Jones v. USA

Filing 34

MEMORANDUM DECISION AND ORDER denying 28 Motion for Clarification; denying 31 Motion for Documentary Evidence; denying 26 Objection to the Court's Order. The Court's 25 Order Granting Limited Waiver shall stand as written. The Clerk of Court shall forward a copy of this Order to Attorney Thomas Monaghan at his registered ECF address. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

TODD RAY JONES,

Case No. 1:10-cv-00384-BLW

Petitioner,

MEMORANDUM DECISION
AND ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

Before the Court are Petitioner’s Motion For Documentary Evidence (Dkt. 31),
Petitioner’s Objection (Dkt. 26) to the Court’s Order (Dkt. 25) granting limited waiver of
attorney-client privilege, and a Motion for Clarification (Dkt. 28) by Petitioner’s former
counsel. The Court is familiar with the record and has thoroughly considered the
pleadings pertaining to these motions. The Court now enters the following Order
denying the Motions as discussed below.
BACKGROUND
Petitioner Todd Ray Jones brought this habeas petition under 28 U.S.C. § 2255
challenging his criminal sentence imposed by the Honorable Tena Campbell, sitting by
designation, following Jones’ conviction by jury. Mr. Jones’ petition asserts that he
received ineffective assistance from defense counsel in his criminal matter. The
Government sought and was granted a limited waiver of the attorney-client privilege, in
order to question Mr. Jones’ defense counsel, Tom Monaghan, and thus properly respond

MEMORANDUM DECISION AND ORDER - 1

to Jones’ claims. Mr. Jones objected, arguing that he should be appointed counsel, and
that such counsel should be present at an evidentiary hearing for the Court to determine
the validity of Mr. Monaghan’s responses to the Government’s questions. Mr. Jones
previously filed a motion for appointment of counsel on which the Court has deferred
ruling pending receipt of the Government’s response to the § 2255 Motion. Order, Dkt.
23. Mr. Monaghan seeks clarification from the Court as to the scope of the waiver, and
proposes that the Government be directed to provide questions in advance of questioning.
This way, Mr. Monaghan suggests, would best enable him to seek further clarification
from the Court — if needed – and would best preserve the record for the Court’s, or
Petitioner’s, later review.
ANALYSIS
It is well established that, where a petitioner raises the effectiveness of counsel as
a basis for a § 2255 motion, he waives the attorney-client privilege “as to all
communications with his allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d
715, 716 (9th Cir. 2003)(citations omitted). Such waiver prevents a petitioner from using
the privilege to prevent the Government from accessing information critical to an
adequate defense of petitioner’s ineffective assistance of counsel claim. Id. at 718.
Accordingly, limited waivers, as was granted here, are routine.
In objecting to the Court’s order, Mr. Jones suggests that the Government is
attempting to depose Mr. Monaghan, thus under rules of discovery, the Court must allow
Mr. Jones to be present during questioning. The Government responds that it does not

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seek to depose Mr. Monaghan. Instead, it seeks information to which Mr. Jones is
already privy – communications, for purposes of legal representation, between Mr. Jones
and his counsel.
The Ninth Circuit has held that “[p]arties in habeas cases, unlike those in ordinary
civil cases, have no right to discovery,” except to the extent that a judge allows, for good
cause. Id. at 728 (citations omitted). At this stage, there is no basis on which to find
good cause for discovery as proposed by Mr. Jones – a deposition at which Mr. Jones
could potentially object to responses by Mr. Monaghan. Once Mr. Monaghan has been
questioned, subject to the restrictions imposed by the Court (Dkt. 25), the Government
will prepare a response to Mr. Jones’ petition. Mr. Jones will then have the opportunity
to reply and address any objections he may have to information cited by the Government
concerning Mr. Monaghan’s representation of Mr. Jones. The Court finds this process in
keeping with principles of fairness, and thus denies Mr. Jones’ request for
reconsideration, or to otherwise alter the proposed procedure ordered by the Court in
granting the limited waiver.
Mr. Monaghan seeks clarification of the scope of the limited waiver, and proposes
a requirement that the Government specify its questions in writing before asking him
about his representation of Mr. Jones. Mr. Monaghan suggests that this would both
preserve a record of the Government’s questions, and facilitate additional requests for
clarification. The Court declines Mr. Monaghan’s invitation to impose this requirement
on the Government. First, it is unclear that Mr. Monaghan’s proposal will preserve a

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record or facilitate clarification better than without the requirement. Also, the restriction
unnecessarily impedes on the organic nature of an interview, where relevant and
permissible questions may arise only after hearing responses to those questions posed in
advance. If Mr. Monaghan feels, at any point, that a particular question exceeds the
proper bounds of the issues raised by Mr. Jones in his petition, he may inform the
Government and bring the concern to the Court at that time. The Court finds that the
advantages identified by Mr. Monaghan, if any, do not outweigh the inefficiencies that
would inevitably result. Accordingly, the Court rejects the proposal.
With respect to Mr. Jones’ request for documents, the Court finds his request
premature. For a defendant proceeding in forma pauperis to obtain a copy of a transcript
without cost, a court must certify “. . . that the transcript is needed to decide the issue
presented by the suit or appeal.” 28 U.S.C. § 753(f); United States v. MacCollom, 426
U.S. 317 (1976). Until the Government has filed its response, it is not clear what the
scope of issues is. Thus the Court will deny the motion without prejudice.
ORDER
IT IS ORDERED THAT
1. Petitioner’s Objection (Dkt. 26) to the Court’s Order (Dkt. 26) to the extent it
moves for reconsideration, is DENIED.
2. The Motion for Clarification (Dkt. 28) is DENIED. The Court’s Order (Dkt.
25) Granting Limited Waiver shall stand as written.

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3. Petitioner’s Motion for Documentary Evidence (Dkt. 31) is DENIED without
prejudice.
4. The Clerk of Court shall forward a copy of this Order to Attorney Thomas
Monaghan at his registered ECF address.

DATED: March 14, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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