United States District Court, E.D. Arkansas, Pine Bluff Division
JAMES E. DANIELS, JR. PETITIONER
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
a habeas case brought by James E. Daniels, Jr., pursuant to
28 U.S.C. § 2254. Daniels was convicted in the Circuit
Court of Drew County, Arkansas, on one count of possession of
marijuana with intent to deliver and one count of possession
of methamphetamine with intent to deliver. He was sentenced
to a total of 65 months. On direct appeal, he argued, first,
that the circuit court abused its discretion in denying his
request for a continuance to give him time to hire private
counsel to replace his public defender and, second, that the
evidence was insufficient to support the conviction for
possession of methamphetamine with intent to deliver. After
the Arkansas Court of Appeals affirmed, Daniels filed a
motion for post-conviction relief pursuant to Rule 37 of the
Arkansas Rules of Criminal Procedure, reiterating his
argument that the trial court erred in refusing to grant him
a continuance to give him time to hire private counsel to
replace the public defender, asserting that the circuit judge
was biased against him, and arguing that the public defender
was ineffective on several grounds. The circuit judge denied
the Rule 37 motion, and the Arkansas Supreme Court affirmed.
On the issue of whether Daniels was denied his right to
counsel, the Arkansas Supreme Court held in part that the
previous decision by the Arkansas Court of Appeals was the
law of the case and therefore did not address that issue on
present petition asserts two grounds for relief. First,
Daniels argues that the denial of his motion for continuance
violated his right to counsel of choice as guaranteed by the
sixth and fourteenth amendments. Second, Daniels argues that
the public defender who represented him at trial was
ineffective. The magistrate judge to whom this case was
assigned has recommended that the Court find in favor of
Daniels and grant his habeas petition on the question of
whether he was denied his sixth amendment right to counsel.
Document #17. He also recommended that the Court deny
Daniels' claim that the public defender who represented
him at trial was ineffective. Id. The State of
Arkansas has objected to the magistrate judge's
recommendation that the Court find in favor of Daniels on his
claim that he was denied his right to counsel. Document #20.
Neither party has objected to the recommendation that the
Court deny Daniels' claim that the public defender who
represented him was ineffective. The Court adopts the
recommendation by the magistrate judge that Daniels'
claim of ineffective assistance of counsel be denied. For
reasons that will be explained, the Court declines to adopt
the recommendation that the circuit judge violated
Daniels' sixth amendment right to counsel. Daniels'
petition will be denied.
THE HISTORY OF THE CASE
to his testimony at trial, Daniels was a drug dealer living
in Little Rock on August 26, 2010, when he received a call
from a regular customer from south Arkansas seeking to
purchase methamphetamine and marijuana. Document #16 at 232,
244. Daniels' father had died two days earlier, so he
initially declined to accommodate that customer, but the
customer persisted. Id. at 232-33. Daniels did not
have what the customer requested, but he eventually relented
and called another drug dealer, Justin Jones, who agreed to
sell methamphetamine to Daniels' customer. Id.
at 234. Jones' car was “running hot, ” so
Daniels agreed to transport Jones to south Arkansas to
deliver the methamphetamine. Daniels also made arrangements
to purchase marijuana for resale to the south Arkansas
customer. Id. at 235. Daniels picked up Jones,
obtained the marijuana, and proceeded to drive toward south
Arkansas, with his wife, Tinya Sterling, as a passenger in
the front seat, while Sterling's daughter and Jones were
passengers in the backseat. Id. at 218, 228.
they reached south Arkansas, the route toward the rendezvous
destination took them along County Road 133 in Drew County.
Id. at 120, 160-61. Unbeknownst to Daniels, drug
task force officers had obtained a search warrant for his
vehicle, and an officer activated the blue lights behind him.
Id. at 116-17, 160-61, 236. Daniels was preparing to
stop, when Jones said to him, “Don't stop, man.
We've got to get rid of this dope.” Id. at
236-37. Jones dropped the dope in between the cupholder and
the seat. Id. Another police car approached from the
opposite direction and stopped. Id. at 120-21, 162.
Daniels attempted to flee and in that attempt struck the door
of the police car that had stopped in front of him, causing
that door to strike an officer named Jason Akers.
Id. at 123-24, 141, 152, 239. After a short chase,
Daniels stopped and was arrested. Bags containing marijuana
and methamphetamine were found in or along the road.
Id. at 126, 129-31, 152-53, 367. In a written
statement, Daniels said that he threw the methamphetamine out
of the car. Id. at 383. Jones passed it up to him
because the windows adjacent to the rear seat did not
function. Id. Daniels' wife testified that she
threw the marijuana out of the car. Id. at 219.
Daniels testified, however, that he threw the marijuana out
of the car. Id. at 231-32.
Overview of the Procedural History Leading to Daniels'
August 27, 2010, Daniels had his initial appearance in the
District Court of Desha County. Document #16 at 9. He was
found to be indigent and Sandra Bradshaw, a public defender,
was appointed to represent him. Id. The court set
Daniels' bond at $1, 000, 000, but he was already in
custody for a parole violation.
September 14, 2010, a Criminal Information was filed in Drew
County Circuit Court charging Daniels with: (1) possession of
methamphetamine with intent to deliver; (2) possession of
marijuana with intent to deliver; (3) first degree child
endangerment; and (4) attempted first degree battery on
Officer Akers. Document #16 at 7-8. The adult occupants of
Daniels' vehicle, Jones and Sterling, were charged as
co-defendants. Id. at 7. Jones was charged with
possession of methamphetamine with intent to deliver and
possession of marijuana with intent to deliver. Id.
Sterling was charged with possession of methamphetamine with
intent to deliver, possession of marijuana with intent to
deliver and the offense of first degree child endangerment.
Id. She entered a guilty plea. Id. at 220.
Jones could not make his $500, 000 bond, so he remained in
custody as a pretrial detainee.
trial, Daniels admitted that he possessed marijuana with
intent to deliver. Id. at 230-31. He denied the
remaining charges. Id. at 241. At the close of all
of the evidence, the judge directed a verdict on the charge
of first degree child endangerment. Document #16 at 259. The
jury found Daniels not guilty on the battery charge but
guilty of possession of marijuana with intent to deliver and
possession of methamphetamine with intent to deliver.
Id. at 280. In the bifurcated sentencing phase, the
jury fixed Daniels' sentence to be 15 years on the
possession of marijuana charge and 50 years on the
methamphetamine charge, recommending that the two terms run
consecutively. Id. at 312.
this overview having been presented, the Court will review in
more detail the events relevant to Daniels' claim that
the circuit judge violated the sixth amendment by denying his
request for a continuance.
The October 12, 2010 Plea and Arraignment
October 12, 2010, Daniels and his two co-defendants made
their first appearances in Drew County Circuit Court. The
circuit judge first took up the issue of the appropriate bond
for Jones. As noted above, Jones' bond was set at $500,
000. Document #16 at 57. The judge recognized that the bond
was “set way too high” and began asking questions
relevant to the issue of what would be a reasonable bond for
Jones. Id. at 58-59. Jones' lawyer requested a
bond of $10, 000. Id. at 60. The State wanted a
higher bond. Id. at 62. The judge asked Jones'
mother whether she had a thousand dollars in cash available,
she said that she did not have that much money but could try
to get it. Id. In that context, the judge stated:
THE COURT: I'm going to put the bond at this point at 75,
000. If you come up with enough maybe to make a fifty
thousand one, I may take a look at it again, but - Because a
bail bondsman will come back with your head over fifty
thousand. But 75, 000 right now. The best thing I can do is
to fast track this. How long have you been in jail?
MR. JUSTIN JONES: A month and a half.
THE COURT: The best thing I can do is fast track this case to
a conclusion and get a trial. Because if he can't make
the bond - If Daniels can't make the bond and so on, then
I don't want them sitting in jail unnecessarily. Why
don't we fast track it? Why don't we set it for
trial? And I need for you to - I don't know if you've
got any motions to file, but why couldn't we try it -
Well, we'll try it on the week of December 14th.
Id. at 62-63. Thus, immediately after setting
Jones' bond at $75, 000, the judge recognized that Jones
probably could not make that bond, mentioned the prospect
that Daniels might not be able to make bond, stated that the
best thing to do was to fast-track the case, and set the case
for trial during the week of December 14.
judge then said:
THE COURT: Now, with respect to Mr. Daniels, what have you
MS. BRADSHAW: Your Honor, he has a parole hold on him.
THE COURT: It doesn't matter then.
Id. at 63.
that comment, the judge turned back to Jones and questioned
whether he was on parole or probation. Id. After
learning that Jones was on supervised probation in a court in
Pine Bluff, Arkansas, the judge noted that the court in Pine
Bluff could revoke Jones' probation before December 14.
Id. at 64. The prosecutor then reported that he
believed that the court in Pine Bluff would revoke Jones, and
the court replied:
THE COURT: My point is he could be gone from here and
you'd bring him back here for trial. And if he's gone
from here then it's going to be easier for you to work
out a plea bargain (unintelligible) this at the same time as
the other one. I'm not telling you to use that one as
leverage, but that's what they would do. I would ask
you-all to come up with a plea bargain and give it to Ms.
Id. at 64-65.
then raised the issue of whether the court could do anything
MS. BRADSHAW: Judge, is there anything you can do - Mr.
Daniels is awaiting bed space in ADC, and who knows how long
that would go - so that we don't have all these
THE COURT: You know, if I were the State, I'd make a plea
offer today. I'd put it in writing. I'd hand it to
you in two minutes. I'd check with Mr. Carr,
I'd say, Let's make a deal and let's not bring
this guy back down here from the department of corrections
and make the sheriff's office run up there and get him.
I'd make him one he would take and I'd be done with
the case in two minutes and prepare the paperwork today.
Whether they do that or not, I don't know. But they have
a range of punishment; they know what kind of case
they've got against him. It'd work just like that,
that fast. And with respect to - And that would save a
transport order, it would save you from coming back to court.
Id. at 65-66.
recess, Bradshaw reported that the State had made a plea
offer of 80 years, the judge asked Daniels “yes or
no?” and Daniels responded, “No.”
Id. at 67. Then the following colloquy occurred:
THE COURT: Very well. And we've got it set for trial -
MS. ROSEGRANT: December 14th.
THE COURT: - December 14th. He's about to go back to ADC.
Do a transport order, bring him back on - Yes, sir?
MR. JAMES DANIELS: Sir, will I have an opportunity to have my
parents to get - THE COURT: An opportunity to, what?
MR. JAMES DANIELS: To get paid counsel.
THE COURT: Well, you've got paid counsel - the
State's paying her - and you've got a very good
lawyer. But, obviously, she's not fighting to stay on the
case if you - If you retain counsel, either you or someone on
your behalf, certainly you have the right to select counsel.
However, that right is limited with respect to when this case
is tried, and I will not allow new counsel coming on to cause
MR. JAMES DANIELS: Well, I'm not saying anything about
her - THE COURT: Well, I know you're not. I know
you're not. She's excellent. But if they can find one
that - MS. BRADSHAW: A real lawyer, Judge, is what he's -
THE COURT: But you just tell them if you bring new counsel on
the case, I will not continue it on that account simply
because they've come on the case and are not prepared.
The case will be tried in December regardless. That's
what I mean. So if they're going to do it, they have to
do it now.
MR. JAMES DANIELS: Yes, sir.
Id. at 68-69.
summary, at the plea and arraignment, the judge began by
recognizing that the bond that had been set for Jones was
excessive, making appropriate inquiries relevant to the issue
of what would be a reasonable bond for Jones, recognizing
that Jones probably would not be able to post a bond in the
amount that the judge determined to be reasonable, and
concluding based on that discussion that the best course
would be to fast-track the case. The judge then announced
that he would set the case for trial during the week of
this discussion, resulting in the decision to fast-track the
case and set it for trial on December 14 due to Jones'
situation, the judge turned his attention to Daniels'
situation. The judge learned from Bradshaw that Daniels had a
parole hold on him, and said, “It doesn't matter
then.” He apparently recognized that because of the
parole hold Daniels would not be posting bond and that the
sense of urgency in setting a trial for Jones did not apply
to Daniels. After some further discussion regarding Jones,
Bradshaw raised the issue of Daniels awaiting bed space at
the ADC and asked the judge if there was anything that he
could do so that she did not have to address the
transportation issues. In response, the judge suggested that
the prosecutor make a plea offer that day, which would save a
transport order. A recess was taken, the prosecutor made a
plea offer, Daniels rejected the plea offer, and the
proceedings resumed in open court.
to Daniels' argument, the judge did not, so far as the
record shows, participate in the plea negotiations. In
response to a request from Bradshaw, “is there anything
you can do” regarding the transportation issues that
would ensue when Daniels went to the ADC, he suggested that
the prosecutor make a plea offer, but he did not make any
suggestion as to what the plea offer would be, nor did he
make any suggestion to Daniels as to what Daniels'
response to that plea offer should be.
Daniels reported to the judge that he had declined the plea
offer, the judge directed that a transport order be prepared
to bring Daniels back from the ADC for trial on December 14.
Daniels asked the judge whether his parents would have the
opportunity to get paid counsel. After noting that Daniels
had a good lawyer being paid by the State, the judge
responded, “obviously, she's not fighting to stay
on the case” and expressly acknowledged to Daniels,
“you have the right to select counsel.” The judge
warned Daniels, however, that his policy was not to grant a
continuance based on the fact that a defendant had hired a
new lawyer. Shortly after the plea and arraignment, the judge
entered an order and stated, in pertinent part:
“Defendant advised the Court he may retain private
counsel. The Court gave notice to Defendant that if new
counsel is retained no continuances would be granted.”
Id. at 13.
The November 15, 2010 Omnibus Hearing
court conducted an omnibus hearing, in preparation for trial,
on November 15, 2010. Jones appeared with his lawyer,
Leonard, while Daniels appeared with Bradshaw. An attorney
named Dale West also was present. After establishing that
Leonard represented Jones, the following occurred:
THE COURT: . . . . Ms. Bradshaw represents Mr. Daniels?
MS. BRADSHAW: Yes.
MR. DALE WEST: Your Honor, may I speak?
THE COURT: Let her get her answer out then certainly you ...