Article 36 violation.
I.
The Vienna Convention “is an international treaty that governs relations between individual nations and foreign consular officials.”
Sanchez-Llamas v. Oregon,
The Convention contains seventy-nine articles, many of which address the rights of local consulates and consular officials, the respective obligations of sending and receiving nations and matters such as tax-exempt status and legal immunity. Article 36, however, is unique: it is phrased in terms of the detained foreign national and his or her individual rights.
See Jogi v. Voges (Jogi II),
Article 36 furthers an essential consular function: “protecting ... the interests of *403 the sending State and of its nationals.” Vienna Convention, arts. 5(a), (e), 21 U.S.T. at 82-83. This “protective function” is one of the most important functions performed by a consulate. Lee, CONSULAR Law and PRACTICE 125-88. Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 Wm. & Mary Bill Rts. J. 363, 392-93 (2004).
In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 Am. J. Int’l L. 87, 89-90 (1998). Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Spring-rose, Note, Strangers in a Strange Land: The Rights of Norir-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 Geo. Immigr. L.J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges. 1
Obviously, the consulate can also assist in more practical ways. The consulate can do more than simply process passports, transfer currency and help contact friends and family back home. The consulate can provide critical resources for legal representation and case investigation. Indeed, the consulate can conduct its own investigations, file amicus briefs and even intervene directly in a proceeding if it deems that necessary. Lee, ConsulaR Law and Practice 125-88. Importantly, the consular officer may help a defendant in “obtaining evidence or witnesses from the home country that the detainee’s attorney may not know about or be able to obtain.”
2
Springrose,
Strangers in a Strange Land,
*404
II.
On August 30, 2002, Osagiede met a man named Michael Braxton in a Sears parking lot in Chicago, Illinois. Osagiede handed Braxton a clear plastic bag containing 25 grams of heroin. Braxton handed him $3,000 in cash. Unbeknownst to Osagiede, Braxton was already in trouble with the law and had agreed to cooperate with federal law enforcement agents. The August 30, 2002 transaction was the second of two “controlled buys” that had been arranged by federal agents who had placed the participants under surveillance. Federal agents arrested Osagiede on March 13, 2003. The Government faxed a consular notification form to the Nigerian Consulate on the same day. The Government concedes, however, that it never notified Os-agiede of his right to contact the Nigerian consulate, as Article 36 and federal regulations require.
Five days later, Osagiede and two co-defendants (Braxton and Henry Hicks) were charged in a superseding indictment with four counts of heroin distribution and conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Attorney Kenyatta Tatum served as Osagiede’s counsel for most of the proceedings. Tatum never informed Osagiede of his Vienna Convention rights and never raised the issue with the Government or with the presiding judge. On January 9, 2004, after Tatum insisted that Osagiede would face only an eighteen-month sentence, he pleaded guilty plea to one count of distributing 25 grams of heroin. See 21 U.S.C. § 841(a)(1).
The base sentencing level for the felony distribution of 25 grams of heroin was 18. The Government, however, planned to rely on co-defendant testimony and nine wiretapped recordings to establish that Osag-iede had actually distributed 1,300 grams of heroin in similar drug transactions. This “relevant conduct” would increase Os-agiede’s base offense level to 32, creating a sentencing range of 121 to 151 months. In a sentencing proceeding before Judge Lef-kow, Braxton and Hicks both testified against Osagiede. Braxton, who had closer contact with Osagiede than did Hicks, estimated that he had bought approximately 1,300 grams of heroin from Osag-iede. Braxton also admitted, however, that when he was asked by federal agents to identify Osagiede in a photo, he mistook Osagiede for his cousin, Akeem Lasisi, with whom Braxton also dealt. There were also questions about whether the phone number called by Braxton to set up the deals belonged to Osagiede or Lasisi. Lasisi had apparently returned to Nigeria and was nowhere to be found. The Government had made little or no effort to find him, despite his connections to the case.
Because of the inconsistencies in Brax-ton’s testimony, it was important that the Government have corroborating evidence. The voices on the tape recordings, however, were difficult to decipher because the men had strong Nigerian accents. Osag-iede vigorously denied that it was his voice on the tapes. Tatum told Osagiede that the only way to dispute the accuracy of the tapes was to hire an expert. Osagiede’s family scrounged up the money, and Tatum sent the tape recordings to a voice analysis expert. For reasons that are somewhat unclear, the expert was only able to properly analyze one of the nine tapes. The analyst determined that the one recording that was properly analyzed did not contain Osagiede’s voice. Tatum offered the analyst’s report to the district *405 judge at the sentencing hearing. Surprisingly, the Government admitted that Osag-iede was not the man speaking on the ninth tape recording. The other recordings, however, appear to have been allowed in as evidence. The district court then found by a preponderance of the evidence that Osagiede had committed the relevant conduct and determined his base offense level to be 32.
Osagiede was finally sentenced on May 17, 2005 in a proceeding before Judge Ko-coras. Osagiede explained that he had fallen in with the wrong crowd since his arrival in the United States. What he really wanted to do was to pursue an education — his family has a proud tradition of academic success — and he vowed to set himself back on track. The district judge noted that the evidence of relevant conduct presented “a close call.” That issue, however, was already decided. The district judge sentenced Osagiede to 97 months in prison, which was below the recommended U.S. Sentencing Guidelines range. Osag-iede did not appeal.
On April 25, 2006, Osagiede filed a pro se petition for a writ of habeas corpus in the Northern District of Illinois, contending, inter alia, that he was denied his Sixth Amendment right to the effective assistance of counsel.
See Strickland,
On December 13, 2006, Judge Korcoras denied the petition without holding an evi-dentiary hearing. The district judge did not revisit the “close call” on relevant conduct or the problems with the tape recordings. (Judge Lefkow had been the presiding judge at the relevant conduct hearing.) Judge Korcoras explained that dismissal of the indictment had never been recognized as a remedy for an Article 36 violation. Thus, it would have been “extremely unlikely that a motion to dismiss the indictment by Osagiede’s attorney would have been successful.” Osagiede’s counsel was not ineffective for failing to raise an argument likely to fail.
Osagiede then filed a pro se application for a certificate of appealability on January 4, 2007, which we must accord a liberal construction.
See Bruce v. United States,
Of course, Osagiede is required to construct his basic argument and to allege facts sufficient to support it. Here, Osagiede alleged a recognized and undisputed violation of his rights, under the federal regulation if not under the Convention it
*406
self.
See Galbraith v. United States,
On May 22, 2007, we issued a certificate of appealability to Osagiede, finding that he had made at least a “substantial showing of the denial of a constitutional right” under the Sixth Amendment. 28 U.S.C. § 2253(c)(2). Osagiede is entitled to an evidentiary hearing unless “the files and the records of the case conclusively show that [he] is entitled to no relief.” See 28 U.S.C. § 2255(b).
III.
Ineffective assistance of counsel claims are, of course, brought to vindicate the Sixth Amendment right to counsel, since the right to counsel is the right to
effective
counsel.
See Strickland,
The Government has taken the rather extreme position that Osagiede’s ineffective assistance of counsel claim — indeed, any ineffective assistance of counsel claim based upon an Article 36 violation — fails Strickland as a matter of law. The Government asserts that no court has ever recognized that Article 36 confers individual rights in a criminal proceeding. Even if such rights were to exist, the Government argues, the Vienna Convention provides no remedy for their violation. Instead, the sole means of enforcing the Convention are through political and diplomatic channels. At oral argument, the Government even suggested that it would be inappropriate for us to entertain an ineffective assistance of counsel claim based on an Article 36 violation. That would be tantamount to recognizing a remedy for a Vienna Convention violation, something the Government believes to be verboten.
We must take a moment here to unpack the Government’s argument. To begin, we believe that the Government has failed to fully appreciate the distinction between treaty-based claims and constitutional claims. Because this is a Sixth Amendment ineffective assistance of counsel claim, it is controlled by Strickland and its familiar two-prong test. Whether rights and remedies are available under Article *407 36 of the Vienna Convention is relevant only to the extent that it helps prove or disprove one of these elements. As we know, the distinction between rights and remedies is often a slippery one. For simplicity’s sake, we will discuss the question of individual rights under the deficient performance prong and the question of remedies under the prejudice prong. As we shall explain, we have always assumed that Article 36 confers individual rights, even in the criminal setting, and we stand by that position today. Further, we believe that there was a viable (and simple) remedy for the Article 36 violation alleged in this case: counsel could have informed Osagiede of his right to consular assistance and the violation could have been raised with the judge presiding at trial.
Before proceeding to our
Strickland
analysis, however, we must address the Government’s argument that
Sanchez-Llamas
forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of
Sanchez-Llamas
suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.”
Sanchez-Llamas,
More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless
“the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas,
Thus, we reject the notion that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 viola *408 tions. In fact, Scmchez-Llamas appeal's to express a preference for subsuming Vienna Convention claims in broader constitutional attacks, rather than basing relief entirely on the treaty itself. With this general matter settled, we move to our Strickland analysis. 4
IV.
To establish an ineffective assistance of counsel claim, Osagiede must show that (1) his counsel’s performance fell below an objective standard of reasonableness when measured against “prevailing professional norms,” and (2) but for the deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different.
Strickland,
We review the denial of an evidentiary hearing for abuse of discretion.
See Bruce,
An evidentiary hearing on a § 2255 motion is required unless the record “conclusively show[s] that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Ineffective assistance claims often require an evidentiary hearing because they frequently allege facts that the record does not fully disclose.
See Shaw v. United States,
A.
Effective performance by counsel representing a foreign national in a criminal proceeding is reasonable performance “under prevailing professional norms.”
Strickland,
Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.”
Julian v. Bartley,
The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile.
See Rodriguez v. United States,
We also believe that an Illinois lawyer, in particular, would have known to raise the Article 36 violation. In the wake of
Breard,
three district courts in Illinois had squarely held that the Vienna Convention created individually enforceable rights.
See Madej v. Schomig,
No. 98 C 1866,
After
Chaparro-Alcantara
and
Torres-Del Muro
were decided, the International Court of Justice issued two landmark decisions holding that Article 36 did, in fact, provide the detained foreign national with individual rights. See
LaGrand Case (Germany v. United States),
2001 I.C.J. 466 (June 27, 2001);
Case Concerning Avena & Other Mexican Nationals (Mexico v. United States),
2004 I.C.J. 128 (March 31, 2004). The dramatic legal and political developments that led up to the
LaGrand
and
Avena
cases drew widespread attention at local, national and international levels.
10
Shortly after
LaG-rand,
the Northern District of Illinois ruled that
LaGrand
had settled the issue of whether the Vienna Convention conferred individual rights.
See Madej,
Further, at the time of Osagiede’s sentencing, the Illinois Institute for Continuing Legal Education’s
Guide for Defending Illinois Criminal Cases
stated in unequivocal terms: “Attorneys should advise all non-citizens clients that they have the right to consular notification of their arrest under the Vienna Convention and that such notification request should be made part of any assertion of rights to silence and counsel.... [Attorneys representing non-citizens clients should advise them to invoke the Vienna Convention rights to the police and prosecutors at the police station and to the judge at the initial court appearance and should raise the issue during any motion to suppress statements.” Defending ILLINOIS CRIMINAL CASES § 4.2 (2003). As the Supreme Court has stated, “[prevailing norms of practice as reflected in American Bar Association standards and the like ... are guides to determining what is reasonable.”
Strickland,
at 688-89,
To summarize, the Vienna Convention was the “Law of the Land” at the time, and 28 C.F.R. § 50.5 required federal agents to comply with it. Professional guidelines instructed lawyers to inform their clients of Article 36 rights. There were hundreds of cases in which courts had addressed those rights, even in a criminal setting, and these cases generated a decent amount of fanfare. Indeed, the district in which Osagiede’s case was being heard had just ruled that foreign nationals had individual rights under Article 36. In this climate, we believe that Illinois criminal defense attorneys representing a foreign national in 2003 should have known to advise their clients of the right to consular access and to raise the issue with the presiding judge. 12
Of course, counsel may have a strategic reason for not doing so. In
Sanchez-Llamas,
for example, “defense counsel was the son of Salvadoran diplomats and was familiar with Article 36 issues, but he decided it would be better to limit the number of people to whom his client spoke.”
See
Kadish & Olson,
The Supreme Court, The Right to Consul, and Remediation,
27 Mioh. J. Int’l L. at 1219. There is no evidence of a strategic decision in this record. Indeed, there is no evidence that Osagiede’s counsel was even aware of Article 36 or the federal regulations enforcing it. While the Government claims that Osagiede’s counsel used Lasisi as a “specter” to cast doubt on the Govern-
*412
merit’s case, we have reviewed that portion of the sentencing transcripts and we are not persuaded. Ineffective assistance claims generally require an evidentiary hearing if the record contains insufficient facts to explain counsel’s actions as tactical.
See Leonti,
B.
We turn to the prejudice prong. Osagiede must show that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland,
As we promised, we will now address the Government’s argument that Osagiede could not show prejudice because there is no remedy for an Article 36 violation. In support, the Government relies on a series of cases that have held that suppression of evidence and dismissal of the indictment are inappropriate remedies for an Article 36 violation. The Government, however, has failed to show why these cases are relevant here. In their brief before the district court, the Government noted that Osagiede had not made any post-arrest statements and that no evidence was obtained as a result. The suppression cases are thus inapposite, see,
e.g., Li,
There is, however, a more fundamental flaw in the Government’s position on remedies. The Government seems to assume that the only recourse available to Osagiede’s counsel would have been to file a motion for suppression or for dismissal, or perhaps to let the proceedings run their course and then raise the Article 36 violation on appeal. The Government focuses inordinately on backward-looking remedies and ignores the fact that the
trial court judge
is in a unique position to remedy an Article 36 violation before prejudice has occurred.
Cf. Breard v. Pruett,
If Article 36 has been violated and counsel has failed to remedy the violation, the question becomes whether Osagiede is entitled to an evidentiary hearing to deter *413 mine whether he has been prejudiced by the failure to invoke the Convention. Two of the major issues to be determined by an evidentiary hearing would be whether the Nigerian consulate could have assisted Os-agiede with his case and whether it would have done so. In order to merit an evi-dentiary hearing, Osagiede must indicate how he proposes to show a realistic prospect of consular assistance and provide some credible indication of facts reasonably available to him to support his claim. The district court, based in major part on these indications, may then exercise its discretion to conduct a hearing.
To show that concrete prejudice flowed from the deprivation of his right to notification, Osagiede must explain the nature of the assistance he might have received had he been alerted to his Article 86 rights. The record does reveal that Osag-iede had a special need for services typically within the power of the consulate. Here, at the relevant conduct hearing, the Government presented nine tape recordings that allegedly contained Osagiede’s voice. The tapes were difficult to decipher, however, because the speakers had strong Nigerian accents. In the end, only one of these recordings was properly analyzed. The Nigerian consulate might, perhaps, have provided the funds for a proper analysis of these tapes. The Nigerian Consulate might have been able to identify regional dialects, offer an accurate voice analysis or even translated the wiretaps itself. The Consulate could presumably have also, located Lasisi, who was by then in Nigeria, and taken a statement from him. See, e.g., supra, n. 3 (describing the evidence gathered by the Mexican consulate in Sanchez-Llamas). Lasisi was, after all, the man who had been previously mistaken for Osagiede and the man who may have been speaking on the tape recordings. The Nigerian Consulate appears to have been well situated and well equipped to provide Osagiede with this kind of assistance. Thus, Osagiede has gone a long way toward showing that he deserves an evidentiary hearing.
Osagiede, however, faces another obstacle: having shown that the Nigerian consulate could have assisted him, he must also show that the Nigerian consulate would have assisted him. The decision to render assistance to a foreign detainee, which gives significance to the obligations imposed by the Convention, rests in the discretion of the Nigerian consulate. Perhaps the Nigerian consulate does not get involved in criminal matters; perhaps it would not have been persuaded that Osag-iede deserved its assistance; perhaps it would have declined for other reasons. Osagiede must provide the district judge with a credible indication that the Nigerian consulate was in fact ready to render assistance in his case. These indications do not necessarily have to come in the form of an actual presentation in advance of the hearing of official documents, statements or affidavits from the Nigerian consulate, although such evidence might well be presented later at the hearing. In the case before us, a credible assertion of the assistance the consulate would have provided would entitle the petitioner to an evidentia-ry hearing. 13
V.
We cannot say that the record “conclusively shows” that Osagiede is not entitled to relief on his Sixth Amendment claim. *414 See 28 U.S.C. § 2255(b). Osagiede’s petition is GkaNted, the district court order is VaCated and the case is Remanded for further proceedings in accord with this opinion.
Notes
. Springrose offers
Breard v. Pruett,
. Sanchez-Llamas provides a striking example. In Sanchez-Llamas, Bustillo's defense was that another man, "Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. "Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sire-na.” Mark J. Radish & Charles C. Olson, Sanchez-Llamas v. Oregon and Article 36 of the Vienna Convention on Consular Relations: The Supreme Court, The Right to Consul, and Remediation, 27 Mich. J. Int’l L. 1185, 1218 (2006).
. This was also the case in
Medellin v. Texas (Medellin II),
552 U.S. -,
. We find no problem with
Teague v. Lane,
. We note that the Government has not addressed the issue of whether the foreign detainee had a right under 28 C.F.R. § 50.5, which is a separate matter.
See, e.g., United States v. Calderon-Medina,
.
See, e.g., Standt v. City of New York,
.
See, e.g., Sanchez-Llamas,
. We have since held that Article 36 does confer individual rights.
See Jogi II,
. Of course, none of this obscures the fact that the United States Supreme Court has never upheld the Vienna Convention as a source of individual rights or obviated the possibility that the Court might, in the future, reach a contrary conclusion. Until the Court chooses to do so, however, we continue to assume that such rights exist.
. See, e.g., Roger Cohen, U.S. Execution of German Stirs Anger, N.Y. Times, March 5, 1999, at A14; Raymond Bonner, U.S. Bid to Execute Mexican Draws Fire, N.Y. Times, October 30, 2000, at A20; Douglass W. Cassel Jr., Executions Land U.S. in Court, Chicago Daily Law Bulletin, November 17, 2000, at 5; Marlise Simons, World Court Finds U.S. Violated Consular Rights of 2 Germans, N.Y. Times, June 28, 2001, at A10; Peter Finn, Court: U.S. broke pact by executing German in 1999, Chicago Tribune, June 28, 2001, at 4; Ginger Thompson, An Execution in Texas Strains Ties With Mexico and Others, N.Y. Times, August 16, 2002, at A6; Marlise Simons, World Court Tells U.S. to Delay Executing 3, N.Y. Times, February 6, 2003, at A13; Toby Sterling, World Court orders U.S. to stay executions of 3 Mexicans, Chicago Tribune, February 6, 2003, at 3.
.Subsequent decisions have made clear that
LaGrand
and
Avena
did not conclusively settle
*411
the issue.
See generally Medellin II,
552 U.S. -,
. There is a certain irony to the Government's claim that a reasonably competent attorney would not have known to have at least raised an Article 36 violation. Even before
Breard,
courts had recognized that Vienna Convention claims were commonplace and that they would be deemed waived if they were not raised by counsel.
See Murphy,
. Of course, if Osagiede obtains an eviden-tiary hearing, he will then have to do more than show a credible indication of the services the consulate would have provided. He will have to provide evidence sufficient to prove he was prejudiced by the failure to notify him of his Article 36 rights.