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Daniels v. Kelley

United States District Court, E.D. Arkansas, Pine Bluff Division

September 19, 2016

JAMES E. DANIELS, JR. PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          OPINION AND ORDER

          J. LEON HOLMES UNITED STATES DISTRICT JUDGE.

         This is 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 the merits.

         Daniels' 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.

         I. THE HISTORY OF THE CASE

         A. The Arrest

         According 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.

         When 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.

         B. Overview of the Procedural History Leading to Daniels' Conviction

         On 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.

         On 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.

         At 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.

         With 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.

         C. The October 12, 2010 Plea and Arraignment

         On 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, [1] and 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.

         The judge then said:

THE COURT: Now, with respect to Mr. Daniels, what have you got?
MS. BRADSHAW: Your Honor, he has a parole hold on him.
THE COURT: It doesn't matter then.

Id. at 63.

         After 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. Bradshaw.

Id. at 64-65.

         Bradshaw then raised the issue of whether the court could do anything regarding Daniels:

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 transportation issues?
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, [2] 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.

         After a 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 a continuance.
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.

         In 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 December 14.

         After 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.

         Contrary 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.

         After 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.

         D. The November 15, 2010 Omnibus Hearing

         The 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 ...

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