United States v. Horton

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5880

ROY HORTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Elkins.
Irene M. Keeley, District Judge.
(CR-93-40)

Argued: October 29, 1996

Decided: February 24, 1997

Before MURNAGHAN and MICHAEL, Circuit Judges, and
DOUMAR, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Howard Gene Higgins, Jr., Morgantown, West Virginia,
for Appellant. Thomas Oliver Mucklow, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee. ON BRIEF: Wil-
liam D. Wilmoth, United States Attorney, Wheeling, West Virginia,
for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Roy Horton appeals from the United States District Court for the
Northern District of West Virginia his November 1, 1995 convictions
on one count of aiding and abetting in the distribution of cocaine base
and one count of using and carrying a firearm during a drug transac-
tion. We affirm his convictions.

Most of the issues on appeal center around alleged procedural defi-
ciencies in the various transfers of Horton between state and federal
custody. The key issues are:

(1) Whether Horton's due process rights were violated when he
was moved from state custody to federal custody through a writ of
habeas corpus ad prosequendum, returned to state custody, and then
transferred back to federal custody without the issuance of a second
writ of habeas corpus ad prosequendum.

(2) Whether Horton was entitled to a detention hearing upon his
return to federal custody after he initially waived the detention hear-
ing at his federal arraignment.

(3) Whether Horton's due process rights were violated when he
was detained without the issuance of a commitment order.

(4) Whether Horton's trial counsel was ineffective.

(5) Whether Horton's conviction under 18 U.S.C.§ 924(c) was
supported by the evidence.

I. Factual and Procedural Background

Throughout February of 1993, West Virginia undercover police
officers bought cocaine and crack cocaine from Horton. On February

2
27, 1993, a police officer spotted Horton operating a vehicle at night
without lights. The officer pulled Horton over on suspicion of driving
under the influence of alcohol, and arrested him for that charge and
other misdemeanors. A search of Horton's person at the police station
revealed seventeen rocks of crack cocaine and bullets; a search of his
automobile revealed a .22 caliber revolver under the driver's seat.
These items formed the basis of the federal charges against Horton.
He was indicted on the federal charges on June 15, 1993. The multi-
count federal indictment charged Horton with three counts of drug
crimes, with using and carrying a firearm in relation to a drug traf-
ficking crime, and with one count of possession of a firearm by a con-
victed felon.

At the time of his indictment, Horton was held in West Virginia
state custody for the state probation revocation proceedings. He also
was scheduled to stand trial for numerous state misdemeanor charges
in August 1993. On June 22, 1993, Horton appeared before a West
Virginia circuit court. The state circuit court found Horton in viola-
tion of his state probation, but the court suspended the execution of
his state prison sentence and advised the United States that Horton
was to be released to United States District Court to face the federal
charges against him.

On June 23, 1993, the United States petitioned for a writ of habeas
corpus ad prosequendum to secure Horton's presence at his federal
arraignment. The petition was granted on June 25, 1993, and Horton
was transferred to federal custody on July 6, 1993. By letter dated
July 6, 1993, the state court advised Horton and the United States that
the state sentence was suspended, and that the defendant would be
released for trial on the federal charges.1 A state court order providing
for the release was entered on July 19, 1993. Horton appeared before
_________________________________________________________________
1 Horton's release was explained in a letter from the trial judge to coun-
sel dated July 6, 1993. The letter was filed on the same day. The letter
reads, "[a]t this time, I am of the opinion to and will generally suspend
execution of his state prison sentence. Therefore, he may be released to
federal authorities to answer charges pending in Criminal No. 93-40,
United States District Court for the Northern District of West Virginia.
Counsel for the State is requested to prepare the appropriate order and
circulate same for entry."

3
a federal Magistrate Judge for arraignment on July 7, 1993, before the
formal written order of release was entered. Horton at that time
waived his right to counsel and to a detention hearing.

At arraignment, Horton requested that he be permitted to return to
state custody to be tried on the pending state charges. The order
releasing Horton from federal custody stated that his release was
"pending disposition of the state criminal charges or until further
order of the Court." Accordingly, Horton was returned to a West Vir-
ginia county jail on July 12, 1996. Horton then appeared in state court
for pretrial proceedings.

On August 3, 1993, Horton was transferred from state jail to fed-
eral jail. The United States did not request a second writ of habeas
corpus ad prosequendum, and no commitment order or detention
order was entered. The remaining state misdemeanor charges against
Horton were dismissed on August 18, 1993 and September 20, 1993.

Before his federal trial began, Horton filed motions to dismiss and
motions to suppress statements and evidence. The district court
denied these motions and began the trial. After two witnesses testi-
fied, Horton opted to forgo trial and plead guilty to two counts of the
multi-count indictment. He pled guilty to one charge of distribution
and aiding and abetting in the distribution of cocaine base and one
count of using and carrying a firearm in connection with a drug traf-
ficking crime.

Horton subsequently filed a motion to withdraw his guilty plea. On
June 26, 1995, the district court considered Horton's motion to with-
draw his plea, which was based on a claim of ineffectiveness of coun-
sel. The district court denied Horton's motion, concluding that
defendant had received effective assistance of counsel. On November
1, 1995, the district court sentenced Horton to 120 months on Count
Two (distribution and aiding and abetting in the distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1)) and sixty consecu-
tive months on Count Four (using and carrying a firearm during and
in relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)). The judgment order was entered on November 2, 1995, and
the defendant filed a timely appeal on November 8, 1995.

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Horton claims that his transfer to federal custody on August 3 was
contrary to the terms of the July 9 release order, violating his due pro-
cess rights. He further argues that he was denied the opportunity to
seek bail after his August 3, 1993 transfer to federal custody because
his initial waiver of the detention hearing at the July 7, 1993 arraign-
ment became void upon transfer, that he was effectively kidnapped
and illegally detained, and that he was transferred without the paper-
work required by law. He also claims his trial counsel was ineffective
and that the evidence adduced at trial was insufficient to support his
conviction of using and carrying a firearm in relation to a drug traf-
ficking crime.

II. Analysis

A. Alleged Procedural Deficiencies

The release order issued by the federal court after arraignment on
July 9, 1993 stated that Horton would be transferred back to state cus-
tody "pending disposition of the state charges against him or until fur-
ther order of the court." Horton claims that this language created a
liberty interest in his remaining in state custody until the state charges
were resolved. We reject this contention. Prisoners do not have liberty
interests in remaining in any particular penal institution. See Olim v.
Wakinekona, 461 U.S. 238, 245 (1983) ("Just as an inmate has no jus-
tifiable expectation that he will be incarcerated in any particular
prison within a State, he has no justifiable expectation that he will be
incarcerated in any particular State."); Corgain v. Miller, 708 F.2d
1241, 1252 (7th Cir. 1983) ("a prisoner has no federal liberty interest
in remaining within the state prison system any more than he has such
an interest in remaining at a particular institution within the state sys-
tem.").

Horton argues that the United States was required to obtain a sec-
ond writ of habeas corpus ad prosequendum when Horton was retran-
sferred to federal custody because the release order created an
expectation that he would remain in state custody. Writs of habeas
corpus ad prosequendum are authorized by 28 U.S.C.§ 2241(c)(5).
The writ allows a summoning jurisdiction to order that a prisoner
being held in another jurisdiction appear to answer charges against
him. The writ enables the United States "to take temporary custody

5
of a prisoner confined within another jurisdiction, and indict, prose-
cute and sentence such prisoner." Flick v. Blevin, 887 F.2d 778, 781
(7th Cir. 1989), cert. denied, 495 U.S. 934 (1990). A writ of habeas
corpus ad prosequendum does not alter a defendant's custody status,
it merely removes a prisoner to another jurisdiction for prosecution.
Munz v. Michael, 28 F.3d 795, 798 (8th Cir. 1994). The prisoner is
viewed as "on loan" to the summoning jurisdiction. Thomas v.
Whalen, 962 F.2d 358, 361 n.3 (4th Cir. 1992).

Although Horton strenuously objects to his second transfer to fed-
eral custody because no writ issued, prisoners have no standing to
challenge transfers between sovereigns. One case explains, "[i]t is a
well-established legal rule that a state prisoner is without standing to
contest a federal court's issuance of a writ of habeas corpus ad prose-
quendum." Derengowski v. U.S. Marshal, 377 F.2d 223, 223 (8th
Cir), cert. denied, 389 U.S. 884 (1967). This prohibition also bars
prisoners from challenging the operation of writs. Id. A Seventh Cir-
cuit case explained, "[w]hen the `receiving' state is the federal gov-
ernment, whether the prisoner is returned to the sending state, or is
compelled to serve his federal sentence (if convicted), is a matter of
comity between the two sovereigns." Flick, 887 F.2d at 781. Prisoners
are denied standing because

One accused of a crime . . . . should not be permitted to use
the necessary machinery of one sovereignty to obstruct his
trial in the courts of the other, unless the operation of such
machinery prevents his having a fair trial. He may not com-
plain if one sovereignty waives its strict right to exclusive
custody of him for vindication of its laws in order that the
other may also subject him to the conviction of crime
against it.

Ponzi v. Fessenden, 258 U.S. 254, 260 (1922).

We see no reason in this case to depart from this well-established
rule. Horton was released to state custody after he requested that he
be so released. The federal magistrate judge could have justifiably

6
denied this request. If Horton's request had been denied, clearly Hor-
ton would not have a basis for complaint.2

Furthermore, the case of United States v. Muhammad, 948 F.2d
1449 (6th Cir. 1991), cert. denied, 502 U.S. 1119 (1992), is persua-
sive authority for rejecting Horton's claim. The prisoner in
Muhammad similarly objected to a transfer, arguing that he "had been
illegally taken from `federal custody' to state court without the appro-
priate writ." Id. at 1452. The prisoner was transferred pursuant to the
federal judge's oral order, which indicated that a writ would be forth-
coming. The Court of Appeals for the Sixth Circuit concluded that the
trial judge's oral ruling sufficiently conferred jurisdiction upon the
federal courts, and that even if an error was made, that error was
harmless. Id. at 1453-54.

Horton similarly asks that this Court turn the procedural machinery
of the states into a substantive right, a violation of which would
secure his release. This Court refuses to do so. As the Supreme Court
explained, "`[a] liberty interest is of course a substantive interest of
an individual; it cannot be the right to demand needless formality.'
Process is not an end in itself. Its constitutional purpose is to protect
a substantive interest to which the individual has a legitimate claim
of entitlement." Olim, 103 S. Ct. at 1748 (quoting Shango v. Jurich,
681 F.2d 1091, 1100-01 (7th Cir. 1982)).

Horton's second and closely related argument is that the federal
court relinquished jurisdiction over him when it returned him to state
custody, and that consequently a second writ of habeas corpus ad
prosequendum was required to reobtain jurisdiction over him. This
argument has no merit. See Flick, 887 F.2d at 781-82. In Flick, a fed-
_________________________________________________________________
2 The Writ of Habeas Corpus Ad Prosequendum filed June 25, 1993
stated that Horton was to be remanded to the custody of the U.S. Marshal
after his federal appearance pending further disposition of the case. Hor-
ton's release order contained similar wording providing that he was to
remain in state custody. If the release order is viewed as creating a liberty
interest in Horton remaining in state custody, the writ would likewise
have created a simultaneous interest in Horton remaining in federal cus-
tody. Thus, Horton could argue alternatively that the Government vio-
lated his rights no matter where Horton was detained.

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eral court issued a writ of habeas corpus ad prosequendum to obtain
possession of a state prisoner. The prisoner then was tried and con-
victed in federal court. The writ "required Flick's return to state cus-
tody upon completion of the federal criminal trial, but . . . federal
authorities in error transported Flick to the United States Penitentiary
. . . . " Id. at 779. The mistake was not discovered until two months
later. Flick then was sent back to state custody. After he served his
state sentence, he was sent back to federal custody. Flick claimed that
the federal government relinquished custody of him when it sent him
back to the state. Flick rejected the argument that "his `shuttling'
between federal and state prison affected his rights in such a way as
to require release from federal imprisonment." Id. at 781.

Once Horton appeared in federal court and entered a plea, he sub-
mitted himself to the continuing jurisdiction of the court, and there
was thus no need for a second writ to issue. See Carbo v. United
States, 364 U.S. 611, 621 (1960). Carbo held that a defendant's initial
appearance in court was the equivalent of a "leash" which fastened
him to the jurisdiction of the court, and that jurisdiction was not relin-
quished when a prisoner was returned to another jurisdiction's cus-
tody. Once Horton appeared in court, he was subject to the court's
jurisdiction and no further writ was required to secure his appearance.

Furthermore, the process by which Horton was brought to court is
largely irrelevant when ascertaining whether Horton's conviction
should be overturned on direct appeal. Horton claims that the Mar-
shals kidnaped him. Assuming arguendo that Horton's intrastate
transfer could state a cognizable federal kidnapping claim under 18
U.S.C. § 1201, the manner in which Horton was brought before the
court does not bear upon the validity of his conviction in this case.
As discussed previously, the trial court properly obtained jurisdiction
over Horton when he appeared for arraignment on July 7, 1993.
Therefore, even if the Court were to view Horton's physical transpor-
tation as violative of his rights, any violation would not affect the trial
court's jurisdiction to try him for the offense. As this Court has noted,
"[i]t has long been the general rule that a court's power to try a crimi-
nal defendant is not impaired by the government's use of even forc-
ible abduction to bring the defendant within the court's jurisdiction."
United States v. Wilson, 721 F.2d 967, 972 (4th Cir. 1984). This is
especially true when there are no allegations of governmental conduct

8
which would "shock[ ] the conscience." Id. Horton has not alleged
any shocking governmental misconduct. The Supreme Court recently
reiterated the message, stating, "[t]here is nothing in the Constitution
that requires a court to permit a guilty person rightfully convicted to
escape justice because he was brought to trial against his will." United
States v. Alvarez-Machain, 504 U.S. 655, 662 (1992) (quoting Frisbie
v. Collins, 342 U.S. 519, 522 (1952)). The Court stressed that what
was central to due process was that the defendant be apprised of the
charges against him and receive a fair trial; Horton was accorded
apprisal and a fair trial. Id. Thus, we see no reason to disturb his con-
victions.

Horton next argues that he was entitled to a bail hearing when he
was returned to federal custody on August 3, 1993. When Horton was
first brought before the federal court for arraignment on July 7, 1993,
he waived his right to a detention hearing. The Magistrate Judge
determined that his waiver was knowing and voluntary. Horton now
claims that his initial waiver of the detention hearing on July 7
became null and void when he was transferred on August 3, and that
he was entitled to another detention hearing when he was returned to
federal custody. This argument is also without merit.

A defendant may waive hearings required by the Bail Reform Act,
18 U.S.C. § 3142. United States v. Clark , 865 F.2d 1425, 1433 (4th
Cir. 1989). If the defendant later desires a hearing and requests one,
he should be afforded a hearing, even if he previously waived his
right to hearings. Id. at 1457. Horton has not submitted any credible
evidence indicating that he did, in fact, request such a hearing.3 Fur-
thermore, Horton's objections to pretrial procedures have been ren-
dered moot by his guilty plea. See United States v. O'Shaughnessy,
772 F.2d 112, 113 (5th Cir. 1985) (dismissing a similar appeal as
moot because "[n]either pretrial detention nor release on pretrial bail
may now be ordered; the issues are no longer `live,' and the parties
_________________________________________________________________
3 Horton claims that he wrote a letter to the trial judge on September
1, 1993, asking for the hearing, and that this letter was not acknowl-
edged. Horton offered the purported text of the letter in his brief, but the
letter is not included in the appendix prepared for the Court. This letter
was not filed by the trial court, and the docket sheet does not reflect
receipt of a letter around this time.

9
lack a legally cognizable interest in the outcome."). Accordingly, we
find this argument meritless.

Horton also argues that he was detained illegally because the pris-
ons which held him never possessed commitment papers ordering his
detention. Horton assumes that if internal prison procedures were vio-
lated, then his due process rights were violated. His argument misun-
derstands relevant law. By pleading guilty, Horton has rendered this
pretrial issue moot and has waived his right to object to errors that are
non-jurisdictional. Finally, even if the paperwork Horton desired was
issued, Horton would not have been released. Therefore, any error, if
one occurred, was certainly harmless.

In each case of these alleged procedural deficiencies, Horton fails
to establish that the alleged errors harmed or prejudiced him, or that
he possessed any liberty interest. Accordingly, this Court will not
blindly champion procedure and allow procedural minutia to obscure
the fundamental fact that Horton was guilty as charged.

B. Effectiveness of Horton's Trial Counsel

Horton next argues that his trial counsel was ineffective. Questions
of effectiveness of counsel are reviewed de novo, but findings of fact
by a lower court regarding effectiveness of counsel are disturbed only
if clearly erroneous. Becton v. Barnett, 920 F.2d 1190, 1192 (4th Cir.
1990).

A defendant claiming ineffective assistance of counsel must dem-
onstrate both deficient performance and actual prejudice. Strickland
v. Washington, 466 U.S. 668 (1984). When considering Horton's
motion to withdraw his guilty plea, the trial court conducted an exten-
sive evidentiary hearing regarding the effectiveness of trial counsel.
The court noted that Horton had an extensive history of displeasure
with his numerous appointed attorneys.4 The court carefully evaluated
_________________________________________________________________
4 When appointing yet another attorney, the district court noted that it
"appointed at various times, three of the most aggressive, experienced
attorneys on its Criminal Justice Act panel to represent Mr. Horton, and
he has fired each of them, being highly dissatisfied that no one quite sees
things like he does." Order filed August 9, 1995.

10
trial counsel's performance and concluded that his performance did
not fall below the objective standard of reasonableness. This finding
is not clearly erroneous. Horton has thus failed to establish that his
counsel's performance was inadequate, so his claim of ineffectiveness
of counsel must fail.

C. Sufficiency of Evidence on the Firearm Charge

Horton next argues that the evidence presented at trial was insuffi-
cient to support his conviction for using and carrying a weapon in
relation to a drug trafficking crime. Horton was stopped by police
officers who suspected he was driving under the influence. He was
arrested and searched at the police station; the search revealed crack
cocaine. When officers conducted an inventory search of his car, they
discovered a gun under his seat. Horton was thus charged with violat-
ing 18 U.S.C. § 924(c)(1), which forbids using or carrying a firearm
in connection with a drug trafficking crime. At trial, Horton pled
guilty to this charge.

The case of United States v. Bailey, 116 S. Ct. 501 (1995), was
decided after his plea was entered. Bailey narrowed the permissible
scope of the term "use" and required that"active employment" of a
firearm be established to support a conviction under the "use" prong
of the statute. Bailey did not alter the"carry" prong of the statute.

Although he does not explicitly do so, Horton appears to be making
two separate claims under Bailey. First, he claims that the evidence
at trial was insufficient to prove that he used or carried a weapon.
Horton attempts to analogize to Bailey, but Bailey is inapposite. Bai-
ley was convicted after a jury trial for possessing a weapon in his
car's trunk. In contrast, Horton pled guilty to the firearm charge, and
his gun was readily accessible under his car's driver's seat. Transport-
ing a gun in a car with drugs continues to be sufficient to support a
_________________________________________________________________

Additionally, this Court, being very solicitous of Mr. Horton's rights,
allowed him to file a supplemental pro se brief in addition to the brief
filed by his counsel. It is difficult to believe that any counsel would be
satisfactory to Mr. Horton.

11
conviction as "carrying" a firearm, even after Bailey, certainly when
the firearm is readily accessible, see United States v. Hayden, 85 F.3d
153, 161-62 (4th Cir. 1996); United States v. Riascos-Suarez, 73 F.3d
616, 623 (6th Cir.), cert. denied, 117 S. Ct. 136 (1996); United States
v. Willet, 90 F.3d 404 (9th Cir. 1996); Gaskins v. United States, 925
F. Supp. 396 (D. Md. 1996), and, in some circumstances, even when
the firearm is not readily accessible. United States v. Mitchell, ___
F.3d ___, No. 95-5792, 1997 WL 12115 (4th Cir. Jan. 15, 1997).

While Horton was admittedly not using the gun as"use" is defined
in Bailey, he was certainly carrying the gun. Accordingly, the evi-
dence would have been sufficient to support a conviction by a jury,
and is sufficient to form an adequate factual basis for the acceptance
of his guilty plea. See Fed. R. Crim. P. 11(f); United States v.
Crawford, 932 F. Supp. 748, 752 (E.D. Va. 1996). Because Horton
pled guilty, he waived all challenges to the factual basis of his plea
as long as what he plead to was, in fact, criminal. United States v.
Broce, 488 U.S. 563, 570 (1980); United States v. Willis, 992 F.2d
489, 490 (4th Cir.), cert. denied, 510 U.S. 857 (1993). Horton was
carrying the weapon in relation to a drug transaction; that act remains
criminal. Accordingly, Horton's conviction stands.

Second, Horton claims that there was no evidence that he was
involved in drug trafficking. Under 18 U.S.C § 924(c)(1), a defendant
must use or carry a firearm in relation to a drug trafficking crime.5 At
trial, Horton had ample opportunity to discuss the matter with his
counsel. Horton at one point claimed the cocaine had been planted on
him. The United States insisted that he must admit guilt as to a drug
trafficking crime, and the trial judge carefully instructed Horton that
he must admit guilt as to the drug trafficking charge in order for his
plea to be accepted. The trial judge further commanded Horton to dis-
cuss the issue with his attorney; Horton did so and freely chose to
plead guilty.

Whether evidence was sufficient to support a conviction should be
determined in the light most favorable to the United States, and a con-
_________________________________________________________________
5 Horton apparently erroneously believes that the government must
establish that the firearm was used or carried in relation to a crime of vio-
lence. 18 U.S.C. § 924(c)(1) requires no such showing.

12
viction should be upheld if any rational trier of fact could find defen-
dant guilty. United States v. Reavis, 48 F.3d 763 (4th Cir. 1995). The
evidence in Horton's case certainly could lead a rational trier of fact
to conclude that Horton was engaged in a drug trafficking crime; he
was found with seventeen rocks of crack cocaine, some marijuana, a
razor blade, and around $ 100 in cash. Although Horton's objection
was viable pre-Bailey, Horton did not object on these grounds at trial.
Instead, he chose to enter a knowing and voluntary plea of guilty.
This Court will not set aside the guilty plea, and we find the evidence
sufficient to support Horton's conviction under 18 U.S.C. § 942(c)(1).

III. Other issues

In a pro se supplemental brief Horton submitted to the Court, Hor-
ton argues that it was plain error to sentence him for possessing crack
cocaine or cocaine base. He argues that no evidence established that
he was found with crack cocaine rather than regular cocaine. At Hor-
ton's guilty plea hearing, the government represented that it would
have established at trial that Horton was found with seventeen rocks
of crack cocaine or cocaine base. The record also contains lab reports,
which indicate that the substance Horton possessed was crack cocaine
or cocaine base. Most importantly, Horton pled guilty to possessing
crack cocaine or cocaine base. By pleading guilty, he waived all right
to challenge the factual basis of his conviction. Willis, 992 F.2d at 490
("A knowing, voluntary, and intelligent guilty plea to an offense con-
clusively establishes the elements of the offense and the material facts
necessary to support the conviction.").

In conclusion, none of Horton's arguments have merit. Because we
find no reversible error committed by the District Court, we affirm
Horton's convictions.

AFFIRMED

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