Capps v. USA

Filing 17

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the Government's Motion to Reconsider the Court's Denial of the Government's First Motion to Produce Affidavits [Doc. No. 14] is GRANTED in part and DENIED in part, as follows:a) Petition er is found to have waived the attorney-client privilege with respect to the subject areas noted above; and b) Petitioner's prior defense counsel, Michael Skrien and Patrick McMenamin are authorized and ordered promptly to provide the requested information to Respondent, consistent with this Order, so as to permit Respondent to file a timely response to the § 2255 motion; and c) On this record, Respondent's request that the Court order the prior defense counsel to execute affidavits is denied as unnecessary. Signed by District Judge Audrey G. Fleissig on 2/19/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DENNIS RAY CAPPS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 1:14CV0144 AGF

MEMORANDUM AND ORDER
This matter is before the Court on Respondent’s motion to reconsider this Court’s
previous denial of the Respondent’s first motion to produce affidavits. For the reasons
stated below, Respondent’s motion shall be granted in part and denied in part.
Petitioner Dennis Ray Capps filed a motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. He asserts the following three grounds in support of his
motion: (1) one or both of his defense attorneys, Michael Skrien or Patrick McMenamin,
was ineffective for failing to convey a plea offer to Petitioner prior to trial; (2) defense
counsel was ineffective in failing properly to prepare for the motion to suppress
statements and physical evidence, including counsel’s failure to obtain still photographs
of Petitioner’s car at the time of the traffic stop and failure properly to cross-examine the
officer regarding the facts leading up to the traffic stop; and (3) a more generalized
assertion that defense counsel was ineffective in failing to inspect and object to
inadmissible evidence. (Doc. No. 1.)

On January 23, 2015, Respondent filed a motion seeking to compel the production
of affidavits from Messrs. Skrien and McMenamin addressing the points asserted in the
§ 2255 motion. The Court denied the motion on January 26, 2015. (Doc. No. 11.) While
recognizing that Petitioner waived the attorney-client privilege with respect to the issues
raised in the § 2255 motion, the Court was unwilling to take the further step of ordering
Petitioner’s prior defense counsel to execute affidavits. Id.
In its motion to reconsider, Respondent asks the Court to find that Petitioner has
waived his attorney-client privilege respecting any communications between Petitioner
and his counsel regarding any plea offers, and again requests the Court to order said
witnesses to produce affidavits regarding the narrow issues raised.
As this Court recognized in its prior Order, by asserting claims of ineffective
assistance of counsel, Petitioner has, as a matter of law, waived the attorney-client
privilege with respect to the issues raised in his § 2255 motion. Tasby v. United States,
504 F.2d 332, 336 (8th Cir. 1975). Thus, this Court shall specifically find that Petitioner
has waived the attorney-client privilege with respect to (1) any communications from
either Mr. Skrien or Mr. McMenamin regarding any plea offers, and Petitioner’s response
thereto, and (2) the alleged deficiencies asserted by Petitioner in counsel’s actions
regarding (i) the motion to suppress evidence and statements and (ii) the examination of
the officer regarding the facts surrounding the traffic stop.
The Court likewise agrees that these witnesses are necessary for Respondent to
respond to the § 2255 motion. Thus, as Judge Perry ordered in Hayes v. United States,
No. 4:09CV531 CDP, 2009 WL 2071244 (E.D. Mo. July 13, 2009), the Court will also
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authorize and order Mr. Skrien and Mr. McMenamin to provide the requested
information to Respondent at this time, so as to allow Respondent to prepare a response.
Respondent has cited cases in which other courts have recognized their authority
to order the prior defense counsel to prepare affidavits or ordered such affidavits.
However, the Court declines to follow those cases. This Court believes it is proper to
make findings with respect to the scope of the waiver, and to order the defense
counsel/witnesses to provide the information necessary to prepare a response. And such
defense counsel are certainly permitted to memorialize the facts in an affidavit. Absent a
showing of necessity, however, the Court does not think it is appropriate to order the
defense counsel/witnesses to execute affidavits, as opposed to perhaps testifying at a
hearing. Inasmuch as Respondent has asserted in its motion for reconsideration that the
two defense counsel have agreed to execute affidavits, here it appears that no such order
from this Court is required.
Accordingly,
IT IS HEREBY ORDERED that the Government’s Motion to Reconsider the
Court’s Denial of the Government’s First Motion to Produce Affidavits [Doc. No. 14] is
GRANTED in part and DENIED in part, as follows:
a. Petitioner is found to have waived the attorney-client privilege with respect to
the subject areas noted above; and
b. Petitioner’s prior defense counsel, Michael Skrien and Patrick McMenamin are
authorized and ordered promptly to provide the requested information to

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Respondent, consistent with this Order, so as to permit Respondent to file a
timely response to the § 2255 motion; and
c. On this record, Respondent’s request that the Court order the prior defense
counsel to execute affidavits is denied as unnecessary.

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AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 19th day of February, 2015.

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