USA v. Horton et al

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
RICHARD PATRICK HORTON 	PETITIONER
v. 	Case No. 5:22-CR-50061-001 TLB
UNITED STATES OF AMERICA 	RESPONDENT
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
On December 2, 2024, Petitioner Richard Horton (Horton), proceeding pro se, filed a
Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (ECF No. 129).
This matter was referred to the undersigned for the purposes of making a Report and
Recommendation1 and for reasons explained below, it is recommended that Horton’s Motion be
DENIED.
I. BACKGROUND
Horton, along with his co-defendant, Betina Penny (Penny), was indicted by a federal grand
jury 	on 	September 	21, 	2022, 	on 	three 	counts: 	(1) 	knowing 	conspiracy 	to 	distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting one
another in the knowing and intentional distribution of methamphetamine on August 28, 2022, in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. § 2; and (3) aiding and abetting
1 Pursuant to General Order 2024-05, filed on December 3, 2024, the Western District of Arkansas’
practices with respect to Section 2255 Motions was amended and General Order No. 22, dated
October 19, 2010, was superseded. 	The above-captioned matter was referred to a U.S. Magistrate
Judge for report and recommendation on December 2, 2024, just prior to the district’s enactment
of General Order 2024-05. Recognizing the continued shortage of a district judge and increased
workloads, and considering the need for judicial efficiency, the Magistrate Judge did not seek
reassignment but enters this Report and Recommendation pursuant to General Order No. 22.
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one another in the knowing and intentional distribution of methamphetamine on September 5,
2022, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and 18 U.S.C. § 2. (ECF No. 1).
Horton, incarcerated at that time in the Benton County Detention Center, was arrested on
the federal arrest warrant, and appeared for arraignment on October 13, 2022 (ECF No. 22), where
Ken Osborne (Osborne), a CJA panel attorney, was appointed to represent Horton. (ECF No. 23,
24). On January 30, 2023, after a continuance of the trial date, Horton pled guilty to Count 2 of
the Indictment – aiding and abetting Penny in the knowing and intentional distribution of
methamphetamine on August 28, 2022. (ECF Nos. 43, 44).
The undersigned conducted a hearing on April 17, 2023, and at its conclusion, granted the
Motion of Osborne to withdraw as counsel for Horton, and appointed CJA panel attorney Jay
Moore (Moore) as Horton’s replacement counsel. (ECF Nos. 59, 62, 63). On June 6, 2023, Horton
was sentenced by Chief U.S. District Judge Timothy L. Brooks to 240 months imprisonment, 3
years supervised release, a $900 fine and $100 special assessment following an evidentiary hearing
on Horton’s remaining objections to the Presentence Investigation Report (PSIR) which were all
denied. (ECF Nos. 76, 78).
Moore filed an appeal of Horton’s sentence on June 13, 2023. (ECF No. 81). On December
27, 2023, the Court of Appeals issued its mandate, having affirmed Horton’s sentence on
November 20, 2023. (ECF Nos. 114, 114-1, 114-2).
After several miscellaneous motions related to copies (ECF Nos. 119, 123), this pro se
Motion to Vacate followed.
II. HORTON’S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
Horton asserts multiple grounds for § 2255 relief. 	Horton first alleges Osborne was
ineffective when failing to seek suppression of a package of methamphetamine seized from a UPS
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store in Washington County and ineffective when failing to challenge the Government’s use of an
audio listening device by confidential informants. (ECF No. 129, p. 5). Related allegations appear
in Grounds Five and Six where Horton alleges Benton County Circuit Judge Christine Horwart
lacked jurisdiction to authorize a search warrant for the UPS store in Washington County (Five)
and that detectives never petitioned the Court for authorization to use an audio listening device.
(Six). (ECF No. 129, p. 10).
For Ground Two, Horton complains Moore was ineffective at the time of Horton’s
sentencing when Moore “did not challenge the use of the methamphetamine sentencing disparity
used by the United States Sentencing Commission.” (ECF No. 129, p. 6). With respect to this
claim, Horton alleges he was charged with distributing a methamphetamine mixture but sentenced
with respect to actual methamphetamine. Id. 	Related to sentencing and as Ground Three, Horton
complains the Government did not “prove by a preponderance of the evidence that the alleged
methamphetamine was imported from Mexico” or from a “superlab” for purpose of application of
the sentencing enhancement – the addition of two points to the calculated base offense level for
“specific offense characteristics.” (ECF No. 129, p. 8, referring to ECF No. 77, ¶ 52). 	Horton
argues the package of methamphetamine was “mailed from California, there is no evidence that it
wasn’t manufactured there, and therefore, does not support the importation enhancement.” Id.
Four Ground Four, Horton alleges his sentence was excessive as it amounts to a life
sentence because he was 58 years old at the time of his sentencing and will not be released before
he reaches age 73. (ECF No. 129, p. 9). Horton complains his sentence does not “fit the crime,”
particularly “when the conviction was based on circumstantial evidence.” Id.
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III. UNITED STATES’ RESPONSE
The Government seeks denial of Horton’s § 2255 Motion in its entirety, and without an
evidentiary hearing.
With respect to Horton’s allegation that Osborne was ineffective when failing to seek
suppression of a package of methamphetamine addressed to Horton’s residence but seized by law
enforcement, the Government contends Horton cannot make the required showing under
Strickland v. Washington because – in order to illustrate prejudice – Horton would need first to
establish that the suppression motion would have been granted, resulting in a reasonable
probability that the proceedings against Horton would have ended differently. United States v.
Johnson, 707 F.2d 317, 320 (8th Cir. 1983). 	The Government rejects Horton’s argument that
Judge Horwart lacked authority to issue the warrant – which would be executed in Washington
County, Arkansas – as foreclosed by the Arkansas Supreme Court’s decision in Brenk v. State, 311
Ark. 579, 590 (1993).
Moreover, the Government points out that, to have successfully challenged the search
warrant, Horton must have asserted an interest in the methamphetamine that cloaked him with
Fourth Amendment rights. The Government says counsel’s strategy should not now be second-
guessed 	with 	respect 	to 	suppression 	because 	Horton’s 	assertion 	of 	an 	interest 	in 	the
methamphetamine (which was addressed to Horton’s Madison County address) would have
negatively impacted Horton’s counsel’s ability to argue about the methamphetamine; strategy
decisions such as these are “virtually unchallengeable,” says the Government, citing United States
v. Rice, 449 F.3d 887, 897 (8th Cir. 2006). 	And even had the methamphetamine package been
suppressed, the Government says (1) there was sufficient other evidence to convict Horton, and
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(2) Judge Brooks properly could consider any excluded evidence at Horton’s sentencing hearing
pursuant to United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th Cir. 1996).
The Government describes Horton’s assertion that Osborne should have moved to exclude
evidence obtained from an audio-recording device as similarly deficient. There is no requirement,
says the Government, that law enforcement officers obtain court approval before using a common
investigative tool such as a device to record Horton’s conversations with his “false friends.”
Lacking any viable claim for suppression, either on a technicality or on the merits, the Government
argues Osborne cannot be found ineffective in failing to make the motion, and even if he were,
Horton cannot establish he sustained any prejudice as a result.
Turning to Horton’s sentencing-related claim against Moore, the Government contends
Horton cannot challenge Sentencing Guideline calculations in his § 2255 petition, citing Auman v.
United States, 67 F.3d 157, 161 (8th Cir. 1995). Next, it is argued that Moore’s failure to challenge
the calculations under USSG § 2D1.1 cannot be actionable as ineffective assistance because USSG
§2D1.1 Notes to Drug Quantity Table B provides the unequivocal answer as to why the weight of
actual methamphetamine (as opposed to the weight of a mixture) was used in Horton’s Sentencing
Guideline calculations – a sentencing court is guided to use the offense level determined by “either
the entire weight of the mixture or substance” or the weight of the ”methamphetamine (actual),
whichever is greater.” USSG §2D1.1 Notes to Drug Quantity Table B. Because the weight of the
actual methamphetamine produced the highest base offense level, the Presentence Investigation
Report correctly reflected, and the Court properly relied upon, a base offense level of 36 as Horton
was accountable for “2.07597 kilograms of actual meth.” (ECF No. 77, ¶¶ 44, 45, 51). For these
reasons, the Government urges that Moore’s failure to object to this calculation cannot be
ineffective assistance of counsel, and even if it were, Horton cannot establish that Horton’s
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Sentencing Guideline calculations or his sentence would have differed. The Government points
out the Eighth Circuit reviewed Horton’s case under Anders, and when affirming, found no
nonfrivolous grounds for appeal.
With respect to Horton’s claim that his sentence is excessive and, for all practical purposes,
a life sentence, the Government argues this claim is not properly raised in a § 2255 proceeding
because it was raised on appeal and decidedly adversely to Horton. 	The Government points out
that Horton’s appeal included an argument that his sentence was substantively unreasonable and
that Judge Brooks did not “give enough weight to several mitigating factors, specifically, Mr.
Horton’s age;” these claims, says the Government, were rejected by the Eighth Circuit and are
foreclosed. Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v.
Wiley, 245 F.3d 750, 752 (8th Cir. 2001) (“Issues raised and decided on direct appeal cannot
ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.”).
Finally, with respect to Horton’s remaining claims that he was subjected to an unlawful
search and seizure of the methamphetamine and unlawful use of an audio-recording device, the
Government says that these non-jurisdictional Fourth Amendment arguments are foreclosed from
consideration under § 2255 by Horton’s guilty plea. See Smith v. United States, 876 F.2d 655, 657
(8th Cir)., cert denied, 493 U.S. 869 (1989).
With respect to Horton’s evidentiary hearing request, the Government states that § 2255
and Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District
Court (“Rule 4(b)”) provide the framework for determining whether an evidentiary hearing should
be granted. Under § 2255, prisoners are not entitled to a hearing where the record conclusively
illustrates the prisoner’s ineligibility for relief. Relying on Rule 4(b), the Government contends
no evidentiary hearing is needed given that all the information necessary to decide Horton’s § 2255
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claims is already in the record, citing Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) and
United States v. Ledezma-Rodriguez, 423 F.3d 830, 835-36 (8th Cir. 2005). (ECF No. 136, pp. 4-
5).
IV. DISCUSSION
When federal prisoners believe their sentence is in violation of the Constitution or laws of
the United States, or that their sentence exceeded the maximum sentence by law, or is otherwise
subject to collateral attack, they may move the court which imposed the sentence to either vacate,
set aside or correct the sentence. 28 U.S.C. § 2255(a). Courts may grant § 2255 motions if they
find the law does not authorize the judgment or if denials and infringements upon the constitutional
rights of the prisoner exist which render the judgment vulnerable to collateral attack. 28 U.S.C. §
2255(b). As the Eighth Circuit has stated, “[r]elief under 28 U.S.C. § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of injuries that could not have been
raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.”
Walking Eagle v. United States, 742 F.3d 1079, 1081–82 (8th Cir. 2014) (quoting United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).
A review of Horton’s § 2255 Petition, considering the district court’s record, conclusively
illustrates that he is not entitled to relief. The undersigned recommends dismissal of Horton’s §
2255 Motion with prejudice and without conducting an evidentiary hearing.
A. Timeliness
Section 2255(f) imposes a 1-year limitation period for filing this motion. Time begins to
run from the latest of the following: (1) the date when the conviction judgment becomes final; (2)
the date when the impediment to making a motion created by the governmental action in violation
of the Constitution or law of the United States is removed, if the movant was prevented from
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making a motion by such governmental action; (3) the date when the right asserted was initially
recognized by the Supreme Court and made retroactively applicable to cases on collateral review;
or (4) the date when the facts supporting the claim or claims presented could have been discovered
through exercise of due diligence. 28 U.S.C. § 2255(f).
Horton filed his § 2255 Motion on December 2, 2024. The Eighth Circuit Court of Appeals
issued an opinion and judgment on November 15, 2023. 	Horton’s conviction became final on
February 13, 2024; therefore, Horton’s § 2255 Motion was filed within the 1-year period of
finality, and the timeliness of his Motion is not at issue.
B. Procedural Bars
Pursuant to § 2255, a federal prisoner may seek relief from a sentence imposed against him
on the ground that “the sentence was imposed in violation of the Constitution or law of the United
States, or that the court was without jurisdiction to impose such sentence, or that the sentence was
in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Section
2255, however, “does not encompass all claimed errors in conviction and sentencing,” but only
“jurisdictional and constitutional errors.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir.
2011). “[A]n error of law does not provide a basis for collateral attack unless the claimed error
constituted a fundamental defect which inherently results in a complete miscarriage of justice.” Id.
(citations omitted); see also Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994)
(Petitioners “cannot raise a nonconstitutional or nonjurisdictional issue in a § 2255 motion if the
issue could have been raised on direct appeal but was not.”).
Applying these principles, the Eighth Circuit and sister circuits have consistently held “that
ordinary questions of [sentencing] guideline interpretation falling short of the ‘miscarriage of
justice’ standard do not present a proper section 2255 claim.” Auman v. United States, 67 F.3d
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157, 161 (8th Cir.1995); accord United States v. Pregent, 190 F.3d 279, 284 (4th Cir.1999); United
States v. Williamson, 183 F.3d 458, 462 (5th Cir.1999); Graziano v. United States, 83 F.3d 587,
590 (2d Cir.1996). Therefore, where a sentence is not unlawful, sentencing questions generally
“may not be re-litigated under § 2255.” United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.
2000). An unlawful or illegal sentence is one imposed without, or in excess of, statutory authority.
United States v. Foster, 514 F.3d 821, 824 (8th Cir. 2008); United States v. Stobaugh, 420 F.3d
796, 804 (8th Cir. 2005) (“a sentence is not illegal ... unless it exceeds the statutory maximum for
the offense of conviction”), cert. denied, 546 U.S. 1120 (2006).
Here, the maximum sentence that could be applied pursuant to 21 U.S.C. § 841(b)(1)(C)
was 240 months (ECF No. 77, ¶ 179), and this was also the calculated guideline term (ECF No.
77, ¶ 180); Judge Brooks imposed a sentence of 240 months, and the sentence was affirmed on
appeal. Issues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral
proceeding based on 28 U.S.C. § 2255. See United States v. McGee, 201 F.3d 1022, 1023 (8th Cir.
2000) 	(per 	curiam). 	Horton’s 	Grounds 	Two 	and 	Three 	– 	arguing 	misapplication 	and/or
miscalculation of the Guidelines – are foreclosed because in the absence of a miscarriage of justice
(i.e., Horton’s sentence does not exceed that authorized by law, United States v. Addonizio, 422
U.S. 178, 185 (1979)), Section 2255 offers Horton no sentencing relief.
Horton then argues in Ground Four that this sentence is effectively a life sentence for him.
While this may be the unfortunate effect of this length of incarceration imposed at Horton’s
sentencing age, this does not afford Horton relief under § 2255 as the Eighth Circuit concluded the
length of Horton’s sentence was not substantively unreasonable. (ECF Nos. 114, 114-1, 114-2).
The undersigned thus recommends that Grounds Two, Three and Four be denied as
procedurally barred.
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Furthermore, “a guilty plea waives all defects except those that are jurisdictional.” United
States v. Todd, 521 F.3d 891, 895 (8th Cir. 2008) (internal quotation omitted); see also Walker v.
United States, 115 F.3d 603, 604 (8th Cir. 1997) (“[A] valid guilty plea forecloses an attack on a
conviction unless on the face of the record the court had no power to enter the conviction or impose
the sentence.”) (cleaned up); Bousley v. United States, 523 U.S. 614, 621 (1998) (it is “well settled”
that a voluntary and intelligent guilty plea “may not be collaterally attacked.”). “When a criminal
defendant has solemnly admitted in open court that he is in fact guilty of the offense with which
he is charged, he may not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411
U.S. 258, 267 (1973).
The undersigned believes that Grounds One, Five and Six – alleging Fourth Amendment
violations and challenging counsel’s lack of suppression motions prior to the date of Horton’s plea
– are procedurally barred by Horton’s informed, voluntary and uncoerced guilty plea. (ECF Nos.
43, 44). Out of an abundance of caution, however, these claims will be addressed below.
C. Ineffective Assistance of Counsel Claims
Where federal prisoners believe their constitutional right to an effective attorney was
violated, they may raise ineffective assistance of counsel claims to argue a Sixth Amendment
violation. Strickland v. Washington, 466 U.S. 668, 699, 701 (1984). When determining whether a
prisoner’s right to effective counsel was violated, the court must apply a two-part test: (1)
performance – whether the defendant’s attorney acted in a manner unreasonable to prudent
counsel; and (2) prejudice – but for defendant’s attorney’s action, defendant would have a different
outcome. Id., at 687-88. When considering the first element, there is a “strong presumption that
counsel's conduct falls within the wide range of professionally reasonable assistance and sound
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trial strategy.” Toledo v. United States, 581 F.3d 678, 680 (8th Cir. 2009) (quoting Garrett v.
United States, 78 F.3d 1296, 1301 (8th Cir.1996)). Where a defendant is unable to prove prejudice,
the reviewing court does not need to address the deficiency of counsel’s performance. Strickland,
466 U.S. at 688. Regarding prejudice, the standard is one of “reasonable probability.” Id., at 694.
“The burden of proving ineffective assistance of counsel rests with the defendant.” United States
v. White, 341 F.3d 673, 678 (8th Cir. 2003) (citing United States v. Cronic, 466 U.S. 648, 658
(1984)). To satisfy a showing of prejudice in cases involving guilty pleas, the defendant must
show that “there is a reasonable probability that, but for counsel's errors, [he] would not have
pleaded guilty and would have insisted on going to trial.” York v. Lockhart, 856 F.2d 61, 63 (8th
Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985))
Counsel is not ineffective for failing to pursue a motion to suppress that he reasonably
believes would be futile. See United States v. Luke, 686 F.3d 600, 606 (8th Cir. 2012); Rodriguez
v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (per curiam). Put another way, failure to file a
motion to suppress does not automatically demonstrate constitutionally ineffective assistance of
counsel, Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).
First, with respect to Horton’s challenge to the authority of Benton County Circuit Judge
Horwart to issue a search and seizure warrant to be executed in Washington County, the Arkansas
Supreme Court answered this question in Brenk v. State, 311 Ark. 579 (1993), where it was held:
The statute which controls a judicial officer's ability to issue a search warrant is
Ark. Code Ann. § 16–82–201 (1987). It provides in pertinent part: “A search
warrant may be issued by any judicial officer of this state only upon affidavit sworn
to before a judicial officer which establishes the grounds for its issuance.” Ark.
Code Ann. § 16–82–201(a). The applicable statute does not give any indication that
the jurisdiction of a judicial officer in issuing search warrants is limited to the
county in which the judicial officer was elected or appointed. In fact, it expressly
provides that a search warrant may be issued by any judicial officer. We refuse to
find that judicial officers are limited to issuing search warrants only in the counties
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in which they were elected or appointed and, therefore, find that the search warrant
issued by Judge Bearden was valid.
Id. at 590. 	Ark. Code Ann. § 16-82-201(a) governs the issue of search warrants now as it did in
1993, and thus, pursuant to the still good law set forth in Brenk, Judge Horwart possessed the
necessary legal authority to issue the warrant which resulted in the seizure of a package of
methamphetamine from the UPS store in Washington County. When a defendant claims that
counsel was ineffective by failing to litigate a Fourth Amendment challenge to a search and
seizure, the defendant must prove that the claim is meritorious. Kimmelman v. Morrison, 477 U.S.
365, 375 (1986). 	Horton has not and cannot clear this hurdle – any motion challenging Judge
Horwart’s authority to issue the warrant is antithetical to Arkansas law, and Horton’s Ground Five
is soundly rejected for this reason.
Moreover, even if the undersigned believed (and it does not) that Osborne was ineffective
for failure to seek suppression of the package of methamphetamine and successfully could have
overcome the plethora of legal exceptions available in Fourth Amendment jurisprudence, Horton
still cannot illustrate prejudice under Strickland – Judge Brooks was permitted to consider the
seized methamphetamine at the time of Horton’s sentencing even if the methamphetamine was
suppressed for the purposes of trial. See United States v. Tauil-Hernandez, 88 F.3d 576, 581 (8th
Cir. 1996) (“Extending the exclusionary rule to sentencing would have a detrimental effect on the
traditional judicial prerogative of sentencing an offender based upon all the relevant and reliable
information that is available.”); see also United States v. Lynch, 934 F.2d 1226, 1234-37 (11th Cir.
1991), cert. denied, 502 U.S. 1037 (1992) (declining to extend the exclusionary rule to sentencing).
With respect to seeking suppression of the audio listening device evidence, Horton offers
no grounds for its suppression. Other than wiretaps, there appears no requirement that law
enforcement obtain court permission to use a listening or recording device for conversations in
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which a defendant may participate during controlled drug transactions. And it is well-established
in Fourth Amendment law that a person engaged in a conversation assumes the risk that another
party to the conversation might choose to divulge or even record the conversation. See United
States v. White, 401 U.S. 745, 752–53 (1971). When audiotaping a conversation, an informant’s
consent is generally all that is needed to render the taping permissible. United States v. Corona-
Chavez, 328 F.3d 974, 981 (8th Cir. 2003) (citations omitted). 	Ground Six thus entirely lacks
merit. To the extent Ground Once alleges Osborne should have pursued this theory via a motion
to suppress, it also lacks merit. Counsel is afforded deference when it comes to matters of trial
strategy. See United States v. Villalpando, 259 F.3d 934, 939 (8th Cir. 2001). 	Horton’s burden
under § 2255 is to show “that counsel made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
Horton does not and cannot make the requisite showing as to Grounds One or Six.
Failing as a matter of law, the undersigned recommends that Grounds One, Five and Six
be dismissed with prejudice.
As a precaution and to the extent they survive procedural default – Horton’s contentions in
Ground Two that Moore was ineffective for failing to make objections related to application of the
sentencing guidelines and in Ground Three that the United States had not made a requisite
evidentiary showing about the seized methamphetamine, the record before the Court is to the
contrary.
With respect to Ground Two, while Moore did not himself file objections to the PSIR,
Osborne filed seven (7) objections, including Objections 1 and 5 challenging PSIR Paragraphs 28
and 52 as Horton “believes there is insufficient proof that any drugs came from Mexico.” (ECF
Nos. 	70, 	70-1). 	Osborne 	made 	five 	(5) 	additional 	objections, 	objecting 	to 	inclusion 	of
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methamphetamine seized on September 12, 2022, at the postal sorting facility (Objection 2);
challenging the total weight of the actual methamphetamine (Objection 3); objecting to the base
offense level, arguing it should be level 30 based upon the total weight of the actual
methamphetamine (Objection 4); objecting to the final offense level, arguing it should be a level
27 (Objection 6); and objecting that the correct guideline range should be 130-162 months, rather
than 240 month (Objection 8). (ECF Nos. 70, 70-1). Moore did not waive or dismiss any objection
but pursued each during the Sentencing Hearing with Judge Brooks. (ECF No. 89).
With respect to the enhancement (Ground Three), the Government 	called Joshua
Cookinham, a detective with the Rogers Police Department, to testify, and Moore cross-examined
Cookinham with respect to the factual basis for the enhancement. (ECF No. 89, pp. 10-41).
Despite Moore’s arguments, Judge Brooks overruled Horton’s objections and rejected a contention
that Horton now re-asserts in his § 2255 Motion (i.e., that the evidence against him is
circumstantial), with Judge Brooks recognizing that “circumstantial proof is every bit as good as
direct proof. The law makes no distinguishment between the two types of proof.” (ECF No. 89,
p. 50). Judge Brooks went into sufficient and careful detail, as the sentencing transcript reflects,
when making his factual findings for application of the sentencing enhancement, and overruling
Horton’s objections to the contrary. (ECF No. 89, pp. 49-62). Here, the record simply does not
reflect that either Osborne or Moore abandoned their obligations to Horton during the presentence
or sentencing phase of his case or acted in any way contrary to reasonable and prudent counsel.
D. Evidentiary Hearing
A § 2255 motion may be dismissed without hearing if: (1) Defendant's allegations, if
accepted as true, would not entitle him to relief; or (2) the allegations cannot be accepted as true
because they are contradicted by the record, are inherently incredible, or are conclusions, rather
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than statements of fact. Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998). Moreover,
where the record includes all the information necessary for the court to rule on the motion, an
evidentiary hearing is unnecessary. Covey v. United States, 377 F.3d 903, 909 (8th Cir. 2004)
(citations omitted).
Applying this standard to the allegations and the record, the undersigned finds Horton fails
to meet the requirements identified in Delgado, 162 F.3d at 983, and the record here includes all
the information necessary for the Court to rule. Covey, 377 F.3d at 909. Accordingly, no
evidentiary hearing is required in this case.
E. Certificate of Appealability
To appeal an adverse decision on a § 2255 motion, a movant must first obtain a certificate
of appealability. See 28 U.S.C. § 2253(c)(1)(B). A court cannot grant a certificate of appealability
unless the applicant has made “a substantial showing of the denial of a constitutional right.” Id. §
2253(c)(2). Upon review, the undersigned observes that issuance of a certificate is not appropriate
here as no issue raised by Horton is “debatable among reasonable jurists.” Flieger v. Delo, 16 F.3d
878, 882–83 (8th Cir. 1994) (citing Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam)).
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Horton’s Motion to Vacate, Set Aside, or
Correct Sentence (ECF No. 129) be DENIED. It is also recommended that Horton’s request for
an evidentiary hearing be DENIED and any future request for a certificate of appealability be
DENIED.
For these same reasons, it is recommended that Horton’s Motion to Appoint Counsel (ECF
No. 138) and Motion for Copies (ECF No. 140) be DENIED as MOOT.
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The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. The parties are
reminded that objections must both be timely and specific to trigger de novo review by the
district court.
RECOMMENDED this 27th day of January 2026.
____________________________________
CHRISTY COMSTOCK
U.S. MAGISTRATE JUDGE
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