UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30045
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO GERMAN SALGADO CABALLERO,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Louisiana
(CA-94-3427 (CR 89-452-A-5))
( July 26, 1995)
Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alvaro German Salgado Caballero appeals the district court's
denial of his pro se 28 U.S.C. § 2255 motion to vacate his
conviction and sentence for possession of cocaine with intent to
distribute while on board a vessel subject to the jurisdiction of
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
the United States.1 We affirm.
Background
While on patrol in international waters near the Yucatan
Peninsula, the captain and crew of a United States Coast Guard
cutter became suspicious of the mission and cargo of the ZEDOM SEA,
a vessel flying the Panamanian flag. After obtaining a statement
of no objection to enforcement of United States law ("SNO") from
Eric Arturo Delvalle, the then-exiled president of Panama,2 members
of the crew of the cutter boarded the vessel and discovered six
tons of cocaine stored in the ship's cargo containers. Eight
seamen, including Caballero, were convicted and Caballero was
sentenced to 188 months imprisonment. His conviction was affirmed
on direct appeal.3
Caballero, appearing pro se, filed the instant section 2255
motion, contending that there was no showing of a nexus between the
United States and the ZEDOM SEA or its crew and that the imposition
of federal criminal jurisdiction offended the fifth amendment's due
1
46 U.S.C. § 1903.
2
46 U.S.C. § 1903(c)(1)(C) provides, in pertinent part, that
a vessel "subject to the jurisdiction of the United States"
includes
a vessel registered in a foreign nation where the flag
nation has consented or waived objection to enforcement
of United States law by the United States.
This waiver is to be obtained from the government recognized by the
United States State Department, and "may be proved by certification
of the Secretary of State or the Secretary's designee." Id.
3
United States v. Pretel, 939 F.2d 233 (5th Cir.), cert.
denied, 502 U.S. 918 (1991).
2
process clause. The district court dismissed the petition, finding
that the jurisdictional defects had been addressed by this court on
direct appeal. Caballero timely appealed.
Analysis
The collateral review by a section 2255 petition extends only
to the challenge of a conviction "on issues of constitutional or
jurisdictional magnitude."4 When considered on direct appeal they
may not be reviewed by section 2255 pleadings.5
On direct appeal, Caballero claimed that the district court
erred in finding federal jurisdiction over his alleged offenses on
board the ZEDOM SEA contending, first, that the question of
jurisdiction should have been submitted to a jury and, second, as
the requisite SNO was not obtained from the then-ruling government
of Panama, there was no jurisdiction pursuant to 46 U.S.C. § 1903.
A panel of this court determined that the question of jurisdiction
was a matter of law within the district court's cognizance and
that, as the United States State Department recognized only the
deposed president of Panama as the leader of the Panamanian
government, securing an SNO from that authority satisfied the
requirements of section 1903.
In the instant section 2255 motion, Caballero contends that
assertion of jurisdiction over the ZEDOM SEA did not comport with
4
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991),
cert. denied, 502 U.S. 1076 (1992).
5
United States v. Jones, 614 F.2d 80 (5th Cir.), cert. denied,
446 U.S. 945 (1980). See also United States v. Kalish, 780 F.2d
506 (5th Cir.), cert. denied, 476 U.S. 1118 (1986).
3
traditional notions of constitutional due process because the ship
did not possess ties to the United States that would suffice to
render it or its crew amenable to federal criminal jurisdiction.
Although we considered on direct appeal whether the jurisdictional
prerequisites as set forth in section 1903 were met, the
constitutional ramifications of the assertion of jurisdiction under
this statute were not presented to the court. The matter is
nonetheless barred, however, for it is manifest that a habeas
petitioner "may not raise an issue for the first time on collateral
review without showing both 'cause' for his procedural default, and
'actual prejudice' resulting from the error."6 As Caballero has
failed to even assert, let alone demonstrate, any cause for his
failure to present this matter during his direct appeal, the
district court properly barred his claim and dismissed his
petition.
AFFIRMED.
6
Shaid, 937 F.2d at 232. See also United States v. Frady, 456
U.S. 152 (1982).
4