Clay v. United States of America

Filing 2

ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR 09-5) filed by Donnale C Clay. The government is directed to file a brief in response to the movant's 2255 motion on or before 1/13/2012. If he so chooses, the movant is directed to file a brief in reply to the government's response on or before by 1/28/2012. The movant raises at least one claim of ineffective assistance of counsel. Therefore, counsel whose representation is challenged is directe d to file with the court an affidavit that responds only to the movant's specific allegation(s) on or before 12/13/11. The clerk's office is directed to provide a copy of this order to the movant's former counsel. (See order text). Signed by Chief Judge Linda R Reade on 11/15/11. (Copy w/NEF to Attys Mullen, Nadler and Johnston via CM/ECF; Copy w/NEF to Plf via US Mail) (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DONNALE C. CLAY,
Movant,

No. C11-0121-LRR
No. CR09-0005-LRR

vs.
UNITED STATES OF AMERICA.

ORDER

____________________________
This matter appears before the court on Donnale C. Clay’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (docket no. 1). Donnale C. Clay
(“the movant”) filed such motion on November 14, 2011.
With respect to the merits of the current motion, the court notes that a cursory
review indicates the following: (1) the movant fails to assert any facts in support of his
failure to investigate claim, (2) the record, which includes the exhibits that he submitted
in support of his motion, contradicts his general assertion that defense counsel did not
adequately investigate his case, (3) defense counsel did file a motion to suppress (see
docket nos. 21, 24, 25 and 28), (4) the record negates the movant’s assertion that a Fourth
Amendment violation occurred, especially considering that defense counsel acknowledges
the existence of a search warrant and defense counsel admits that the government included
in its discovery file a copy of such search warrant, (5) the movant’s assertion that he did
not knowingly and voluntarily plead guilty to a valid plea agreement is belied by his
repeated admissions (see docket nos. 26, 35, 36, 37, 38, 77 & 79), (6) the movant does
not provide any details as to how the government improperly interfered during his
sentencing hearing and seems to imply that he is merely dissatisfied with the terms of his
plea agreement, (7) the movant is unable to now contest the portions of his pre-sentence
investigation report that he did not lodge an objection and (8) the movant makes no attempt

to explain how it is that defense counsel caused him to suffer any prejudice. Despite the
fact that the court’s preliminary consideration of the movant’s § 2255 motion pursuant to
Rule 4(b) of the Rules Governing Section 2255 Proceedings suggests that the movant’s
ineffective assistance of counsel claims are frivolous, the court directs the government and
the movant to respond in the following manner:
1. The government is directed to file a brief in response to the
movant’s§ 2255 motion on or before January 13, 2012. The
government may attach relevant exhibits to its brief.
2. If he so chooses, the movant is directed to file a brief in
reply to the government’s response on or before January 28,
2012.
The movant raises at least one claim of ineffective assistance of counsel. A claim
of ineffective assistance of counsel waives the attorney-client privilege as to
communications with the attorney that are necessary to prove or disprove the claim. See
Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (“When a client calls into public
question the competence of his attorney, the privilege is waived.”); see also United States
v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (citing Tasby, 504 F.2d at 336); United
States v. Davis, 583 F.3d 1081, 1090 (8th Cir. 2009) (making clear that attorney-client
privilege cannot be used as both a sword and a shield); In re Lott, 424 F.3d 446, 453 (6th
Cir. 2005) (citing Tasby, 504 F.2d at 336); Bittaker v. Woodford, 331 F.3d 715, 720 (9th
Cir. 2003) (addressing scope of waiver); United States v. Ballard, 779 F.2d 287, 292 (5th
Cir. 1986) (permitting an attorney to reveal otherwise privileged communications when
defending himself against charges of improper conduct); Schwimmer v. United States, 232
F.2d 855, 863 (8th Cir. 1956) (indicating that waiver may be express or implied).
Therefore, counsel whose representation is challenged is directed to file with the court an
affidavit that responds only to the movant’s specific allegation(s) of ineffective assistance
of counsel. Such affidavit must contain all of the information that counsel reasonably
believes is necessary to respond to the movant’s specific allegation(s). In addition, counsel

2

is directed to attach to, or include with, his or her affidavit all of the documents that he or
she reasonably believes are necessary to respond to the movant’s allegation(s). This courtsupervised response to the movant’s allegation(s) must be filed with the court on or before
December 13, 2011. The clerk’s office is directed to provide a copy of this order to the
movant’s former counsel.1
Where former counsel cooperates by reviewing his or her files, by providing
information and documents, by preparing an affidavit and/or by testifying during an
evidentiary hearing, the court deems it appropriate to pay him or her under the Criminal
Justice Act, 18 U.S.C. § 3006A. After providing the requisite services, counsel may
submit a supplemental CJA 20 voucher.

Absent exceptional circumstances or an

extraordinary reason for doing so, counsel’s claim for services should not exceed 10 hours
1

The American Bar Association provides guidance as to when an attorney may
reveal information that relates to the representation of a client who alleges ineffective
assistance of counsel. Specifically, the ABA, in relevant part, states:
[a] lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably
believes necessary [. . .] to respond to allegations in any
proceeding concerning the lawyer’s representation of the client
[or] to comply with other law or a court order.
ABA Model Rules of Prof’l Conduct R. 1.6(b)(5)-(6); see also ABA Model Rules of Prof’l
Conduct R. 1.6 cmt. 12-15 (addressing disclosures that are adverse to the client).
Concerning Model Rule 1.6, counsel is advised to read ABA Formal Opinion 10-456,
Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective
Assistance of Counsel Claim. See ABA Comm. on Ethics & Prof’l Responsibility, Formal
Op. 10-456 (2010).
It may be accessed at the following website:
http://www.americanbar.org/content/dam/aba/migrated/2011_build/professional_respon
sibility/ethics_opinion_10_456.authcheckdam.pdf. Alternatively, such opinion may be
accessed by visiting the ABA’s website and typing into the search feature “10-456”. If
counsel concludes that he or she cannot comply with this order without violating an
attorney-client privilege or if counsel concludes that he or she cannot reasonably determine
the scope of the waiver of the attorney-client privilege, counsel is directed to file a
response that specifically states the reasons for his or her conclusion. To comply with this
order, counsel must file either an affidavit, a response or, if appropriate, a combination
of the two by the required date.
3

and claim for other expenses should not exceed $250.00.
IT IS SO ORDERED.
DATED this 15th day of November, 2011.

4