Elion v. USA
Filing
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MEMORANDUM AND ORDER, granting 5 MOTION filed by USA. Signed by Judge J. Phil Gilbert on 3/20/2018. (jdh)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
OTIS R. ELION,
Petitioner,
Civil No. 3:17-cv-01349-JPG
---------------------------------------Criminal No. 16-40046-JPG
v.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM & ORDER
J. PHIL GILBERT, DISTRICT JUDGE
This matter comes before the Court on the Government’s Motion for Order Authorizing
Criminal Defense Attorney to Provide Written Response. (Doc. 5.) Previously, this Court found
that petitioner’s § 2255 motion raised allegations of ineffective assistance of counsel and ordered
the Government to respond. Petitioner was represented by Assistant Federal Public Defender
Judith A. Kuenneke with respect to the allegations in the §2255 motion.
In light of the Seventh Circuit’s decision in United States v. Evans, 113 F.3d 1457 (7th
Cir. 1997), an order from the Court specifically finding that petitioner’s allegations have waived
the otherwise applicable attorney/client privilege and authorizing Mrs. Day to respond is
necessary. In Evans, the Seventh Circuit noted that the “most prudent course” for a defense
attorney to take before disclosing confidential communications and other information—even if
they attorney believed that a waiver of the privilege had clearly occurred—is to secure an
administrative or judicial determination that the disclosure would not violate the attorney client
privilege. Id. at 1468.
IT IS ORDERED that the Government’s motion be and is hereby GRANTED. The
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Court FINDS that petitioner’s allegations of ineffective assistance of counsel on the part of
Attorney Kuenneke operate as a waiver of the attorney/client privilege as to those allegations.
IT IS FURTHER ORDERED that Attorney Kuenneke is authorized to provide a
response addressing petitioner’s allegations of ineffective assistance of counsel raised in
petitioner’s § 2255 motion.
IT IS SO ORDERED.
DATE: MARCH 20, 2018
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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