Block v. Hobbs

Filing 20

ORDER ADOPTING 17 Report and Recommendations with the listed additions; judgment will be entered dismissing Block's petition for writ of habeas corpus. Signed by Chief Judge J. Leon Holmes on 6/26/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
WILLIOUS E. BLOCK,
ADC #119582
v.

PETITIONER

No. 5:11CV00243 JLH-JTK

RAY HOBBS, Director,
Arkansas Department of Correction

RESPONDENT
ORDER

The Court has received the Proposed Findings and Recommendations from United States
Magistrate Judge Jerome T. Kearney. After a careful review of the findings and recommendations
and the timely objections thereto, as well as a de novo review of the record, the Court concludes that
the findings and recommendations should be approved and adopted as the Court’s findings, with the
following additions.
Block appears to raise two related issues in his petition. One issue relates to his claim that
his right to due process and his right to counsel were violated when his first lawyer, Danny Rogers,
withdrew and was replaced by a second lawyer, Billy Moritz, without an order from the court
approving the substitution. The second issue is Block’s claim that the delay in bringing him to trial
violated his constitutional right to a speedy trial. These two arguments are interrelated inasmuch as
Block attributes much of the delay in bringing him to trial to the substitution of counsel. The
proposed findings and recommendations by Magistrate Judge Kearney addressed the speedy trial
issue but did not address the substitution of counsel issue as a separate claim. The Court adopts
Magistrate Judge Kearney’s proposed findings and recommendations with respect to the speedy trial
issue and now addresses Block’s separate claim that his rights were violated by the substitution of
counsel.

With respect to the issue of substitution of counsel as a separate claim, the Arkansas Court
of Appeals addressed that issue in affirming Block’s conviction on direct appeal. There, the court
first explained:
A defendant’s right to counsel of choice is grounded in the Sixth Amendment to the
United States Constitution, and also guaranteed by article 2, section 10 of the
Arkansas Constitution. Wormley v. State, 2010 Ark. 474, --- S.W.3d ---. While
constitutionally guaranteed, the right to counsel of one’s own choice is not absolute
and may not be used to frustrate the inherent power of the court to command an
orderly, efficient, and effective administration of justice. Bullock v. State, 353 Ark.
577, 111 S.W.3d 380 (2003). Also, the Sixth Amendment does not guarantee that
a criminal defendant will be represented by the lawyer whom he prefers. See Morris
v. Slappy, 461 U.S. 1, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
Block v. State, 2010 Ark. App. 603,--- S.W.3d ---, 2010 WL 3565755, at *6 (Sept. 15, 2010). The
Court of Appeals also stated:
Appellant’s argument regarding the appointment of Mr. Moritz is not supported in the
record. The record of the first judicial appearance showed that the “public defender’s
office” was appointed and that such was explained to appellant. This was hand
written in a blank space on a form document that appellant signed, attesting to his
understanding that the public defender’s office was appointed. On February 19, 2009,
the docket entry reflected that the trial judge released the public defender’s office
pursuant to appellant’s request to act pro se. On March 13, 2009, the docket sheet
stated that appellant was present and he declined the attorney that had been
appointed. Additionally, the entry showed “Mr. Moritz ordered to be standby to
answer any Qs.” On March 18, 2009, the entry showed that appellant was granted
counsel at his request. Specifically, the record stated that the public defender
commission was to appoint counsel for appellant. At the actual hearing, the trial
court carefully explained to appellant that he was not appointing him a specific
attorney, but rather was going to allow the public defender commission to decide who
would represent him. Appellant acknowledged this several times in open court.
Therefore, appellant’s argument that Mr. Moritz was never his appointed attorney has
no merit.
Id. at *7-8. The decision of the Arkansas Court of Appeals on this issue was not contrary to nor an
unreasonable application of clearly established federal law. In addition to the facts noted by the Court
of Appeals in its opinion, the Court would point out that the public defender who initially represented
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Block, Danny Rogers, stated in his notice of substitution of counsel that he had received
correspondence from Block that put him in a position of having a conflict, so it was necessary for him
to withdraw and to reassign the case to Billy Moritz. Block does not dispute Rogers’s statements
that he received correspondence from Block that created a conflict of interest and necessitated his
withdrawal. Hence, Block has presented nothing that would tend to show that if the issue had been
presented to the judge for the judge to decide whether to allow Rogers to withdraw, the judge would
have denied Rogers’s request to withdraw. Apart from the alleged delay in the trial date, Block
presents nothing to show that the substitution of counsel prejudiced him in any way. Indeed, as the
Court of Appeals noted, he chose to represent himself for a period of time and then requested
appointment of counsel. When Block requested appointment of counsel, the court again appointed
the public defender’s office, and Block was represented by a third lawyer. Nothing in the record
shows that any of Block’s constitutional rights were violated by the manner in which these issues
were handled nor the conduct of any of the lawyers.
Accordingly, judgment will be entered dismissing Willious E. Block’s petition for writ of
habeas corpus. Document #2.
IT IS SO ORDERED this 26th day of June, 2012.

___________________________________
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE

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