Brewer v. United States of America
ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) ( Criminal Action CR 08-67) filed by Edward Frank Brewer. The government is directed to file a brief in response to the movants § 2255 motion on or before 9/17/12. If he so chooses, the movant is directed to file a brief in reply to the governments response on or before 10/03/12. The movant raises at least one claim of ineffective assistance of counsel. Therefore, counsel whose representation is challenged is directed to file with the court an affidavit that responds only to the movants specific allegation(s) of ineffective assistance of counsel. This court-supervised response to the movants allegation(s) must be filed with the court on or before 8/17/12. Signed by Chief Judge Linda R Reade on 7/19/12. (ksy) (copy w/NEF to Plf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
EDWARD FRANK BREWER,
UNITED STATES OF AMERICA.
This matter appears before the court on Edward Frank Brewer’s motion to vacate,
set aside or correct sentence pursuant to 28 U.S.C. § 2255. Edward Frank Brewer (“the
movant”) filed such motion on April 4, 2012.
Having conducted its preliminary consideration of the movant’s § 2255 motion
pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, 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 September 17, 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 October 3,
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
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
August 17, 2012. The clerk’s office is directed to provide a copy of this order to the
movant’s former counsel.1 After defense counsel complies with the court’s directives, the
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:
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
clerk’s office is directed to serve both parties with a copy of the documents that defense
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
and claim for other expenses should not exceed $250.00.
IT IS SO ORDERED.
DATED this 19th day of July, 2012.
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.
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