Jones v. United States of America

Filing 17

ORDER entered by Judge Sara Darrow on November 7, 2016. The government's 9 Motion for Order is GRANTED as specified herein. Petitioner's 11 "Motion for Request," is GRANTED IN PART and DENIED IN PART as explained herein. His 12 Motion for Order is DENIED, and the court declines to rule at this time on his 13 Motion for Evidentiary Hearing. (SC, ilcd)

E-FILED

Monday, 07 November, 2016 05:09:17 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROCK ISLAND DIVISION
TIMOTHY D. JONES,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-cv-04139-SLD

ORDER
Petitioner Jones challenges his guilty plea to receipt, 18 U.S.C § 2252A(a)(2)(A), and
possession, 18 U.S.C. § 2252A(a)(5)(B), of child pornography. See United States v. Jones, No.
14-cr-40086 (C.D. Ill. 2015). He does so pursuant to 28 U.S.C. § 2255. Before the Court are the
government’s Motion for Order, ECF No. 9; Jones’s “Motion for Request,” ECF No. 11; his
Motion for Order, ECF No. 12; and his Request for Evidentiary Hearing, ECF No. 13. For the
following reasons, the government’s Motion for Order is GRANTED. Jones’s “Motion for
Request” is GRANTED IN PART and DENIED IN PART as explained herein. His Motion for
Order is DENIED, and the court declines to rule at this time on his Motion for Evidentiary
Hearing.
I.

Government’s Motion for Order
The government asks the Court to order Jones’s former defense attorney in the criminal

proceeding that led to his guilty plea, Attorney George Taseff, to submit to the United States
Attorney’s office an affidavit addressing Jones’s claims against him. (Jones alleges that Attorney
Taseff provided ineffective legal assistance at and after the suppression hearing in his criminal
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case. See Am. Petition 1–6, ECF No. 8.) The government contends that, while attorney-client
privilege would normally operate to protect Taseff’s conversations with Jones while representing
him, Jones’s present claims constitute a waiver of the privilege. Mot. Order 3–4. Jones has not
directly responded to the government’s motion, although in his motion requesting an evidentiary
hearing, he asserts that certain of his allegations about Attorney Tasseff’s performance might be
“[p]roven . . . by affidavit from Attorney Taseff,” Mot. Hearing 1, suggesting that he does not in
principle oppose the production of such a document.
The government previously moved for such an order, ECF No. 6, a request that the Court
denied via text order on September 14, 2016. In that Order, the Court raised concerns about
possible infringement upon Jones’s attorney-client privilege. Later, in granting a motion for
extension of time to respond to Jones’s petition, the Court directed the Clerk to send Attorney
Taseff a copy of the docket and the government’s motion, to which he might respond if he wished.
Sept. 22, 2016 Text Order. In its renewed motion, the government points out that many other
courts in the Seventh Circuit have granted such orders, and that an order tailored closely enough to
the scope of Jones’s waiver will not run the risk of infringing on the privilege.

Id. at 5–6. The

government further argues that that production of such an affidavit in response to a court order,
rather than to a direct request from the government, will allow for some degree of judicial
supervision and promote transparency. Id.
Many federal circuits have held that a petitioner for relief from a criminal judgment under
section 2255 waives his attorney-client privilege as to the communications alleged to have been
materially ineffective. See United States v. Pinson, 584 F.3d 972, 977–78 (10th Cir. 2009)
(collecting controlling authority from the Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits).
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While no such definitive precedent exists in this Circuit, district courts routinely cite Pinson and
issue orders to former defense counsel to produce affidavits to the extent that a habeas petitioner
has waived the privilege. See James v. United States, No. 13-CV-1396, 2013 WL 5835903, at *1
(C.D. Ill. Oct. 30, 2013) (collecting cases). Here, Jones has made numerous allegations that
Attorney Taseff offered him advice that was legally deficient. See Am. Petition 1–6. The Court
finds that Jones has waived his attorney-client privilege as to certain of his communications with
Attorney Taseff, and grants the government’s motion for an order directing Attorney Taseff to
submit an affidavit, as detailed below.
II.

Remaining Motions
Jones’s “Motion for Request” addresses his concern that the Court will find he has failed to

raise on direct appeal the claims contained in his petition, and has thus procedurally defaulted
them. Mot. Request 1; see Coleman v. United States, 318 F.3d 754, 760 (7th Cir. 2003). To the
extent that Jones wishes the Court to consider his arguments in support of his Amended Petition,
the court will consider them, and grants his request that they be considered. To the extent that he
seeks a preliminary or declaratory judgment on the question of procedural default, the Court
declines to rule at this time, and denies Jones’s motion, as the government has not yet responded to
the Amended Petition, and the matter is not fully briefed.
Jones requests an evidentiary hearing. 28 U.S.C. § 2255(b) provides:
Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice thereof to be served
upon the United States attorney, grant a prompt hearing thereon, determine the
issues and make findings of fact and conclusions of law with respect thereto.
The Seventh Circuit has held that a hearing need only be conducted “when the petitioner ‘alleges
facts that, if proven, would entitle him to relief.’” Kafo v. United States, 467 F.3d 1063, 1067 (7th
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Cir. 2006) (quoting Bruce v. United States, 256 F.3d 592, 597 (7th Cir. 2001)). As the matter is
not yet fully briefed, the Court declines to rule at this time on Jones’s motion.
CONCLUSION
Accordingly, the government’s Motion for Order, ECF No. 9, is GRANTED as follows.
The Court HEREBY FINDS that the factual representations made by the government in its
motion are credible and, therefore, incorporates those facts in this Order;
The Court FURTHER FINDS that the defendant has waived his attorney-client privilege
with respect to any and all communications between him and Mr. Taseff relating to (i) the
application of United States v. Slaight, 620 F.3d 816 (7th Cir. 2010), to Jones’s suppression
motion; (ii) whether Jones would testify at the suppression hearing; (iii) potential suppression
hearing witnesses or evidence regarding the room and doorway in Jones’s apartment where he
spoke with officers; (iv) Jones’s argument regarding the officers’ jurisdiction and authority; (v)
dismissal of Jones’s appeal; and (vi) counsel’s offer to testify at a hearing on Jones’s § 2255
motion.
IT IS HEREBY ORDERED that within 14 days of the entry date of this Order, Mr. Taseff
shall submit to the United States Attorney’s Office, Central District of Illinois, an affidavit
addressing the petitioner’s claims in his § 2255 motion and supporting documents.
IT IS FURTHER ORDERED that the government shall include a copy of counsel’s
affidavit with its response in opposition to the petitioner’s § 2255 motion and shall include a copy
of the affidavit in the response served on the petitioner.
The Clerk is directed to send a copy of this order to Attorney Taseff.
Jones’s “Motion for Request,” ECF No. 11, is GRANTED IN PART and DENIED IN

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PART as explained herein. Jones’s Motion for Order, ECF No. 12, is DENIED, and the court
declines to rule at this time on his Motion for Evidentiary Hearing, ECF No. 13.

ENTERED:

November 7, 2016

s/Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE

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