                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-12125                ELEVENTH CIRCUIT
                                                          FEBRUARY 11, 2009
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                               CLERK

                   D. C. Docket No. 07-60222-CR-WPD

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

HERNANDO CASARAN-RIVAS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (February 11, 2009)

Before MARCUS, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
       Hernando Casaran-Rivas appeals the denial of his motion to vacate, set

aside, or reduce sentence, pursuant to 28 U.S.C. § 2255, and his conviction for

illegal re-entry, in violation of 8 U.S.C. § 1326(a) and (b)(2). Specifically,

Casaran-Rivas first argues that the indictment (a) was insufficient for failing to

allege that he had the specific intent to re-enter the United States for illegal

purposes and (b) violated the United States’s obligations under the 1951 United

Nations Convention Relating to the Status of Refugees (“Refugee Convention”)

and United Nations Convention Against Torture and Other Cruel, Inhuman, or

Degrading Treatment or Punishment (“CAT Treaty”), namely not to penalize him

for illegal entry or presence in the United States because he arrived from a territory

where his life or freedom was threatened and not to return him to a country where

he might be tortured. Casaran-Rivas also argues that his counsel was ineffective

on several grounds, which was the issue raised in his § 2255 motion that he now

appeals. For the reasons set forth below, we affirm in part and vacate and remand

in part.

                                    I. Background

       Before trial, Casaran-Rivas submitted a motion to dismiss the indictment, on

the ground that it violated the United States’ obligations under the Refugee

Convention and CAT Treaty. The district court denied the motion, reasoning that



                                            2
the Refugee Convention and CAT Treaty were not defenses to illegal re-entry.

      At jury trial, Casaran-Rivas and the government stipulated that (1) Casaran-

Rivas was a citizen of Colombia and alien to the United States, (2) Casaran-Rivas

previously was removed from the United States, and (3) Casaran-Rivas traveled

from Costa Rica to the United States without first obtaining permission from the

Attorney General to reapply for admission. Casaran-Rivas testified in his own

defense that he had no choice but to flee to the United States. He and his brother

witnessed a “massacre” by guerillas. Two of the guerillas involved in the massacre

were arrested, and the guerillas blamed Casaran-Rivas and his brother. The

guerillas kidnaped his brother and father, and set fire to their house. Neither

Casaran-Rivas nor any member of his family had heard from his brother or father

since, and Casaran-Rivas had no doubt that they were dead. Thus, Casaran-Rivas

traveled to Panama and requested asylum. However, some Colombians came to

the place he was staying and shot at him. Casaran-Rivas then fled to Costa Rica

and requested asylum. However, these same Colombians came to the docks where

he was working. Scared, he boarded the only vessel that his company currently

had docked, which was traveling to the United States. He only intended to seek

temporary shelter in the United States while he arranged for asylum in another

country, and stated as much to the immigration officer who interviewed him as



                                           3
soon as the vessel landed. The jury convicted Casaran-Rivas.

      Before sentencing, Casaran-Rivas submitted a § 2255 motion, asserting that

his counsel was ineffective on several grounds. After denying the government’s

motion to dismiss the § 2255 motion as premature and without first holding an

evidentiary hearing, the district court denied the motion on the merits.

      The district court sentenced Casaran-Rivas to 78 months’ imprisonment.

Casaran-Rivas appealed his conviction, sentence, and denial of all pre-trial

motions.

                               II. Law and Analysis

                         A. Motion to Dismiss Indictment

      We review the district court’s denial of a motion to dismiss an indictment for

an abuse of discretion; however, questions of law are reviewed de novo. United

States v. McPhee, 336 F.3d 1269, 1271 (11th Cir. 2003). Pursuant to § 1326, any

alien who

      (1) has been denied admission, excluded, deported, or removed or has
      departed the United States while an order of exclusion, deportation, or
      removal is outstanding, and thereafter (2) enters, attempts to enter, or
      is at any time found in, the United States, unless (A) prior to his
      reembarkation at a place outside the United States or his application
      for admission from foreign contiguous territory, the Attorney General
      has expressly consented to such alien’s reapplying for admission; or
      (B) with respect to an alien previously denied admission and removed,
      unless such alien shall establish that he was not required to obtain
      such advance consent under this chapter or any prior Act,

                                          4
shall be fined or imprisoned. 8 U.S.C. § 1326(a). In United States v. Henry, 111

F.3d 111, 114 (11th Cir. 1997), we held that “specific intent is not an element of

the offense of illegal re-entry into the United States after deportation in violation of

[] § 1326.”

      The United States acceded to the Refugee Convention on November 6, 1968,

thereby binding itself to comply with Articles 2 through 34 of the Refugee

Convention. Cuban American Bar Ass’n, Inc. v. Christopher, 43 F.3d 1412, 1420

(11th Cir. 1995). Specifically, Article 32 prohibits expulsion of a “lawful” refugee

except on grounds of “national security or public order,” and then only pursuant to

a decision reached in accordance with due process of law. Haitian Refugee Center

v. Smith, 676 F.2d 1023, 1029 (5th Cir. 1982). Article 33 prohibits deportation of

a refugee “to the frontiers or territories where his life or freedom would be

threatened on account of his race, religion, nationality, membership of a particular

social group or political opinion.” Id. The CAT Treaty has been in effect in the

United States since November 20, 1994. Cadet v. Bulger, 377 F.3d 1173, 1179-80

(11th Cir. 2004). Article 3 of CAT provides, in relevant part, that “[n]o State Party

shall expel, return . . . or extradite a person to another State where there are

substantial grounds for believing that he would be in danger of being subjected to

torture.” Id.



                                            5
       However, a “treaty must be self-executing in order for an individual citizen

to have standing to protest a violation of the treaty.” United States v. Thompson,

928 F.2d 1060, 1066 (11th Cir. 1991) (considering the Geneva Convention). A

“self-executing international agreement is one that directly accords enforceable

rights to persons without the benefit of Congressional implementation.” Haitian

Refugee Center, Inc. v. Baker, 949 F.2d 1109, 1110 (11th Cir. 1991). We have

held that the provisions of the Refugee Convention are not self-executing. Id. at

1110 (discussing Article 33). We also have held that the CAT Treaty is not self-

executing. Cadet, 377 F.3d at 1180 n.3.1

       The district court did not abuse its discretion in declining to dismiss the

indictment for the reasons alleged. See McPhee, 336 F.3d at 1271. First, the

indictment was not insufficient for failing to allege that Casaran-Rivas had specific

intent to enter the United States as a previously deported criminal alien, as illegal

re-entry under § 1326 is not a specific intent crime. See Henry, 111 F.3d at 114.

Also, any argument that the indictment violated the refugee Convention and CAT



       1
          Although Congress implemented the CAT Treaty through the Foreign Affairs Reform
and Restructuring Act of 1988 (“FARRA”), Pub.L. No. 105-277, § 2242, 112 Stat. 2681,
2681-822, codified as note to 8 U.S.C. § 1231, the provisions of FARRA generally apply to
immigration courts and actually divest courts of jurisdiction to consider or review claims under
the CAT “except as part of the review of a final order of removal under 8 U.S.C. § 1252” and
strip this Court of jurisdiction to review removal orders of aliens who have been convicted of an
aggravated felony. See Cadet, 377 F.3d at 1180, 1183 n.8; FARRA § 2242(d); 8 U.S.C.
§ 1252(a)(2)(C).

                                                6
Treaty is without merit, as the Refuge Convention and CAT Treaty are not self-

executing, or subject to relevant legislation, and, therefore, do not confer upon

aliens a private right of action to allege a violation of their terms. See Baker, 949

F.2d at 1110; Cadet, 377 F.3d at 1180 n.3; Thompson, 928 F.2d at 1066.

Accordingly, we affirm as to this issue.2

                                      B. § 2255 Motion

       An ineffective-assistance-of-counsel claim is a mixed question of law and

fact; we review the district court’s findings of fact for clear error and decision on

the ultimate issue de novo. Conklin v. Schofield, 366 F.3d 1191, 1201 (11th Cir.

2004). A defendant normally presents ineffective-assistance-of-counsel claims by

way of a habeas motion or on direct appeal. As to ineffective-assistance-of-

counsel claims presented in a habeas motion, § 2255 instructs that

       [a] prisoner in custody under sentence of a court established by Act of
       Congress claiming the right to be released upon the ground that the
       sentence was imposed in violation of the Constitution or laws of the
       United States, or that the court was without jurisdiction to impose
       such sentence, or that the sentence was in excess of the maximum
       authorized by law, or is otherwise subject to collateral attack, may
       move the court which imposed the sentence to vacate, set aside or
       correct the sentence.


       2
          Casaran-Rivas also appears to argue on appeal that the immigration officer in question
misled him to believe that his statements, regarding why he boarded the vessel, were for asylum
purposes only, and would not be used to prosecute him. Any such action on the immigration
officer’s part was harmless, however, as Casaran-Rivas stipulated to the elements of the crime
and as the other statements attributed to Casaran-Rivas actually supported his duress defense.

                                                7
28 U.S.C. § 2255(a). Section 2255 also instructs that the prisoner must do so

within one year of the latest of the date on which, inter alia, the judgment of

conviction becomes final. 28 U.S.C. § 2255(f). A judgment of conviction

generally becomes final when the opportunity for direct appeal has been exhausted.

Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).

      Also as to the timing of a § 2255 motion, this and other Circuits have held

that, absent extraordinary circumstances, a defendant may not seek collateral relief

while his direct appeal is pending, as the outcome of the direct appeal may negate

the need for habeas relief. United States v. Khoury, 901 F.2d 975, 976 (11th Cir.

1990); see also Kapral v. United States, 166 F.3d 565, 570 (3d Cir. 1999) (“[A] a

collateral attack is generally inappropriate if the possibility of further direct review

remains open”); Welsh v. United States, 404 F.2d 333 (5th Cir.1968) (“A motion

to vacate sentence under 28 U.S.C. § 2255 will not be entertained during the

pendency of a direct appeal, inasmuch as the disposition of the appeal may render

the motion moot”); Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998)

(“[I]in the absence of extraordinary circumstances, a district court is precluded

from considering a § 2255 application for relief during the pendency of the

applicant’s direct appeal”); United States v. Davis, 604 F.2d 474, 484 (7th

Cir.1979) (“Ordinarily a [§] 2255 action is improper during the pendency of an



                                            8
appeal from the conviction”); Masters v. Eide, 353 F.2d 517, 518 (8th Cir.1965)

(“Ordinarily resort cannot be had to 28 U.S.C.A. § 2255 or habeas corpus while an

appeal from conviction is pending”); Jack v. United States, 435 F.2d 317, 318 (9th

Cir.1970) ( “Except under most unusual circumstances, not here present, no

defendant in a federal criminal prosecution is entitled to have a direct appeal and a

§ 2255 proceeding considered simultaneously in an effort to overturn the

conviction and sentence”).

      As to ineffective-assistance-of-counsel claims presented on direct appeal, the

Supreme Court has held that appellate courts generally should not review

ineffective-assistance-of-counsel claims on direct appeal. Massaro v. United

States, 538 U.S. 500, 504-505, 123 S.Ct. 1690,1694 (2003). The Supreme Court

reasoned that the record usually has not been sufficiently developed as to counsel’s

performance at that point in the proceedings. Id. The Supreme Court explained

that the facts presented at trial would focus on the defendant’s guilt or innocence

and that, while the record “may reflect the action taken by counsel,” it would not

disclose the reason or strategic motive behind this action. Id. The Supreme Court

concluded that the proper arena for such claims is collateral review. Id.

      The district court erred in denying Casaran-Rivas’s § 2255 motion on the

merits, as it was premature. Section 2255’s statutory construction demonstrates



                                          9
that § 2255 was intended to afford strictly post-conviction relief. See 28 U.S.C.

§ 2255(a), (f). First, § 2255 allows “[a] prisoner in custody under sentence of a

court” to challenge that sentence, such that the statutory language itself assumes

that the movant already has been sentenced. See 28 U.S.C. § 2255(a). Also,

§ 2255, and the relevant case law, instruct that the time for filing a § 2255 motion

begins to run after the direct appeal process is complete, such that the statutory

language suggests that pursuit of habeas relief should follow pursuit of direct-

appeal relief. See 28 U.S.C. § 2255(f); Akins, 204 F.3d at 1089 n.1; Washington,

243 F.3d at 1300; Clay, 537 U.S. at 532, 123 S.Ct. at 1079. Likewise, the

reasoning cited by the courts who have held that collateral relief and direct-appeal

relief cannot be pursued simultaneously, namely that the disposition of a direct

appeal might render a habeas motion unnecessary, applies with equal force to

pursuing habeas relief before direct-appeal relief. See, e.g., Khoury, 901 F.2d at

976. To this end, the record includes no reason to conclude that the instant case

presents extraordinary circumstances that render this reasoning inapplicable. See

id. Therefore, the district court should have dismissed Casaran-Rivas’s § 2255

motion as premature.

      The government suggests on appeal that we consider Casaran-Rivas’s

ineffective-assistance-of-counsel claims in a direct-appeal context. However, the



                                          10
record before us is not sufficiently developed to do so. See Massaro, 538 U.S. at

504-05, 123 S.Ct. at 1694. The district court did not hold a hearing on the claims

submitted, and the record otherwise does not indicate why Casaran-Rivas’s counsel

made the decisions at issue. See 28 U.S.C. § 2255(b). Accordingly, we vacate the

order denying Casaran-Rivas’s § 2255 motion on the merits and instruct the district

to dismiss the motion as premature. See Mohammed-Blaize, 133 Fed.Appx. 774;

Massaro, 538 U.S. at 504-05, 123 S.Ct. at 1694. Should Casaran-Rivas decide to

pursue collateral relief, any § 2255 motion submitted would not be second or

successive.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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