Thomas v. USA
Filing
4
ORDER re 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Criminal Action 11cr2046-LRR-6) filed by Dion Thomas: The Court concludes the movant's claims should be briefed. See text of Order. Defendants Brief due by 4/10/20 17. Movant's Reply Brief (if he chooses) due by 5/1/2017. Counsel whose representation is being challenged is directed to file an affidavit by 3/10/2017. Signed by Chief Judge Linda R Reade on 02/01/2017. (copy w/NEF mailed to Def, eFormer Counsel) (jjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
DION THOMAS,
Movant,
No. C16-2006-LRR
No. CR11-2046-LRR
vs.
UNITED STATES OF AMERICA.
ORDER
This matter appears before the court on Dion Thomas’ motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Dion Thomas (“the
movant”) filed such motion on January 13, 2016.
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
concludes that the movant’s claims should be briefed. The parties are DIRECTED 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 April 10, 2017.
The government may attach relevant materials to its brief.
2. If he so chooses, the movant is DIRECTED to file a brief
in reply to the government’s response and/or additional
materials related to his § 2255 motion on or before May 1,
2017.
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 court-supervised response to the movant’s allegation(s) must be filed
with the court on or before March 10, 2017. The clerk’s office is DIRECTED to provide
a copy of this order to the movant’s former counsel.1 After counsel complies with the
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
(continued...)
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court’s directives, the clerk’s office is DIRECTED to serve both parties with a copy of
the documents that counsel files. If the movant objects to counsel responding as ordered
herein, the movant is DIRECTED to notify the court of the objection and the basis for the
objection within 21 days of the date of this order. Upon receipt of an objection by the
movant, the court will notify the parties and counsel that they need not take further action
until they are directed to do so by the court.
IT IS SO ORDERED.
DATED this 1st day of February, 2017.
1
(...continued)
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, in camera with a request for a protective order if necessary, 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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