Corbett v. USA
ORDER finding that petitioner has impliedly waived the attorney-client privilege with regard to his communications with Attorney Raabe regarding his right to a jury trial, right to testify on his own behalf, and waiver of those rights. See attached Order for details. Respondent will supplement the record by filing Attorney Raabe's affidavit on or before March 1, 2018. So ordered. Signed by Judge Robert N. Chatigny on 2/12/18.(Jones, P.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
UNITED STATES OF AMERICA,
Case No. 3:15-CV-1461 (RNC)
Petitioner Larry Corbett, a federal inmate, brings this
action pro se under 28 U.S.C. § 2255. Corbett was convicted after
a bench trial in which he did not testify. He claims that his
trial counsel was ineffective in advising him about his right to
a jury trial and his right to testify.
The Court ordered the government to supplement the record
with an affidavit from Corbett’s lead counsel, Craig A. Raabe.
See Order of Jan. 10, 2018 (ECF No. 15); see also Chang v. United
States, 250 F.3d 79, 85-86 (2d Cir. 2001) (no evidentiary hearing
necessary to decide § 2255 motion based on ineffective assistance
claim where record supplemented by trial counsel’s affidavit).
Attorney Raabe has submitted a letter raising concerns about his
obligation to maintain attorney-client privilege. The letter
states, “in the absence of a waiver from Mr. Corbett or a
judicial finding of a waiver, I request that if the Court
requires information from me, the information be acquired in a
testimonial setting wherein the Court can determine on a
question-by-question basis whether I can answer the Government’s
questions consistent with the Court’s view of Mr. Corbett’s
I find that Corbett has impliedly waived the attorney-client
privilege with regard to communications with Attorney Raabe
regarding his right to a jury trial, his right to testify on his
own behalf, and his waiver of these rights. “The attorney-client
privilege protects confidential communications between client and
counsel made for the purpose of obtaining or providing legal
assistance.” In re County of Erie, 473 F.3d 413, 418 (2d Cir.
2007). A client impliedly waives the attorney-client privilege
when he “chooses to place privileged communications directly in
issue.” United States v. Pinson, 584 F.3d 972, 977 (10th Cir.
2009) (citing 1 McCormick On Evid. § 93 (6th ed. 2006)). “When a
habeas petitioner claims that he received ineffective assistance
of counsel, he puts communications between himself and his
attorney directly in issue, and thus by implication waives the
attorney-client privilege with respect to those communications.”
Id. (discussing “unanimous federal authority,” including 5th,
6th, 8th, 9th, 11th Circuit precedents); accord Giordano v.
United States, No. 3:11CV9 MRK, 2011 WL 1831578, at *1 (D. Conn.
Mar. 17, 2011; see also Strickland v. Washington, 466 U.S. 668,
692 (1984) (“[I]nquiry into counsel’s conversations with the
defendant may be critical to a proper assessment of counsel’s . .
. litigation decisions.”).
Corbett’s waiver is not unlimited. “[W]hen a prisoner files
a claim alleging that his or her former attorney provided
ineffective assistance, he or she implicitly waives the
attorney-client privilege only as to confidential information
that is needed to defend against the prisoner's specific claims.”
Giordano, 2011 WL 1831578, at *3. Here, Corbett has waived the
privilege as to communications needed to defend against his
claims related to his decision to waive his right to a jury and
proceed with a bench trial and his decision not to testify.
Given that Corbett has waived the attorney-client privilege
with respect to these communications, an in-court interview is
not necessary. See id. (“It would be highly impractical to
require federal district court judges in each an every [habeas
case] to directly supervise every interaction between the
Government and the attorney who provided ineffective assistance
to his former client.”). Judge Kravitz’s instructions in a
similar case apply here as well:
“[I]t will largely be left up to [Attorney Raabe] and the
Government to determine whether particular information has
or has not been waived. In this Court's experience,
attorneys are for the most part very familiar with the
process of determining whether specific materials are
protected during the course of discovery, and the process of
determining whether the privilege has been waived with
regard to specific documents and communications between
[Corbett] and his former counsel should not be much more
difficult than that ordinary process. Here, all counsel are
very experienced. The Court cautions [Attorney Raabe] that
if he has any question at all about the scope of the
Government's questioning, he should return to the Court so
that it may resolve that issue.
If disputes arise regarding whether or not specific
information is or is not protected as a result of
[Corbett]'s implicit waiver of the attorney-client
privilege, the Court will resolve such disputes on the
telephone with the parties and with [Attorney Raabe]. The
parties are also free to jointly propose a protective order
to ensure that any potentially privileged materials that may
be disclosed between the parties during discovery are not
publicly revealed unless they are eventually filed with the
Accordingly, the government will supplement the record by
filing Attorney Raabe’s affidavit on or before March 1, 2018.
So ordered this 12th day of February 2018.
Robert N. Chatigny
United States District Judge
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