Handlon v. United States of America

Filing 24

OPINION AND ORDER denying without prejudice 15 Motion to Compel former Defense Counsel to Disclose Substance of Communication and to Provide Documents and Affidavits; granting 18 Motion to adopt and counsel's opposition is duly noted; denying 19 renewed request to be released from custody; denying as moot 20 Motion for Extension of Time to File Response. The government shall file to the 1 Motion Under 2255 within 30 days of this Opinion and Order. Signed by Judge John E. Steele on 5/1/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
QUINTON PAUL HANDLON,
Petitioner,
v.

Case No: 2:16-cv-813-FtM-29CM
Case No. 2:13-cr-145-FTM-29CM

UNITED STATES OF AMERICA,
Respondent.

OPINION AND ORDER
This matter comes before the Court on the government's Motion
Requesting an Order Requiring Former Defense Counsel to Disclose
Substance of Communication and to Provide Documents and Affidavits
(Doc. #15) filed on January 26, 2017.

Petitioner’s former trial

counsel from the Federal Public Defender’s Office filed Responses
in Opposition (Docs. ## 16-17), and former appellate counsel, who
also represented petitioner at sentencing, filed a Motion to Adopt
(Doc. #18) the Response (Doc. #16) on February 9, 2017.

The Motion

to Adopt will be granted.
A. Petitioner’s § 2255 Motion
On November 4, 2016, petitioner filed his Motion Under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence By a Person
in Federal Custody (Doc. #1).

Petitioner raises four grounds for

relief: Ground One asserts an illegal search and seizure, arguing
that law enforcement had photographs of messages from two Facebook
accounts but pursued a Gmail account where none of the photographs

were found in the nearly 300 emails collected.

Petitioner argues

that no effort was made to trace the IP address for the origin of
the emails.

Petitioner further argues that he tried to raise the

issue earlier but his trial and appellate attorneys refused to do
so.

Ground Two argues that there was a bad faith destruction of

relevant evidence because the real Gmail user deleted the emails
after finding out that law enforcement would read them, and law
enforcement failed to collect the IP address to prove who really
sent the emails, claiming they only made printed copies of the
emails

and

not

the

page

providing

the

sender’s

information.

Petitioner argues that he tried to raise this earlier but his trial
attorneys refused to raise the issue.

Ground Three asserts that

trial counsel and appellate counsel were ineffective because they
refused

to

Petitioner

raise
asserts

certain
that

issues,

his

or

attorneys

“check

alibis,

effectively

etc.”

aided

the

government, and were in effect parties to a conspiracy to commit
fraud upon the Court.

Petitioner asserts that he has vital

evidence that was kept out of trial and withheld from the jury
which was exculpatory.
arguing

that

there

Ground Four asserts a Brady violation,

must

have

been

attachments that were not turned.

additional

emails

with

Petitioner argues that there

are at least 2 emails that were withheld by the government that
would have shown that he was innocent and not the author of the
other emails.

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Attached

to

petitioner’s

habeas

petition

is

petitioner’s

unsworn Affidavit (Doc. #1-1) stating his trial counsel were
involved in covering up a conspiracy by law enforcement officers,
and providing multiple examples of alleged ineffective assistance
of counsel.
ineffective

Petitioner maintains that but for the fraud and the
assistance

of

counsel,

he

could

have

proven

his

innocence.
B. The Government’s Motion to Compel
The government seeks to compel former counsel to “disclose
communications with Handlon and provide documents and affidavits
regarding their previous representation of Handlon.”
p. 1.)

(Doc. #15,

Specifically, the government seeks “any records (including

correspondence) relating to Handlon’s claims”, and affidavits from
former

counsel

“discussing

their

communications,

efforts,

and

strategies concerning the claims Handlon raises in his motion.”
(Id., p. 7.)

The government argues that a meaningful response

cannot be provided without former counsel’s “input regarding their
communications, efforts, and strategies”.

(Id., p. 4.)

Former

counsel have invoked the attorney-client privilege and oppose any
such disclosure.
The attorney-client privilege is not “an inviolable seal upon
the attorney's lips.

It may be waived by the client; and where,

as here, the client alleges a breach of duty to him by the attorney,
we have not the slightest scruple about deciding that he thereby
waives the privilege as to all communications relevant to that
- 3 -

issue.”

Laughner v. United States, 373 F.2d 326, 327 (5th Cir.

1967). 1

A party “waives its attorney-client privilege when it

injects into this litigation an issue that requires testimony from
its attorneys or testimony concerning the reasonableness of its
attorneys' conduct.”

GAB Bus. Servs., Inc. v. Syndicate, 627, 809

F.2d 755, 762 (11th Cir. 1987).

A party waives attorney client

privilege “if he injects into the case an issue that in fairness
requires an examination of otherwise protected communications.”
Cox v. Adm'r U.S. Steel & Carnegie, 17 F.3d 1386, 1419 (11th Cir.),
opinion modified on reh'g, 30 F.3d 1347 (11th Cir. 1994).

“By

alleging that his attorneys provided ineffective assistance of
counsel in their choice of a defense strategy, [Defendant] put at
issue-and thereby waived-any privilege that might apply to the
contents of his conversations with those attorneys to the extent
those conversations bore on his attorneys' strategic choices.”
Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001).

Any

required discovery from defense counsel must be tailored to the
issues raised in the § 2255, which result in the waiver.

United

States v. Pinson, 584 F.3d 972, 978–79 (10th Cir. 2009); Bittaker
v. Woodford, 331 F.3d 715 (9th Cir. 2003).

1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.
- 4 -

If the § 2255 petition can be resolved without an evidentiary
hearing, there would be no need to invade what would otherwise be
privileged communications.

The government has not yet taken a

position on whether an evidentiary hearing on some, or all, of the
issues

raised

in

the

§2255

motion

is

required,

and

“[a]n

evidentiary hearing is not required whenever a petitioner asserts
a claim of ineffective assistance under section 2255.”

Gordon v.

United States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citation
omitted).

To establish entitlement to an evidentiary hearing,

petitioner must “allege facts that would prove both that his
counsel performed deficiently and that he was prejudiced by his
counsel’s deficient performance.”

Hernandez v. United States, 778

F.3d 1230, 1232-33 (11th Cir. 2015).
on

patently

frivolous

claims

unsupported generalizations.

or

“A hearing is not required

those

which

are

based

upon

Nor is a hearing required where the

petitioner’s allegations are affirmatively contradicted by the
record.”
1979).

United States v. Guerra, 588 F.2d 519, 521 (5th Cir.
Even

if

petitioner

has

alleged

sufficient

facts,

an

affidavit from former counsel contesting the facts would not change
the course of the proceedings: an evidentiary hearing would still
be required.
The motion will be denied without prejudice.

If after the

government’s response the Court determines that an evidentiary
hearing

is

required,

including

testimony

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of

former

counsel

regarding specific communications, the government will have an
opportunity to seek appropriate discovery if it wishes.
Accordingly, it is hereby
ORDERED:
1. Former appellate counsel’s Motion to Adopt (Doc. #18) is
GRANTED and counsel’s opposition is duly noted.
2. The

government's

former

Defense

Motion

Requesting

Counsel

to

an

Order

Disclose

Requiring

Substance

of

Communication and to Provide Documents and Affidavits (Doc.
#15) is DENIED without prejudice.
3. The government shall respond to petitioner’s Motion (Doc.
#1) within THIRTY (30) DAYS of this Order.
4. Petitioner’s renewed request to be released from custody,
contained in the Pro Se Amended Response to U.S. Attorney’s
Doc 11 Motion (Doc. #19), is DENIED.
5. The government’s Second Motion for Extension of Time (Doc.
#20) is DENIED as moot.
DONE and ORDERED at Fort Myers, Florida, this
May, 2017.

Copies:
Petitioner
Counsel
AUSA
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1st

day of