Sampley v. Attorney General of North Carolina

• Decision Date: 10 March 1986
• Docket Number: No. 84-6397,84-6397
• Citation: 786 F.2d 610
• Parties: Ted Lane SAMPLEY, Appellant, v. ATTORNEY GENERAL OF NORTH CAROLINA, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 610

786 F.2d 610

Ted Lane SAMPLEY, Appellant, v. ATTORNEY GENERAL OF NORTH CAROLINA, Appellee.

No. 84-6397.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 8, 1985.

Decided March 10, 1986.

Bruce H. Jackson, Jr. (W.G. Smith, Wilmington, N.C., on brief), for appellant.

Barry S. McNeill, Asst. Atty. Gen. (Lacy H. Thornburg, Atty. Gen. of North Carolina, Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and WILLIAMS, United States District Judge for the Eastern District of Virginia, sitting by designation.

JAMES DICKSON PHILLIPS, Circuit Judge:

Sampley appeals from the dismissal by the district court of his petition for habeas corpus in which he claimed that a state court's refusal to grant a continuance of his trial deprived him of his sixth amendment right to the effective assistance of counsel. We conclude that the district court properly determined that Sampley's sixth amendment right was not violated, and we therefore affirm.

I

In June 1981, Sampley had an altercation with several police officers in the New Hanover County, North Carolina, courthouse following dismissal of a criminal case in which Sampley was a prosecution witness. As a result, he was arrested and charged under state law with simple assault, assault on a police officer, and resisting arrest. Represented by privately-retained counsel, Sampley was tried on those charges in October 1981. The trial ended in a mistrial because of a hung jury.

The case was then calendared for retrial in November 1981, but upon the state's motion it was continued until December 1981, on the basis that Sampley's retained counsel was involved in a murder trial. The case was then again twice continued on the state's motion, first until January 1982, then until February 1982, on the basis that an essential witness for the state was unavailable for both the December and January terms.

Following the continuance to the February 1982 term, Sampley published a paid newspaper advertisement criticizing the state prosecutor for delaying his retrial. Sampley's retained counsel had specifically advised him not to do this while the retrial was pending.

As a result of Sampley's refusal to follow his advice, his counsel sought and was allowed by the court to withdraw as counsel in early February 1982.

In consequence of counsel's withdrawal, the state moved for yet another continuance of two weeks duration to mid-February, on the stated basis of Sampley's need "to hire new counsel." This was allowed. Once again, when the mid-February trial date approached, both Sampley and the state moved separately for yet another continuance, on the stated basis in both motions that Sampley did not yet have counsel. These motions were allowed in mid-February with trial being then set for March 1, 1982, some two weeks away.

On the morning of March 1, 1982, Sampley appeared in court without counsel. Upon being asked by the trial judge if he was represented, he answered that he was not. Responding to further inquiry, he advised the court that he had engaged an attorney "almost two weeks ago," but that the attorney could not represent him until after March 1, when, by an "odd occurrence" the attorney's public employment with a legal service office would end. No motion for continuance from the March 1, trial date had been made by either Sampley or the new counsel until Sampley appeared in court on March 1.

Following Sampley's representation of the need for a continuance, the trial judge asked the state prosecutor if the state planned to try Sampley's case "this week." The prosecutor answered that he planned to try it as the first jury trial.

Thereupon the trial judge told Sampley that he saw nothing in the record to justify the requested continuance; that the case was set for trial; and that if Sampley wanted an attorney to represent him he should "get one quickly." To this Sampley responded that he would represent himself in view of the fact that counsel he had chosen was "unavailable right now." When the judge then suggested that there were "many, many more" attorneys in the county, Sampley asserted that because they considered his case to be "of a political nature" all the lawyers he had approached except the one he had employed wanted a higher fee than he could afford; that he had already spent "about seven thousand dollars on this."

Following reconfirmation by the prosecutor that he intended to call the case for trial at 2:00 p.m. that day, the trial judge told Sampley that it would be tried at that time, observing again that there were many lawyers near at hand who might represent him.

At 2:00 p.m., the attorney who Sampley said he had employed appeared "specially" with Sampley and moved for a continuance. He verified that Sampley had employed him earlier, that his freedom to engage in private practice had just commenced on March 1, that he was prepared to represent Sampley if given adequate time to prepare, but that he could not provide representation if the case were called for trial on March 1. The court denied counsel's motion, whereupon the case was called for trial and commenced with Sampley appearing pro se.

At the end of the day's proceedings, Sampley's putative counsel again appeared "specially" and formally renewed his motion for a continuance. The trial judge again denied the motion, on the basis of findings of fact entered into the record. After reciting the basic chronology of proceedings above outlined the judge found that to grant a continuance would "create a hardship and inconvenience for the State of North Carolina" in view of the fact that the witnesses who were appearing for the state (and who had presumably made their arrangements for appearance) included another state trial court judge, a court reporter presently working in another county, a local magistrate, and the police officers who had observed Sampley's conduct on which the charges were based. The court further concluded that "the request for a continuance is ... untimely," and that "more than ample time has been afforded to this defendant (Sampley)."

The trial then proceeded with Sampley conducting his own defense throughout. He was found guilty by the jury on all three charges, and was given an active sentence of 60-days imprisonment and placed on probation for five years. At his sentencing hearing, which occurred at the end of the March 1 trial week, he was represented by privately retained counsel.

Following exhaustion of available state remedies, Sampley filed this petition for habeas corpus in federal district court, claiming a denial of his sixth amendment right to the assistance of counsel by virtue of the state court's refusal to grant a continuance of his trial. The district court summarily denied the petition on a consideration of the habeas record, including relevant portions of the state court criminal proceedings.

This appeal followed.

II

The sixth amendment, while not providing an absolute right, guarantees a defendant a fair opportunity to secure counsel of his own choice to represent him at trial on criminal charges. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed.158 (1932). Among the ways this opportunity, hence the right, can be denied is by a court's refusal to continue a scheduled trial when the defendant appears on the scheduled date without counsel, or is forced to trial with unprepared counsel or with counsel not of his choice. But the right, as indicated, is only a qualified one, the opportunity guaranteed is only a "fair" one.

Obviously a defendant has no constitutional right to dictate the time, if ever, at which he is willing to be tried by simply showing up without counsel, or with allegedly unsatisfactory counsel, whenever his case is called for trial, see Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), or by objecting that counsel then retained or assigned is not presently "counsel of his choice," see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). ¹ The limit of the right is necessarily found in the countervailing state interest against which the sixth amendment right provides explicit protection: the interest in proceeding with prosecutions on an orderly and expeditious basis, taking into account the practical difficulties of "assembling the witnesses, lawyers, and jurors at the same place at the same time," Morris v. Slappy, 461 U.S. at 11, 103 S.Ct. at 1616.

When a defendant does request a continuance on the basis, as here, that he does not have counsel to represent him, the court requested to grant the continuance must therefore make a judgment whether this results from the lack of a fair opportunity to secure counsel or rather from the defendant's unjustifiable failure to avail himself of an opportunity fairly given. In making this judgment, the court is necessarily entitled to take into account the countervailing state interest in proceeding on schedule.

Given the inevitably fact-specific conflicts between individual rights and state interests posed by such requests for continuances, trial courts must be accorded wide discretion in deciding whether to grant continuances, notwithstanding that constitutional rights may be implicated. Morris v. Slappy, 461 U.S. at 11, 103 S.Ct. at 1616; Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849. Indeed, the constitutional right is probably best stated as a limit on trial court discretion: that discretion only exceeds its constitutional bounds when it is exercised to deny a continuance on the basis of an "unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay.' " Morris v. Slappy, 461 U.S. at 11-12, 103 S.Ct. at 1616-17 (quoting Ungar v. Sarafite, 376 U.S. at 589, 84 S.Ct. at 849). Because a request for delay cannot be considered "justifiable" if it proceeds from a "transparent ploy for delay," Morris v. Slappy,...