J. LEON HOLMES, 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 years. 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.
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.
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.
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,
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:
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:
Id. at 64-65.
Bradshaw then raised the issue of whether the court could do anything regarding Daniels:
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:
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.
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:
Document #16 at 71. There is some question regarding whom the judge was addressing when he asked, "You don't want on the case?" It would be odd to pose that question to Bradshaw since she was already on the case. On the other hand, the question comes in the context of comments by the court that were directed to Bradshaw, and West apparently did not interpret the question as directed to him because rather than answering the question, he requested permission to speak.
After being given permission to speak, West explained:
Id. at 71-72.
Bradshaw then moved for a continuance, stating that she had expected Daniels to hire private counsel and that she would not be ready for trial in December. Id. at 72. The court asked whether the case was simple, whether there would be a need for a suppression hearing and other questions designed to ascertain whether the case could be ready for trial by December 14. Id. at 73-74. After determining that the case was relatively simple and that there probably would not be need for a suppression hearing, the court denied the motion for a continuance. Id. at 74.
The court then asked Daniels if he was in the penitentiary for something else, and Daniels reported that he was in the penitentiary for a parole violation. Document #16 at 74. The judge asked whether a plea offer had been made and was reminded that an offer of 80 years had previously been made. Id. When the judge asked how many convictions Daniels had, Bradshaw responded, "His mother has the financial wherewithal to hire an attorney." Id. at 75. The judge relied, "I know, but that doesn't count. I can't count that. They've got one of the best lawyers in the district free, why would they go hire someone else?" Id. After some further questions about who would be called as witnesses, the court set the trial date for December 15. Id. at 75-76.
Leonard then moved for a severance, asking that his client, Jones, be tried separately from Daniels. The judge denied that motion. Id. at 76.
Daniels then addressed the court and the following colloquy occurred:
Id. at 77-78.
The court then turned to West and questioned him regarding what Daniels had said. Id. at 78. West stated that the understanding he had with Daniels' parents was that he would talk to Jason Akers, a personal friend, before agreeing to the representation. Id. He had not been able to get in touch with Akers until November 15, just before the proceedings began. Id. The judge responded:
Id. at 79-80. After more back and forth about Akers' relationship to the case and to West, the court stated that the case still seemed to be a simple one factually, and he was going to leave it on the trial docket for December. Id. at 82.
Later in the proceeding, Bradshaw pointed out that Daniels was in the Brickeys Unit
Id. at 84-85. Bradshaw responded that Daniels intended to point the finger at Jones, and said that that would create a problem if the case was tried together. Id. at 85. Jones then renewed his request for a severance, which the court denied. Id. at 85-86. The judge stated, "I'm not even going to go into the reason," but then explained, giving appropriate reasons why he would not grant a severance. Id. at 86. The judge then stated:
Id. at 86-87. That was the conclusion of the omnibus hearing.
Several points about this hearing should be made. According to Daniels, he and his parents had understood since October 14 that West would be representing him. West, however, stated that he never agreed to take the case, that he informed Daniels' parents from the beginning that he needed to speak to Akers before he would agree to take the case, and that he had been unable to reach Akers until November 15. Jones requested a severance, which was denied. Bradshaw stated that she could not be ready for trial by mid-December and moved for a continuance. Jones did not join in the motion for a continuance. The judge asked questions designed to determine whether the case could be prepared for trial by mid-December and concluded that it could be. The judge then asked about the next date that the case could be tried and learned that he did not have a January date available, so the next date would be sometime in February. At the conclusion of the omnibus hearing, the judge returned to the continuance issue and stated that because Jones had been in jail since his arrest in August, it would be wrong to postpone the trial until February. The judge indicated that he might have granted a continuance if an early January date had been available or if Jones were not detained ("[i]f I had an early January trial date, but mercy — or if this man were at liberty"), but stated that since Jones was detained and no date in early January was available, the case needed to be tried in December. He then continued the case one day, to December 16.
On December 10, 2010, six days before trial, Bradshaw filed a motion for continuance and for a mental evaluation on behalf of Daniels. Document #17 at 52-54.
Jones was not mentioned either in the motion or in the response. So as far as the record shows, Jones was still detained on December 10, 2010, and his case had not been severed from that of Daniels.
In pretrial proceedings on the morning of trial, Bradshaw renewed the motion for continuance.
Document #16 at 89-90. The situation with respect to Jones was not mentioned either by Bradshaw or the judge in this brief colloquy, unless the judge was referring to Jones when he said, "we've got to give priority to these cases where they are in jail." Otherwise, Jones was never mentioned during the pretrial proceedings. The record does not show that Jones had entered a guilty plea or that his case had been severed from Daniels' case. Nevertheless, the trial began with Daniels as the only defendant at trial.
During his opening statement, the prosecutor mentioned that Jones might testify. Id. at 105. In her opening statement, Bradshaw said:
Id. at 109-10.
The State did not call Jones in its case-in-chief. After the State rested, Bradshaw announced that she intended to call Jones to establish that Jones had pled guilty to possession of methamphetamine with intent to deliver, which would be evidence that Daniels did not possess it. Id. at 199. Jones' lawyer was present, and he reported that no plea agreement had been reached. Id. at 202. The court stated that he intended to let Bradshaw call Jones to testify as to what happened that day. Id. After further discussion, Jones' lawyer informed the court that he was advising Jones to invoke his fifth amendment privilege against self-incrimination. Id. at 207. Jones was never called to testify. Apart from the indication that Jones had given a statement on the day before trial, the record does not disclose why Jones was not tried with Daniels.
The Arkansas Court of Appeals addressed the continuance issue in five paragraphs, which are set out in their entirety:
Daniels v. State (Daniels I), 2012 Ark.App. 9 at 4-7, 2012 WL 11276 at 2-3.
After the Arkansas Court of Appeals affirmed on direct appeal, Daniels filed a motion for post-trial relief under Rule 37 of the Arkansas Rules of Criminal Procedure. In that motion, he argued, among other things, that the circuit judge violated his right to counsel by denying his requests for a continuance. The circuit judge denied the Rule 37 motion, and Daniels appealed. On the issue of whether the circuit judge violated Daniels' right to select counsel of his choice by denying his motions for continuance, the Arkansas Supreme Court stated:
Daniels v. State (Daniels II), 2013 Ark. 208 at 3, 2013 WL 2149901 at 4.
The sixth amendment states: "In all criminal prosecutions, the defendant shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. CONST. AMEND. 6; Powell v. Alabama, 287 U.S. 45, 66, 53 S.Ct. 55, 63, 77 L. Ed. 158 (1932). The United States Supreme Court has held "that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him." United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L. Ed. 2d 409 (2006); (citing Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1697, 100 L. Ed. 2d 140 (1988)). "[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds." Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624-25, 109 S.Ct. 2646, 2652, 105 L. Ed. 2d 528 (1989).
The right to counsel of one's choice, however, "is circumscribed in several important respects." Wheat, 486 U.S. at 159, 108 S. Ct. at 1697. A defendant's "right to choice of counsel must not obstruct orderly judicial procedure or deprive courts of their inherent power to control the administration of justice." United States v. Vallery 108 F.3d 155, 157 (8th Cir. 1997). "`[T]rial courts are vested with broad discretion in matters of continuances' for the purpose of substituting counsel." United States v. Cordy, 560 F.3d 808, 815 (8th Cir. 2009) (quoting United States v. Larson, 760 F.2d 852, 856 (8th Cir. 1985)). "While the Sixth Amendment affords some protection to the defendant's choice of counsel, when that choice comes into conflict with a trial judge's discretionary power to deny a continuance, the court will apply a balancing test to determine if the trial judge acted fairly and reasonably." United States v. Kikumura, 947 F.2d 72, 78 (3rd Cir. 1991).
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") embodies the principle that the sovereignty of state courts must be respected. AEDPA limits situations in which it is appropriate for a federal court to disturb the decision of a state court. Codified at 28 U.S.C. § 2254(d), AEDPA reads:
State prisoners must "show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error . . . beyond any possibility for fairminded disagreement." Burt v. Titlow, 134 S.Ct. 10, 16, 187 L. Ed. 2d 348 (2013) (internal quotations omitted). "If this standard is difficult to meet, that is because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 786, 178 L. Ed. 2d 624 (2011). Daniels raised the right to counsel of choice on direct appeal and the court of appeals addressed it on the merits, holding "that the trial judge did not abuse his discretion [in denying Daniels' motion for a continuance] and that Daniels failed to demonstrate prejudice amounting to a denial of justice." Daniels I, 2012 Ark.App. 9 at 6, 2012 WL 11276 at 3. When Daniels raised the issue in his Rule 37 proceedings, the Arkansas Supreme Court recognized that denial of a defendant's right to counsel of his choice is a structural error and then held that the doctrine of the law of the case barred reconsideration of whether the trial judge abused his discretion in denying Daniels' motion for a continuance. Daniels II, 2013 Ark. 208 at 6-7, 2013 WL 2149901 at 4 (stating that "the conclusion of the court of appeals on the matter is law-of-the-case for all subsequent proceedings."). "When a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court's decision does not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication." Cone v. Bell, 556 U.S. 449, 467, 129 S.Ct. 1769, 1781, 173 L. Ed. 2d 701 (2009). Therefore, the Court will "look through" the Arkansas Supreme Court's summary denial of Daniels' right to counsel of choice claim and evaluate the Arkansas Court of Appeals's reasoned decision holding that the circuit court judge did not abuse his discretion in denying Daniels' motion for a continuance. See Brumfield v. Cain, 135 S.Ct. 2269, 2276, 192 L. Ed. 2d 356 (2015).
Daniels maintains that the Arkansas Court of Appeals should not have affirmed the circuit court's decision to refuse a continuance because that refusal deprived him of his sixth amendment right to counsel of his choice. His argument runs into a double layer of deference. First, the Arkansas appellate courts, like most if not all appellate courts, review the denial of a continuance under an abuse of discretion standard.
Based on a thorough review of the record, the Court concludes that the Arkansas Court of Appeals did not unreasonably determine the facts in light of the evidence before it. The chronology recited by the Arkansas Court of Appeals is substantially accurate. The court of appeals' opinion failed to mention the December 10 motion for continuance but noted each occasion on which Daniels appeared in court and summarized the discussions relating to the continuance issue. The court of appeals accurately stated that Daniels never identified a new attorney whom he wished to retain, had attempted to retain, or who was willing to be retained in the month prior to trial; that Daniels was represented by a public defender whose qualifications were never questioned; that the trial judge made clear from the outset that no continuance would be granted on the basis of a change in attorneys; and that the public defender successfully defended Daniels on two of the four criminal charges tried that day. Although Daniels argues that the decision of the Arkansas Court of Appeals was based on an unreasonable determination of the facts in light of the evidence presented, see Document #6 at 5-7, he does not specify any portion of the determination of the facts by the court of appeals that was inaccurate. Therefore, the issue is whether the decision of the Arkansas Court of Appeals made a decision that was contrary or involved an unreasonable application of clearly established federal law when it held that the circuit court did not abuse its discretion by denying Daniels' motion for a continuance to gain more time to hire counsel to replace the public defender.
The Court must determine whether there is clearly established federal law governing the case. See Greene v. Fisher, 132 S.Ct. 38, 44, 181 L. Ed. 2d 336 (2011); Cary v. Musladin, 549 U.S. 70, 74-77, 127 S.Ct. 649, 653-54, 166 L. Ed. 2d 482 (2006). Law is "clearly established" when United States Supreme Court precedent "unambiguously provides a `controlling legal standard.'" Blackson v. Rapelje, 780 F.3d 340, 348 (6th Cir. 2015) (quoting Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 2858, 160 L. Ed. 2d 662 (2007)). "`[C]learly established' law should be construed narrowly." Id. (citing Wright v. Van Patten, 552 U.S. 120, 125, 128 S.Ct. 743, 746, 169 L. Ed. 2d 583 (2008); Musladin, 549 U.S. at 76, 127 S. Ct. at 654). However, "[t]hat the standard is stated in general terms does not mean the application was reasonable. AEDPA does not `require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied.'" Panetti, 551 U.S. at 953, 127 S. Ct. at 2858 (quoting Musladin, 549 U.S. at 81, 127 S. Ct. at 656) (Kennedy, J., concurring). "Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts `different from those of the case in which the principle was announced.'" Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1169, 155 L. Ed. 2d 144 (2003)). "The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner." Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Though circumscribed, the right to counsel of one's choice is clearly established; and it is likewise clearly established that this right may be violated by refusing a continuance.
The Court may look to the Eighth Circuit to determine whether it has already held that the particular issue is clearly established by Supreme Court precedent. Marshall v. Rodgers, 133 S.Ct. 1446, 1450-51, 185 L. Ed. 2d 540 (2013). In Middleton v. Roper, the Eighth Circuit considered a habeas petition in which the petitioner argued that he was denied his right to effective assistance of counsel and to due process of law when the state trial court refused to grant his request for a continuance of the trial because his attorneys did not have time to prepare. 498 F.3d 812, 815 (8th Cir. 2007). The petitioner argued that the state supreme court unreasonably applied clearly established law. Id. at 816. The Eighth Circuit cited Ungar v. Sarafite and Morris v. Slappy as the "[t]wo Supreme Court precedents [that] principally govern an accused's constitutional right to a continuance." Id.
In Ungar, the Court stated: "There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied." 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L. Ed. 2d 921 (1964). The Court held that the trial court's denial of a motion for continuance on the day of the scheduled contempt hearing did not deprive the defendant of due process, even though the defendant's attorney told the court that he was contacted only three days earlier and was unfamiliar with the case. Id. at 590, 84 S.Ct. 850.
Then, in Slappy, the Court reiterated that "[t]rial judges necessarily require a great deal of latitude in scheduling trials." 461 U.S. at 11, 193 S. Ct. at 1616. "However, a rigid insistence on expedition in the face of a justifiable request for delay can amount to a constitutional violation." United States v. Rankin, 779 F.2d 956, 960 (3rd Cir. 1986).
Next, the Court must determine whether the Arkansas Court of Appeals's decision was contrary to, or involved an unreasonable application of Ungar and Slappy. "Contrary to" and "unreasonable application of" have distinct meanings. Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1519, 146 L. Ed. 2d 389 (2000) (O'Connor, J., concurring). The Eighth Circuit explained:
Armstrong v. Hobbs, 698 F.3d 1063, 1066 (8th Cir. 2012). Daniels does not contend that the Arkansas Court of Appeals's decision was contrary to clearly established federal law. Rather, he contends that the court of appeals unreasonably applied clearly established federal law. See Document #1 at 19. The Eighth Circuit characterized the applicable clearly established federal law-Unger and Slappy-as decisions that "state the governing constitutional rule at a high level of generality. In applying the deferential standard of AEDPA, `[t]he more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Middleton, 498 F.3d at 817 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 2143, 158 L. Ed. 2d 938 (2004)).
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Williams, 529 U.S. at 411, 120 S. Ct. at 1522. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410, 120 S. Ct. at 1522. The appellate court's decision stands so long as fairminded jurists could disagree as to whether it was correct and it is the state prisoner's burden to show that fairminded jurists could not disagree. Harrington, 562 U.S. at 102, 131 S. Ct. at 786. This standard is difficult to meet, but not impossible. See id.
The State of Arkansas concedes that a showing of prejudice
There are no "mechanical tests" for deciding when the denial of a continuance is arbitrary or unreasoning. Ungar, 376 U.S. at 589, 84 S. Ct. at 850. As stated previously, "[t]he answer must be found in the circumstances present in every case, particularly the reasons presented to the trial judge at the time the request is denied" but also the reasons given by the trial judge for denying the request. Id.; United States v. Sellers, 645 F.3d 830, 835 (7th Cir. 2011). "Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and the burden counsels against continuances except for compelling reasons." Slappy, 461 U.S. at 12, 103 S. Ct. at 1616.
The Arkansas Court of Appeals failed to cite any federal law, let alone the controlling precedent, Ungar and Slappy, but "a state court need not cite or even be aware of [Supreme Court] cases under § 2254(d)." Harrington, 562 U.S. at 98, 131 S. Ct. at 784. "Under § 2254(d), a habeas court must determine what arguments or theories supported . . . the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holdings in a prior decision of this Court." Id. at 102, 131 S. Ct. at 786.
The record before the court of appeals shows that the most important reason given by the trial judge for denying Daniels' motion for continuance was that a co-defendant, Jones, was incarcerated and could not make bond. As explained above, at the first appearance of the defendants in circuit court, the judge began with Jones, determined that Jones probably could not make bond, decided based on Jones' situation to fast-track the case and set it for the week of December 14, all before turning to Daniels and inquiring about Daniels' situation. Document #16 at 58-63. Daniels' first request for a continuance was made at the November 15 hearing, and again the trial judge emphasized the fact that Jones was incarcerated and could not make bond. ("This other gentleman . . . has been in jail since August" and "if this man were at liberty, that'd be one thing"). Id. at 86-87. Notably, Jones never joined in Daniels' requests for a continuance. As far as the record shows, on December 10 when Bradshaw renewed Daniels' motion for continuance by written motion, Jones was still a co-defendant who was expected to be tried on December 16, and he continued to be a co-defendant expecting to go to trial until the morning that the trial began. Although on December 16 Jones did not actually go to trial, when Daniels' motion for continuance was renewed that morning, prospective jurors and all of the witnesses had already assembled for trial. Cf. Slappy, 461 U.S. at 12, 103 S. Ct. at 1616.
Another important consideration cited by the trial judge was control of his docket. He warned Daniels on October 12, when Daniels first raised the issue of hiring counsel to replace the public defender, that his practice was not to grant a continuance when a defendant hired a new lawyer close to trial. Document #16 at 68. He reiterated that concern at the November 15 hearing, when he noted that defendants often switch lawyers at the last minute and want a continuance. Id. at 72.
The Arkansas Court of Appeals noted both of these factors: "the trial setting was important to a co-defendant in jail awaiting trial,"
The court of appeals also noted that lack of diligence alone may be sufficient to deny a request for a continuance under Arkansas law. Daniels I, 2012 Ark.App. 9 at 4, 2012 WL 11276 at 2. The Eighth Circuit lists "the diligence of the party requesting the continuance" as one of the five factors a court should balance in ruling on a motion for a continuance, but notes that "no single factor is dispositive." United States v. Pruett, 788 F.2d 1395, 1396 (8th Cir. 1986). Ultimately, the court of appeals did not rely on lack of diligence alone, but considered it along with other factors. Daniels was arrested on August 26, 2010, and appeared in district court on August 27, 2010, where the district court declared him indigent and appointed Bradshaw to represent him. Document #16 at 9. When Daniels made his first appearance in circuit court on October 12, 2010, nearly seven weeks had passed since the date of his arrest, and neither he nor his family had made any effort (so far as the record shows) to hire a lawyer to represent him. In the face of this lack of diligence, the trial judge was justifiably concerned that delay in hiring new counsel would result in a request for a continuance.
On November 15, when Daniels appeared for the omnibus hearing, after for a discussion between the judge, West, and Bradshaw, and after the discussion of Jones' motion for severance, Daniels requested more time to obtain a lawyer. He explained that his parents hired West on October 14. The trial judge responded, "I'm trying to hear you. They contacted him on October 14?" Document #16 at 77-78. It is apparent from the record that the trial judge was listening to Daniels and took his concern seriously. He turned to West and questioned West extensively. Id. at 78-82. While Daniels said that he and his family believed that as of October 14 West had agreed to represent him, West insisted that he had informed Daniels' parents from the beginning that he needed to speak to Akers before agreeing to accept the case. Id. at 78. The Arkansas courts were entitled to believe West.
Furthermore, the court of appeals correctly noted that in the month before trial Daniels did not identify an attorney who would represent him, which is a valid consideration.
In his habeas petition, Daniels criticizes a number of comments made by the trial judge, and he criticizes the court of appeals for failing to mention these comments:
Document #1 at 27. Daniels did not mention these comments by the trial judge in his brief on appeal, Document #5-4, so it is not clear that he is entitled to raise them in federal court as a basis for concluding that the decision of the court of appeals was an unreasonable application of clearly established law.
By attributing to himself the judge's concerns about defendants remaining in custody pending trial, Daniels inaccurately characterizes the trial judge's comments about fast-tracking the case. Document #1 at 21. The trial judge repeatedly commented that he would not continue the case because Jones was in custody and could not make bail. As to Daniels, when informed that Daniels had a parole hold, the trial judge commented that "[i]t doesn't matter then," apparently recognizing that the urgency in getting a trial date for Jones did not apply to Daniels.
It is true that, after inquiring of the lawyers, the trial judge concluded that the case was simple and justified his decision not to continue the case in part on that basis. Document #16 at 82. It should be noted, however, that at the omnibus hearing Bradshaw moved for a continuance on the ground that she could not be prepared for trial in December, and the judge first asked whether the case was a simple one in response to her motion. Id. at 72-73. Whether the case was simple or complex was relevant to the trial judge's consideration of Bradshaw's request for a continuance to give her more time to prepare. See United States v. Larson, 760 F.2d 852, 857 (8th Cir. 1985). Whether the case was simple or complex also was relevant to the issue of whether it was possible for Daniels to retain counsel who could prepare the case for trial in 30 days. While some cases are so complex that no competent lawyer would be willing to try them on 30 days' notice, some cases are sufficiently simple that they can be prepared for trial in that amount of time. Daniels says that no lawyer would have accepted his case knowing he had to be prepared for trial in 30 days, but that assertion is not based on any evidence in the record before the court of appeals. On November 15, Bradshaw said that she had not begun trial preparation because she thought Daniels had hired private counsel; yet, she obviously was prepared for trial 30 days later. West stated that he had not decided to refuse the case until the morning of November 15 when he finally spoke to Akers; otherwise, he would have accepted Daniels request to represent him, knowing that the case was set for trial in 30 days.
In the context of the discussion of whether the case was simple, the judge commented regarding the drug charges, "By the way the State has presented it . . . [i]t could be a case of how much, not so much of the guilt issue." Id. at 83-84. Daniels asserts that these comments show that the judge had predetermined his guilt, but that assertion ignores the careful phrasing by the judge — "By the way the State has presented it" and it "could be a case of how much." The judge did not prematurely proclaim Daniels to be guilty; rather, while assessing the complexity of the case, he commented on what "could be" based on "the way the State has presented it."
Although the trial judge commented that Bradshaw was paid by the State and was a good lawyer, he also pointed out that she was not fighting to stay on the case and explicitly acknowledged Daniels' right to select and retain counsel. Id. at 68. The judge never said that because Bradshaw was a good lawyer Daniels had no right to select and retain counsel of his choice.
Daniels points out that the trial judge made it clear from the outset that he would not grant a continuance in order to accommodate a new attorney. Document #24 at 4. It is true that adhering to a rigid rule that an attorney must "take the case as he finds it" is arbitrary if it is unaccompanied by other reasoned explanations. Sellers, 645 F.3d at 835 ("[A] myopic insistence on proceeding with a scheduled trial date in the fact of a valid request for a continuance is arbitrary and unreasonable"). But in Daniels case, the conversations and circumstances that arose after the trial judge's initial warning that he would not grant a continuance reveal that the trial judge balanced the right to choice of counsel against two legitimate considerations-the inconvenience to Jones and the administration of the docket. It is reasonable to conclude that the trial judge's insistence on proceeding with the scheduled trial date was not myopic; rather, the trial judge rested his decision to deny a continuance on the importance of the trial setting to Jones, who was in jail waiting to be tried, and on the need to maintain control of his docket — not, as Daniels argues, on the simplicity of the case, the strength of the evidence, or Bradshaw's competence.
Some of the trial judge's comments may have been ill considered. Whether they were is not for this Court to decide. Even if they were, they do not show that the Arkansas Court of Appeals unreasonably applied clearly established federal law when it affirmed the trial court's denial of Daniels' motion for a continuance.
For the reasons stated, the petition of James E. Daniels, Jr., for writ of habeas corpus is DENIED. Document #1. Daniels' motion for bond is DENIED. Document #25.
Daniels is hereby granted a certificate of appealability on the issue of whether his sixth amendment right to counsel was violated by the trial court's denial of his motion for a continuance.
IT IS SO ORDERED.
