Appeal from the United States District Court for the Western District of Wisconsin, No. 87-CR-30, John C. Shabaz, Judge.
Cummings, Wood, Jr., and Flaum, Circuit Judges.
WOOD, JR., Circuit Judge.
Larry L. Horton appeals his conviction following a plea of guilty in accordance with a plea agreement to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). He claims that the magistrate erred in denying his request for substitution of counsel because there was an irreconcilable conflict between Horton and his court-appointed attorney. He also contends that his attorney's publicly reported position as one of the finalists under consideration for nomination by the President of the United States for the Office of United States Attorney for the Western District of Wisconsin during the time that he represented Horton constituted an actual conflict of interest in violation of his Sixth Amendment right to effective assistance of counsel. Alternatively, Horton maintains that the irreconcilable conflict between Horton and his counsel, when considered along with counsel's conflict of interest and alleged total lack of preparation in Horton's case, constituted ineffective assistance of counsel. Finally, Horton argues that the magistrate erred in ordering him to pay $1,500 toward his own defense, pursuant to the terms of the Criminal Justice Act, 18 U.S.C. § 3006A(c) and (f).
On April 1, 1987, Horton was indicted on five counts of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). On April 10, 1987 the magistrate appointed Richard J. Callaway, pursuant to the provisions of the Criminal Justice Act, to represent Horton. About a week after his appointment Callaway was reported in the press to be one of four finalists being considered for the position of United States Attorney for the Western District of Wisconsin. Horton claims not to have been aware of that fact until after he had entered his guilty plea in June 1987. The briefs do not specify exactly when or how Horton first became aware of Callaway's aspirations.
On the date of Callaway's appointment as counsel for Horton the magistrate held a bond hearing and ordered Horton detained without bond. He also ordered Horton to pay $1,500 toward the cost of his defense pursuant to sections 3006A(c) and (f) of the Criminal Justice Act. On April 22, 1987, a pretrial conference was held where Callaway acknowledged that he did not intend to file any pretrial motions because, as he explained, he had already received and reviewed the government's discovery materials. During that conference, the magistrate brought to Callaway's attention a pro se motion which Horton had filed requesting substitution of counsel. On the same day, the magistrate held an ex parte hearing, with Callaway and Horton, on Horton's motion.
At that ex parte hearing Horton reminded the magistrate that he had earlier appeared with another attorney, Alan Bates, but that the magistrate had denied him the right to be represented by Bates. The magistrate explained that attorney appointments under the Criminal Justice Act were rotated and that defendants were not entitled to select attorneys of their personal choice. Horton was advised, however, that if he preferred he could hire the lawyer of his choice, and then move for a substitution of counsel.
The hearing then turned to the issue of dismissing Callaway, Horton alleging that Callaway did not have his best interests at heart. The magistrate asked Horton to explain but Horton would not respond. Horton merely complained that Callaway wanted him to enter a plea of guilty. The magistrate explained to Horton that he need not plead guilty but that he could go to trial if he preferred. Horton then responded that he would not explain his problem to the court. He wanted a change of venue, he said, as it was a "prejudicial courtroom." The magistrate fully explained to Horton his trial rights and the function of counsel to evaluate the evidence and advise him according to his professional judgment. Horton could renew his motion before the district judge, the magistrate advised, but he was denying it.
Some discussion of bail followed but the magistrate reminded Horton that the pretrial services report revealed that Horton and his wife were heavy users of cocaine and that it was his trafficking which supported their habit. There was a discussion of how Horton could get in touch with his counsel. Horton replied that he did not want to communicate with his counsel, who he said only wanted to convict him. The magistrate's voiced conclusion was that it appeared Horton had made up his mind not to cooperate with Callaway.
Callaway then explained to the magistrate that he had visited Horton in jail twice, gone over the government's evidence, and that based on his twenty-six years of experience, much of it as a criminal defense lawyer, the plea bargain offered by the government was a fair offer. In Callaway's judgment, Horton risked a long sentence by going to trial on all counts. Callaway then told the magistrate about his difficulties with Horton in preparing a defense, explaining that Horton had given him no information that would suggest a legitimate defense to the five counts. Horton had advised him that he would not take the stand in his own defense, but that he planned to rely on character witnesses. There was mention of an alibi by Horton, he said, but that the so-called alibi was nothing which would constitute a defense. Horton's "alibi" was apparently based on his belief that the couple who had cooperated with the government in setting up the cocaine purchase were supposedly friends of Horton's and would deny it ever happened. Callaway pointed out, however, that this couple would be testifying on behalf of the government. In addition, the government had the names of 30 or 40 other people to whom Horton had sold cocaine. It also appears that Horton had given a statement that he was "merely a conduit" for drugs, and that this statement would preclude him from testifying to his alleged non-involvement. In view of the defense situation and the strength of the government's case, Callaway had recommended to Horton that he accept the government's offer, feeling that it was an extremely fair one. He acknowledged, however, that he and Horton were having problems communicating and offered to withdraw from the case. After hearing this discussion the magistrate advised Horton that he believed Horton was only trying to force appointment of counsel of his choice by "stonewalling." He was advised to cooperate with Callaway. His counsel, the magistrate explained, was not responsible for the strength of the government's case. The magistrate therefore denied Horton's motion to substitute counsel, advising him that he was free to renew his motion before the district court. Horton did not renew the motion.
That ad hoc hearing, full and fair in all respects and which was sealed, has been set forth in some detail as it explains the self-inflicted nature of the defendant's complaints. After that hearing, on June 5, 1987, Horton nonetheless appeared with Callaway before the district judge in order to accept the government's plea bargain offer. Horton was placed under oath and examined by the district judge with full explanation of rights and options. Horton advised the court that he had fully discussed the charges with Callaway. The judge then asked, "Are you fully satisfied with the counsel, representation and advice that has been provided you in this case by Mr. Callaway as your attorney?" Horton's response was, "Yes, Your Honor."
Then the court reviewed with Horton the details of the plea agreement. Horton stated he was familiar with it and that it was his desire to plead guilty to only one count, in accordance with the agreement. The judge then advised Horton that because of a prior felony drug conviction that there was an enhanced penalty. Horton said he also understood that. Horton, as part of the agreement, had indicated a willingness to cooperate with the government in other drug investigations, and in return the government would not prosecute him for any other violations he might make known to the government before sentencing. Horton advised that it all had been discussed with him, and that he understood and agreed to it. He also denied any one had attempted in any way to force him to plead guilty. Again the trial judge mentioned Horton's right to go to trial.
The government proceeded to summarize its evidence, stating that the couple (who Horton had suggested at the hearing before the magistrate would be his alibi witnesses) had fully cooperated with the government in setting up the cocaine sale alleged in the count which Horton sought to plead to, and would testify. Horton admitted the transaction. That plea acceptance proceeding was thorough and careful, and is not challenged on appeal. After being sentenced on that count to six years imprisonment, with the remaining counts dismissed, Horton brought this appeal.
The issues Horton raises must be evaluated against that detailed summary of the prior proceedings. Two of the issues, the allegation that Callaway's consideration for appointment as United States Attorney created an actual conflict of interest, and that Callaway's alleged lack of preparation and investigation resulted in ineffective assistance of counsel, were not raised before the district court on either a motion for withdrawal of the guilty plea or for collateral relief under Title 28, U.S.C. § 2255. Horton ...