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.
Daniels, Jr., has filed a motion for relief from judgment
pursuant to Federal Rule of Civil Procedure 60. Because this
Court, the magistrate judge to whom it was previously
referred, and the Eighth Circuit Court of Appeals have
written prior opinions, and the parties are thoroughly
familiar with the procedural and factual history, the Court
will not review the background of this case but will,
instead, proceed directly to the merits of the motion.
motion concerns a letter from Willard Proctor to Daniels'
mother, Gloria Daniels, dated April 2, 2012, in which Proctor
confirmed that Gloria Daniels had contacted him about
representing James Daniels in a jury trial, but Proctor had
declined the representation because of a scheduling conflict
and because he was informed that the trial date could not be
continued. In this Court's amended opinion and order, the
Court stated that the letter was not part of the record
before the Arkansas courts and therefore could not be
considered. Document #27 at 30, fn.10. Daniels has now
provided a copy of an amended reply to the State's
response to his Rule 37.1 petition filed on April 30, 2012,
with the letter from Proctor to Gloria Daniels attached.
Document #37-1. Daniels argues that the Court should set
aside the judgment under Rule 60 because of the discovery
that the Proctor letter was in the state court record.
provides a number of grounds for relief. Daniels' motion
does not specify which provision of Rule 60 upon which he is
relying. His argument, however, suggests that he is arguing
excusable neglect, which is a ground for relief under Rule
60(b)(1). Specifically, Daniels says in his motion that the
Clerk of the Drew County Circuit Court omitted the amended
response, with Proctor's letter attached, when preparing
the record for appeal of the denial of his Rule 37 motion.
Daniels says that his current lawyer “fortuitously
learned” that the letter was a part of the state court
record and should have been considered by the Court in
consideration of Daniels' claims for relief. As noted
above, the Proctor letter was attached to an amended response
filed by Daniels as an exhibit to an amended reply to the
State's response to his Rule 37.1 petition. Thus, even if
that letter did not find its way into the record on appeal
from the denial of his Rule 37 petition, Daniels knew that it
was part of the state court record because he filed it. He
has the burden at this point to establish that the neglect in
bringing the amended reply to the Court's attention
earlier is excusable. He has offered nothing in excuse for
failing to bring the amended reply to the Court's
attention before the Court ruled on his section 2254
petition. Because Daniels has offered nothing to excuse his
neglect in failing to bring the amended reply to the
Court's attention earlier, he is not entitled to relief
under Rule 60(b)(1). Nor is he entitled to relief under any
other provision of Rule 60.
Daniels otherwise met the requirements of Rule 60, the fact
that he attached the Proctor letter to an amended reply to
the State's response to his Rule 37 petition would not
change the outcome of this case.
section 2254 petition asserted two grounds for relief. First,
he asserted that the denial of his motion for a continuance
violated his right to counsel of choice as guaranteed by the
sixth and fourteenth amendments. Secondly, he asserted that
the public defender who represented him at trial was
ineffective. The magistrate judge to whom his case was
assigned recommended that the Court grant Daniels'
petition on the question of whether he was denied his sixth
amendment right to counsel but deny Daniels' claim that
the public defender who represented him was ineffective. The
respondent 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. This Court
overruled the magistrate judge on that point, and the Eighth
Circuit affirmed. Daniels did not object to the magistrate
judge's recommendation that the Court deny his claim that
the public defender was ineffective, and the Court adopted
that recommendation without objection.
recommended disposition, the magistrate judge addressed
Daniels' claim that the public defender was ineffective
for failing to make a more specific record in his efforts to
obtain new counsel. Document #17 at 41. The factual basis for
that claim included the Proctor letter. Id. The
factual basis also included an affidavit from Daniels stating
that he told the public defender that his family had
contacted Proctor and could hire Proctor but Proctor could
not accept the case due to the upcoming trial date.
Id. at 42. The recommendation accepted as true
Daniels' claims that Proctor would have represented him
if the trial could be continued and that Daniels so informed
his public defender. In denying Daniels' claim that the
public defender was ineffective for failing to inform the
state trial judge of these facts concerning Proctor, the
magistrate judge held that Daniels had not met the first
prong of the Strickland test. Id. at 43.
The public defender had filed a motion for a continuance on
December 10, 2010, six days before trial, in which she
informed the court that Daniels “continues to desire to
retain private counsel.” According to the magistrate
judge, the decision by the public defender to state no more
details was a “tactical decision” that
“cannot be faulted.” Id. at 44. The
letter from Proctor to Gloria Daniels is dated April 2, 2012.
It was filed in the state court record on April 30, 2012. The
fact that the letter became a part of the state court record
on April 30, 2012, could not change the magistrate
judge's determination that the public defender made a
“tactical decision” that “cannot be
faulted” nearly sixteen months earlier.
that letter change this Court's determination that
Daniels has failed to show that the Arkansas Court of
Appeals' decision was contrary to or an unreasonable
application of clearly established federal law, or a decision
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.
See 28 U.S.C. § 2254(d). The issue of whether
the trial court violated Daniels' sixth amendment right
to counsel by refusing to grant him a continuance was
addressed by the Arkansas Court of Appeals on direct appeal
in an opinion dated January 4, 2012. The amended reply to the
State's response to Daniels' Rule 37 petition was
filed on April 30, 2012, which obviously was after the direct
appeal. At the time the court of appeals issued its decision
on January 4, 2012, that letter was not part of the record
before it. Under Cullen v. Pinholster, 563 U.S. 170,
182, 131 S.Ct. 1388, 1398, 179 L.Ed.2d 557 (2011), the
amended reply, with the attached Proctor letter, cannot be
considered because the letter was not part of the record
before the Arkansas Court of Appeals when that court made the
decision that Daniels seeks to attack under section 2254(d).
reasons stated, the motion for relief from the judgment
pursuant to Federal Rule of Civil ...