United States v. Harden

45 F. App'x 237
Court of Appeals for the Fourth Circuit·Decided September 3, 2002·No. 01-7869·Unpublished

Opinion

*239 OPINION

PER CURIAM.

William G. Harden appeals the district court’s order denying his 28 U.S.C. § 2255 (2000) motion. Harden is currently serving a sentence for knowingly possessing photographs of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B) (2000), and possessing counterfeit securities with the intent to deceive other persons and organizations, in violation of 18 U.S.C. § 513(a) (2000). We have carefully considered the record and the arguments on appeal, and we find that Harden has failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(l)-(2) (2000); Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, we deny a certificate of appealability and dismiss for the following reasons.

I.

To obtain this court’s review, Harden needs to acquire a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability must be based on the denial of a constitutional right; disputes about statutory questions are insufficient to support the issuance of such a certificate. Ramunno v. United States, 264 F.3d 723, 725 (7th Cir.2001). Thus, our review focuses only on Harden’s constitutional claims, which we analyze to determine if Harden has made a substantial showing of the denial of a constitutional right.

II.

Harden first contends that the trial court never gained personal jurisdiction over him because the writ of habeas corpus ad prosequendum issued to obtain his presence for arraignment was defective. According to Harden, the writ was addressed to the warden of the wrong state prison.

Writs of habeas corpus ad prosequen-dum are authorized by 28 U.S.C. § 2241(c)(5) (2000). The writ allows a summoning jurisdiction to order a prisoner being held in another jurisdiction to appear and answer charges against him. The writ enables the United States “to take temporary custody of a prisoner confined within another jurisdiction, and indict, prosecute and sentence such prisoner.” Flick v. Blevins, 887 F.2d 778, 781 (7th Cir.1989).

However, prisoners have no standing to challenge transfers between sovereigns or to challenge the issuance of a writ of habe-as corpus ad prosequendum. Derengowski v. U.S. Marshal, 377 F.2d 223, 223 (8th Cir.1967). The prohibition also bars prisoners from challenging the operation of writs. Id. at 224. Moreover, even if a prisoner’s transportation were violative of his rights, any violation would not affect the trial court’s jurisdiction to try him for the offense. United States v. Wilson, 721 F.2d 967, 972 (4th Cir.1983). Thus, Harden has no standing to challenge the issuance or operation of the writ of habeas corpus ad prosequendum in his case. We conclude, therefore, that there was no error, constitutional or otherwise, to support the issuance of a certificate of appealability.

III.

Harden next asserts various claims of ineffective assistance of counsel. In order to succeed on a claim of ineffective assistance, a petitioner must show that his counsel’s performance fell below an objective standard of reasonableness and was prejudicial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The reviewing court *240 must not engage in hindsight; rather, the reasonableness of counsel’s performance is evaluated within the context of the circumstances at the time of the alleged error. Id. at 690. To satisfy the second prong of Strickland, a petitioner must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 694.

In his brief, Harden lists over fifteen actions or inactions by his attorney that he asserts constituted ineffective assistance. He does not, however, analyze the actions in fight of prevailing professional norms and identify how they were unreasonable. Moreover, Harden cannot show prejudice from any of these alleged errors. Harden admits his guilt to the charges, and he was sentenced in the middle of a guideline range that he does not seriously challenge as improperly calculated. Thus, even accepting Harden’s present contentions that his attorney’s assistance was unprofessional, he cannot show that the result of his proceeding would have been different had his attorney acted otherwise. As such, he has shown no error of constitutional magnitude.

IV.

Harden’s argument that he received ineffective assistance of appellate counsel is based on the belief that we wrongly decided his direct appeal. He essentially contends that if his attorney had cited different cases and filed a petition for rehearing, Harden’s appeal would have been successful. Because Harden cites no intervening change in the law, he cannot challenge this court’s ruling on his direct appeal.

V.

Harden contends that, because this court found on direct appeal that the trial court was required to impose a consecutive sentence, his guilty plea was involuntary as he was not informed of this requirement prior to his plea. To be constitutionally valid, a guilty plea must be informed and intelligent. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). We find that there was no error of constitutional magnitude. As discussed before, Harden admits his guilt to the charges, and he was sentenced in the middle of an unchallenged guideline range. In addition, by pleading guilty, he received a sentence reduction for acceptance of responsibility. Moreover, it is also undisputed that, when Harden pled guilty, he was aware of the possibility (if not the requirement) of a consecutive sentence. Thus, Harden cannot show that the further information that a consecutive sentence was necessary would have affected his decision to plead guilty.

VI.

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United States v. Harden, 45 F. App'x 237 (4th Cir. 2002).

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Related

Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Slack v. McDaniel
529 U.S. 473 (Supreme Court, 2000)
United States v. Robinson
137 F.3d 652 (First Circuit, 1998)
United States v. Edwin Paul Wilson
721 F.2d 967 (Fourth Circuit, 1983)
John J. Flick, Jr. v. Dudley Blevins, Warden
887 F.2d 778 (Seventh Circuit, 1989)
United States v. Leonardo Chavez
902 F.2d 259 (Fourth Circuit, 1990)
United States v. Patrick J. Corp
236 F.3d 325 (Sixth Circuit, 2001)
John A. Ramunno, Jr. v. United States
264 F.3d 723 (Seventh Circuit, 2001)
United States v. James Bausch
140 F.3d 739 (Eighth Circuit, 1998)