United States v. Harden ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-7869
WILLIAM G. HARDEN,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-93-129, CA-99-4235-3-10)
Submitted: July 31, 2002
Decided: September 3, 2002
Before WIDENER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
COUNSEL
William G. Harden, Appellant Pro Se. Dean Arthur Eichelberger,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. HARDEN
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)(1)-(2)
(2000); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Accord-
ingly, we deny a certificate of appealability and dismiss for the fol-
lowing 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; dis-
putes 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 constitu-
tional 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 prose-
quendum 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 prosequendum 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
UNITED STATES v. HARDEN 3
answer charges against him. The writ enables the United States "to
take temporary custody of a prisoner confined within another jurisdic-
tion, 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 habeas
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 con-
clude, 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 (1984). The reviewing court
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 light 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
4 UNITED STATES v. HARDEN
assistance was unprofessional, he cannot show that the result of his
proceeding would have been different had his attorney acted other-
wise. As such, he has shown no error of constitutional magnitude.
IV.
Harden’s argument that he received ineffective assistance of appel-
late 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 require-
ment 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
(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.
Harden next contends that the Government made many inflamma-
tory and malicious comments at sentencing about his background and
that the district court failed to make findings of fact as to whether
these comments were correct. However, Harden fails to allege that
these comments affected the calculation of the guideline range. While
he seems to argue that these comments encouraged the court to
impose a consecutive sentence, we ruled on appeal that the Guidelines
UNITED STATES v. HARDEN 5
required a consecutive sentence. Because Harden cannot show that
the court was influenced by the Government’s comments, there was
no requirement for the court to address the truth or falsity of the com-
ments. See United States v. Chavez, 902 F.2d 259, 266-67 (4th Cir.
1990) (holding that absent showing of prejudice, occurrence does not
rise to the level of a constitutional violation).
VII.
In a related argument, Harden contends that the Government’s
comments at sentencing constituted prosecutorial misconduct. How-
ever, as discussed above, because Harden cannot show any prejudice,
this claim will not support a certificate of appealability.
VIII.
Harden argues that the interstate commerce nexus requirement in
§ 2252(a)(4)(B) does not satisfy the Commerce Clause.* The circuits
that have addressed this issue are in agreement that the statute is con-
stitutional on its face. See, e.g., United States v. Bausch, 140 F.3d
739, 741 (8th Cir. 1998); United States v. Robinson, 137 F.3d 652,
655-56 (1st Cir. 1998). We agree and find no constitutional error in
the statute.
IX.
Relying on United States v. Corp, 236 F.3d 325, 332 (6th Cir.
2001), Harden argues next that, even if the statute is constitutional on
its face, it was unconstitutionally applied to the facts in his case.
While the Corp court declined to find the relevant statute facially
invalid, the court nevertheless found, on the facts of the case, that the
*Section 2252(a)(4)(B) prohibits the knowing possession of
1 or more books, magazines, periodicals, films, video tapes, or
other matter which contain any visual depiction [of minors
engaged in sexually explicit conduct] that ha[ve] been mailed, or
ha[ve] been shipped or transported in interstate or foreign com-
merce or which was produced using materials which have been
mailed or so shipped or transported.
6 UNITED STATES v. HARDEN
defendant’s activity was not of a type demonstrated to be substantially
connected or related to interstate commerce. The defendant was not
alleged to be a pedophile nor was he alleged to have been illegally
sexually involved with more than one minor. Additionally, the minor
in the case was merely months away from reaching majority and was
alleged to have consented to the sexual activity. Based on these facts,
the court found that the defendant’s "activity was not of a type dem-
onstrated substantially to be connected or related to interstate com-
merce . . . Corp was not involved, nor intended to be involved, in the
distribution or sharing with others of the pictures in question. [The
child] was not [exploited] nor a victim in any real and practical sense
in this case." Thus, based on the "undisputed and unusual facts" of the
case, the court reversed the defendant’s conviction for lack of a suffi-
cient nexus with interstate commerce. Id. at 332-33.
Here, the facts are markedly different. Harden possessed 104 pho-
tographs of young males with their genitals exposed, many depicting
erect penises and in some cases with the photo subject fondling him-
self. The pictures involved multiple boys, some as young as eleven.
In addition, Harden has admitted to sexual contact with multiple
young boys. Based on these facts, we find that the Government made
a sufficient showing that Harden’s possession of pornography had a
sufficiently substantial effect on interstate commerce. As such, even
under Corp’s restrictive reading of the statute and nexus require-
ments, the facts in this case are sufficient to show the constitutionally
necessary nexus.
X.
Accordingly, we deny a certificate of appealability and dismiss the
appeal. We deny Harden’s motion for relief and grant his motion to
supplement his brief. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
DISMISSED