Omololu Valen Ademodi, petitioner,
Respondent,

v.

State of Minnesota,
Appellant.

Hennepin County District Court
File No. 90063152

Peter J. Timmons, Metro Office Park, Suite 321, 2850 Metro Drive, Bloomington, MN 55425 (for respondent)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Amy Klobuchar, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for appellant)

Considered and decided by Crippen, Presiding Judge, Short, Judge, and Forsberg, Judge[*].

SHORT, Judge

In 1990, a jury convicted Omololu Valen Ademodi of a controlled substance crime in the first degree in violation of Minn. Stat. § 152.021, subd. 1 (1990). The trial court sentenced him to a prison term of 86 months. In 1992, Ademodi appealed his conviction and sentence. After this court remanded for resentencing, the trial court stayed imposition of sentence, gave Ademodi credit for time served, and placed him on probation. In 1998, Ademodi filed a petition for postconviction relief. On appeal from an order vacating and expunging the 1990 cocaine sale conviction, the state argues any alleged Vienna Convention issue is barred because it was not raised by direct appeal. See State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding claims known but not raised on direct appeal barred from postconviction consideration). In the alternative, the state argues the trial court abused its discretion in vacating the sentence. We reverse.

On appeal from a postconviction proceeding, our review is limited to determining whether there is sufficient evidence to support the postconviction court’s findings. Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997); Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, we will not disturb a postconviction court’s decision. Rainer, 566 N.W.2d at 695; Scruggs, 484 N.W.2d at 25.

Ademodi bears the burden of proving he was prejudiced by any violation of his Vienna Convention rights. See Breard v. Greene, 523 U.S. 371, 377, 118 S. Ct. 1352, 1355 (1998) (noting final judgment of conviction should not be overturned on Vienna Convention ground absent prejudice); United States v. Lombera-Camorlinga, 170 F.3d 1241, 1244 (9th Cir. 1999) (placing initial burden of showing prejudice on defendant); see also Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) (holding defendant failed to establish prejudice from alleged Vienna Convention violations); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996) (refusing to reverse conviction on Vienna Convention grounds because help from Canadian authorities would have been same as or cumulative of defense counsel’s assistance); Waldron v. I.N.S., 17 F.3d 511, 518 (2nd Cir. 1993) (holding prejudice required when alien seeks to avoid deportation based on violation of non-fundamental right, such as Vienna Convention right); United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (holding aliens seeking to exclude evidence of deportation order must prove prejudice caused by violation of Vienna Convention right).

To obtain postconviction relief, Ademodi needed to prove:  (1) he did not know of his right to contact his consul; (2) had he known, he would have contacted the Nigerian consul, and (3) the consultation would have changed his defense or altered the outcome of his trial. See United States v. Rangel-Gonzales, 617 F.2d 529, 531 (9th Cir. 1980) (dismissing indictment because defendant showed conduct of hearing would have materially differed had consul been notified); see also Murphy, 116 F.3d at 100 (holding defendant failed to establish prejudice because he was unable to explain how contacting Mexican consul would have changed either his guilty plea or sentence).

The state argues the trial court’s finding of prejudice is pure "speculation." The record demonstrates: (1) Ademodi did not submit affidavits from the Nigerian consul vouching that help would have been forthcoming if they had been notified; (2) Ademodi did not present evidence the Nigerian consul would have become involved in any capacity; (3) any advice on immigration law is collateral to criminal prosecution; and (4) Ademodi received advice from his attorney throughout the trial proceedings. See, e.g., Lombera-Camorlinga, 170 F.3d at 1244 (holding defendant bears burden of producing evidence consul assistance would have materially affected his defense); United States v. $69,530.00 in United States Currency, 22 F. Supp.2d 593, 594 (W.D. Tex. 1998) (noting Nigerian consul’s unwillingness to assist Nigerian national defendant); Alanis v. State, 583 N.W.2d 573, 578 (Minn. 1998) (holding immigration consequences collateral to criminal prosecution). Given these facts, Ademodi failed to establish that assistance from the Nigerian consul could have produced a better outcome for him. See Breard, 523 U.S. at 377, 118 S. Ct. at 1355 (denying relief for Vienna Convention violation absent prejudice); Murphy, 116 F.3d at 101 (same); Faulder, 81 F.3d at 520 (same). Under these circumstances, the postconviction court’s finding that Ademodi was prejudiced by the alleged Vienna Convention violation is without record support. Because Ademodi did not show prejudice, we need not decide whether the Vienna Convention is a self-executing treaty creating individual rights.

Reversed.