Cuthbert v. USA

Filing 4

MEMORANDUM DECISION AND ORDER. The Government is granted a 90-day extension of time to file its response. Petitioner is directed to file a notice, within 30 days of the date this order is entered, informing the Court as to whether he chooses to withdraw his ineffective assistance of counsel claims in order to preserve his attorney-client privilege. 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 (alw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
EUGENE CLEMENT CUTHBERT,
Case No. 4:21-cv-00348-BLW
4:18-cr-00297-BLW
Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Before the Court is the Government’s Motion for Extension of Time to File
a Response to Petitioner’s Motion Under 28 U.S.C. § 2255 and for an Order
Granting a Waiver of Attorney-Client Privilege. (Dkt. 3, Case No. 4:21-cv-00348BLW.) The Court will grant the motion for extension of time, but, for the reasons
discussed below, will give the Petitioner 30 days to respond to the Government’s
request for waiver of attorney-client privilege.
BACKGROUND
Petitioner, Eugene Clement Cuthbert, pled guilty to possession with intent to
distribute methamphetamine, and was sentenced on December 11, 2019, to 262
months of imprisonment, 5 years of supervised release, and monetary penalties.

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Petitioner timely filed an appeal. On September 11, 2020, the Ninth Circuit
dismissed the appeal, finding that Petitioner had waived his right to appeal his
conviction and sentence. (Dkt. 134, Case No. 4:18-cr-00297-BLW-1.)
On August 26, 2021, Petitioner filed a petition under 28 U.S.C. § 2255
seeking to vacate, set aside, or correct his sentence in Case No. 4:18-cr-00297BLW. (Dkt. 1, Case No. 4:21-cv-00348-BLW.) In support of his petition, Petition
brings several claims, including a claim that he was denied effective assistance of
counsel. (Id.) Specifically, Petitioner claims that his counsel Paul Ziel:
Abandoned objections to the P.S.R. that were filed, then withdrawn.
Namely, criminal history category, weight and purity of
methamphetamine, possession of dangerous weapon, [length] of
sentence, and fully concurrent sentence. He also failed to appeal the
findings of the evidentiary hearing and the trial court’s adverse ruling
thereon.
....
Mr. Ziel withdrew many objections to the P.S.R. under duress and
threats from prosecutor Mr. Nafzger prior to sentencing. The criminal
history points were calculated incorrectly in the P.S.R. . . .
(Dkt. 1 at 5, 6.)
ANALYSIS
It is well settled in the Ninth Circuit that “where a habeas petitioner raises a
claim of ineffective assistance of counsel, he waives the attorney-client privilege as
to all communications with his allegedly ineffective lawyer.” Bittaker v. Woodford,

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331 F.3d 715, 716 (9th Cir. 2003). The scope of this waiver is determined by the
particular claims raised in the petition, and a court should grant a waiver no
broader than necessary to enable the opposing party to respond to the specific
allegations presented in the petition. Id. at 720.
This implicit waiver of the attorney-client privilege is not, however,
unlimited. A “court must impose a waiver no broader than needed to ensure the
fairness of the proceedings before it. Because a waiver is required so as to be fair
to the opposing side, the rationale only supports a waiver broad enough to serve
that purpose.” Id. Thus, “under the fairness principle,” the waiver should be closely
tailored “to the needs of the opposing party in litigating the claim in question.”
Id.(citations omitted).
The holder of the privilege, here, Petitioner, may, however, “preserve the
confidentiality of the privileged communications by choosing to abandon the claim
giving rise to the waiver condition.” Id. at 721.
Here, the ineffective assistance of counsel claims raised by Petitioner are
limited to (1) his counsel’s performance in relation to sentencing, and specifically
his counsel’s purported abandonment of objections to the P.S.R.; and (2) counsel’s
failure to appeal the findings of the evidentiary hearing and the trial court’s adverse
ruling thereon. Thus, the scope of the waiver of privilege will be limited to these

MEMORANDUM DECISION AND ORDER - 3

two areas of inquiry.
As noted above, Petitioner must be given an opportunity to choose between
(1) moving forward with his ineffective assistance of counsel claims,
understanding that his attorney-client privilege is waived as set forth above, or
(2) withdrawing his ineffective assistance of counsel claims in order to preserve his
attorney-client privilege. See Bittaker, 331 F.3d at 721. Thus, the Court will
provide Petitioner 30 days within which to file a notice informing the Court as to
whether he would like to proceed or withdraw his ineffective assistance of counsel
claims.
ORDER
IT IS ORDERED that the Government’s Motion for Extension of Time to
File a Response to Petitioner’s Motion Under 28 U.S.C. § 2255 and for an Order
Granting a Waiver of Attorney-Client Privilege (Dkt. 3, Case No. 4:21-cv-00348BLW) is granted in part as follows:
1.

The Government is granted a 90-day extension of time to file its
response.

2.

Petitioner is directed to file a notice, within 30 days of the date this
order is entered, informing the Court as to whether he chooses to
withdraw his ineffective assistance of counsel claims in order to
preserve his attorney-client privilege.

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3.

If Petitioner fails to file such notice within 30 days of the date this
order is entered:
a. Petitioner is deemed to have waived his attorney-client privilege as
to communications related to the ineffective assistance of counsel
claims raised in his § 2255 petition. This waiver is effective
without further order of the Court.
b. Mr. Paul Ziel shall make himself available to answer material
questions from the Government and prepare an appropriate
affidavit within 60 days after entry of this Order.

4.

The Government shall serve a copy of this order on Mr. Paul Ziel.
DATED: October 4, 2021

_________________________
B. Lynn Winmill
U.S. District Court Judge

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