Owens v. Office Arapahoe County 18th Judicial District Attorney's et al

Filing 15

ORDER granting 13 Motion to Consolidate Cases. ORDERED that the Clerk of Court shall docket this Order in Civil Action No. 12-cv-01994. ORDERED that as of the date of this Order, all pleadings and other filings shall be filed in this case only, using the caption appearing in this Order by Chief Judge Wiley Y. Daniel on 08/23/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 12-cv-01993-WYD-CBS
(consolidated with 12-cv-01994-WYD-CBS)
SIR MARIO OWENS,
Plaintiff,
v.
OFFICE OF THE DISTRICT ATTORNEY FOR THE EIGHTEENTH JUDICIAL
DISTRICT;
CAROL CHAMBERS, District Attorney;
ANN TOMSIC;
EMILY WARREN;
JOHN HOWER, Deputy District Attorneys;
OFFICE OF THE COLORADO ATTORNEY GENERAL;
JOHN SUTHERS, Attorney General;
MATTHEW DURKIN;
DANIEL EDWARDS, Assistant Attorneys General and Special Deputy District Attorneys;
JAMES A. CASTLE;
JENNIFER L. GEDDE;
JONATHAN REPPUCCI; and
C. KEITH POPE, Office of Alternate Defense Counsel-appointed contract attorneys,
Defendants.

ORDER

THIS MATTER is before the Court on Plaintiff’s Unopposed Motions to
Consolidate Cases filed in this case and the related case of In Re People v. Sir Mario
Owens, Civil Action No. 12-cv-01994-WYD-CBS that was transferred to me by Judge
Krieger. The motions seek to consolidate the two cases.
Fed. R. Civ. P.42(a) provides that “[w]hen actions involving a common question
of law or fact are pending before the court, it may order a joint hearing or trial of any or

all the matters in issue in the action; it may order all the actions consolidated; and it may
make such orders concerning proceedings therein as may tend to avoid unnecessary
costs or delay.” Consolidation is within the discretion of the trial court. Gillette Motor
Transport v. Northern Oklahoma Butane Co., 179 F.2d 711, 712 (10th Cir. 1950).
Upon review of the files, I find that the two cases involve common questions of
law and fact regarding challenges to the constitutionality of the so-called unitary review
statute, or URS, insofar as the statute (a) requires that postconviction counsel assert in
postconviction proceedings all claims for relief the defendant may have, including
ineffective assistance of counsel claims, and that any unasserted claim is waived; (b)
mandates that the assertion of any ineffective assistance of counsel claim automatically
waives any privilege, immunity or confidence (“privileged information”) held by the
defendant or his trial counsel relating to the claim, and requires production of such
privileged information to the government; and (c) mandates such waiver notwithstanding
that disclosure of the privileged information to the government would do serious harm to
the direct appeal. Both cases were filed because post-conviction counsel for Plaintiff
have obtained or are about to obtain privileged information from trial counsel under the
URS and intend to disclose portions of that privileged information to the government.
Direct appeal counsel in this case and trial counsel in 12-cv-01994 object to the
proposed disclosure of privileged information, and seek a determination that to the
extent the URS requires disclosure of privileged information without Mr. Owens’s
informed consent, it is unconstitutional. Under these circumstances, I find that the two
cases should be consolidated. It is therefore
-2-

ORDERED that Plaintiff’s Unopposed Motions to Consolidate Cases filed in this
case on August 13, 2011 (ECF No. 13) and in 12-cv-01994-WYD-CBS on August 14,
2012 (ECF No. 18) are GRANTED. In Re Sir Mario Owens, Civil Action No. 12-cv01994-WYD, shall be consolidated with this case for all further purposes. It is
FURTHER ORDERED that the Clerk of Court shall docket this Order in Civil
Action No. 12-cv-01994. Finally, it is
ORDERED that as of the date of this Order, all pleadings and other filings shall
be filed in this case only, using the caption appearing in this Order.
Dated: August 23, 2012
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

-3-