Allen v. United States of America
Filing
201
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Movant Billie Allen's Motion for Reconsideration of Order Authorizing the Deposition of Movant or, in the Alternative, for Order Certifying Interlocutory Appeal [ECF No. 194 ] is DENIED. The Court will, however, enter a forthcoming separate Protective Order with respect to Movant's Depostion. Signed by Honorable E. Richard Webber on November 15, 2011. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BILLIE JEROME ALLEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 4:07CV00027 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Movant Billie Allen’s (“Movant”) Motion for
Reconsideration of Order Authorizing the Deposition of Movant or, in the Alternative, for Order
Certifying Interlocutory Appeal. [ECF No. 194]. Movant asks the Court to reconsider the portion
of its October 7, 2011 Order (“Order”) that authorizes Respondent the United States to depose
Movant. [See ECF No. 188]. The United States has filed a Response, [ECF No. 197], and
Movant has filed a Reply. [ECF No. 199].
I.
BACKGROUND: MOVANT’S § 2255 MOTION, THE COURT’S ORDER AND
MOVANT’S MOTION TO RECONSIDER
Movant was convicted of two criminal counts, and has been sentenced him to life
imprisonment on one count and to death on the other. See generally United States v. Allen, 406
F.3d 940 (8th Cir. 2005) (en banc). These sentences were affirmed on appeal. Id. Movant then
challenged his sentences in a Motion under 28 U.S.C. § 2255 on numerous constitutional
grounds. [ECF No. 60]. The Court denied each of Movant’s allegations without an evidentiary
hearing, with the exception of Ground J. [ECF No. 147]. In Ground J, Movant alleges that he
received ineffective assistance of counsel because -- among other reasons -- his trial counsel
failed to investigate, discover and present evidence of the harrowing abuse and neglect he
experienced as he grew up in a dysfunctional home. The Court ruled that Movant was entitled to
an evidentiary hearing on Ground J.
The United States then moved the Court for authorization to conduct discovery pursuant
to Rule 6 of the Rules Governing Section 2255 Proceedings (“Rule 6"), which permits discovery
only upon a showing of “good cause.” [ECF No. 162]. The Court issued an Order granting the
United States’s discovery request, including -- as is relevant here -- its request to depose Movant.
[ECF No. 188]. In that Order, the Court concluded that the Fifth Amendment privilege against
self-incrimination was not an absolute bar to Movant’s deposition, but that Movant did “retain
his Fifth Amendment rights when being questioned by the United States[.]” [ECF No. 188 at 11].
The Court stated that Movant retained his Fifth Amendment rights during his deposition,
“particularly if he were to be questioned as to his guilt,” id., and that Movant may “raise the Fifth
Amendment privilege in response to specific questions as is necessary to protect his rights
concerning his guilt.” Id. at 12. Next, the Court found that the United States had shown good
cause under Rule 6, and thus it authorized Movant’s deposition. Id. at 13. However, the Court
limited the scope of that deposition “to facts and claims alleged in Ground J[.]” Id. In addition,
the Court instructed that “[t]he questions posed by the United States must be phrased so that they
are directly linked to the allegations of Ground J,” and that “any questioning that addresses
Allen’s guilt or innocence is prohibited.” Id.
Movant now urges the Court to reconsider its Order. First, Movant asks the Court to
prohibit Movant’s deposition because the United States has failed to show “good cause.” Next,
Movant asks the Court to recognize the full scope of Movant’s Fifth Amendment privilege, based
on a contention that the Court’s Order implies that Movant’s privilege extends only to questions
concerning his guilt. Finally, if the United States is authorized to depose Movant, then Movant
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also asks the Court to limit the questioning to Movant’s communications with trial counsel about
mitigation, to limit use of Movant’s deposition to only the instant § 2255 proceedings, and to
amend its Order so that it is certified for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
II.
“GOOD CAUSE” FOR MOVANT’S DEPOSITION
First, Movant argues that the United States has failed to show “good cause” under Rule 6
for Movant’s deposition. Movant does not provide any new authority, but rather continues to rely
upon a passage from Wessinger v. Cain, No. 04-637, 2009 WL 111735 (M.D. La. Jan. 15, 2009).
The Court has already considered and distinguished this passage, because in the instant case the
United States has made a showing that trial counsel and Movant communicated and consulted
about mitigation evidence. Movant has provided nothing that casts doubt on this conclusion.
Accordingly, the Court declines to reconsider its finding of “good cause” to depose Movant.
III.
SCOPE OF MOVANT’S FIFTH AMENDMENT PRIVILEGE
Next, Movant asks the Court to recognize the full scope of Movant’s Fifth Amendment
privilege. Movant evidently interprets the Court’s order to mean that during deposition
questioning, he is entitled to raise this privilege only when questioned “as to his guilt” -- that is,
whether or not Movant is culpable for the charged criminal offense conduct. If so, and if Movant
is ultimately granted a new sentencing hearing, then Movant claims he could be questioned as to
matters that would furnish evidence the United States could use to establish statutory or nonstatutory aggravating factors under the death penalty statute, 18 U.S.C. § 3592(c), or to rebut the
mitigating factors he presents. In addition, Movant notes that he remains subject to prosecution
for his actions under Missouri state law.
Movant has misinterpreted the Court’s Order. As the Court wrote, Movant “does retain
his Fifth Amendment rights when being questioned by the United States[.]” [ECF No. 188 at 11].
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It is undisputed that the Fifth Amendment privilege applies to both the guilt and penalty phases
of a criminal trial. See Estelle v. Smith, 451 U.S. 454 (1981). Furthermore, Supreme Court
precedent is clear that the Fifth Amendment applies beyond a criminal prosecution:
The Amendment not only protects the individual against being involuntarily called
as a witness against himself in a criminal prosecution but also privileges him not to
answer official questions put to him in any other proceeding, civil or criminal, formal
or informal, where the answers might incriminate him in future criminal proceedings.
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973).
Accordingly, the Court will note with specificity that Movant may invoke his Fifth
Amendment privilege as is necessary during his deposition to protect his rights should a future
criminal proceeding occur. See, e.g., Lott v. Bradshaw, No. 1:04-cv-822, 2005 WL 3741492 at
*10 (N.D. Ohio Mar. 29, 2005) (“As with the Bean petitioner, [Petitioner] may at any point
during the deposition assert his Fifth Amendment right against self-incrimination, thereby
protecting his interests in any subsequent criminal proceedings.”) (referencing Bean v. Calderon,
166 F.R.D. 452 (E.D. Cal. Feb. 15, 1996)). Invocation of the Fifth Amendment privilege,
however, permits a court to draw an adverse inference against one invoking the privilege. See
Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“the prevailing rule is that the Fifth
Amendment does not forbid adverse inferences against parties to civil actions ...”). This position
is consistent with all authorities that have considered the issue known to this Court. See, e.g.,
Bean, 166 F.R.D. at 457; State ex rel. Myers v. Sanders, 526 S.E.2d 320, 326 (W. Va. 1999).
IV.
LIMITATION OF DEPOSITION QUESTIONING
Next, Movant asks the Court to prohibit United States from inquiring about his life
history during his deposition. Movant’s argument is based on a purported admission in the
United States’ Response, which stated that questioning Movant about his life history would be
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“redundant” to the questioning of two expert witnesses who conducted independent neuropsychological examinations of Movant.
In its Order, the Court limited the scope of deposition discovery to “the facts and claims
alleged in Ground J[.]” [ECF No. 188 at 13]. Movant’s life experiences form the foundation of
his allegations in Ground J and they are uniquely within Movant’s own personal knowledge.
Therefore the United States is entitled to depose Movant about them. Cf. Detrich, No. CV 03299, 2007 WL 177831 at *1 (D. Ariz. Jan. 23, 2007) (“Not only is Petitioner a central witness,
albeit not the only one, regarding much of the alleged mitigation, but also he is uniquely
knowledgeable about Respondents' intended inquiry regarding how his past experiences impacted
his behavior and the information he relayed to others including the expert witnesses.”).
Accordingly, the Court will decline Movant’s request to further limit the scope of Movant’s
deposition.
V.
LIMITATION OF DEPOSITION TO THE INSTANT PROCEEDING
In its Response, the United States suggested that the Court could address Movant’s Fifth
Amendment privilege concerns by exercising its power to limit Movant’s proceeding to the
instant § 2255 proceeding. Movant requested that the Court adopt this suggestion in his Reply.
Accordingly, at the suggestion of the parties and in light of Movant’s Fifth Amendment rights,
this Court will enter a Protective Order pursuant to Fed. R. Civ. Pro. 26(c). This Protective Order
will be entered separately and it will limit the use of Movant’s deposition to the instant § 2255
proceeding.
VI.
INTERLOCUTORY APPEAL
Finally, Movant asks the Court to amend its Order by certifying the issue of whether the
United States may depose Movant for an interlocutory appeal under 28 U.S.C. § 1292(b). Section
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1292(b) establishes three criteria for certification of an interlocutory appeal: “(1) the order
‘involves a controlling question of law’; (2) ‘there is substantial ground for difference of
opinion’; and (3) certification will ‘materially advance the ultimate termination of the
litigation.’” White v. Nix, 43 F.3d 374, 377 (8th Cir. 1994) (citing 28 U.S.C. § 1292(b)).
Movant cannot meet this standard. First, discovery is a discretionary matter for the trial
court, and “the discretionary resolution of discovery precludes the requisite controlling question
of law.” Id. Next, “[t]he little existing authority on this issue makes clear that a habeas court may,
with good cause, order the deposition of a habeas petitioner,” and thus Movant cannot show there
is a substantial ground for a difference of opinion as to whether a § 2255 may be deposed. Lott,
No. 1:04-cv-822, 2005 WL 3741492 at *8. Finally, because Movant has already been granted an
evidentiary hearing and the parties have already engaged in extensive discovery in preparation for
that hearing, there is no basis for finding that an appeal of Movant’s deposition would materially
advance the termination of the entirety of Movant’s pending § 2255 litigation. Accordingly, the
Court will decline Movant’s request for certification for an interlocutory appeal under § 1292(b).1
VII.
CONCLUSION
Movant’s primary concern appears to be that there is “no assurance that a statement by
Mr. Allen in these proceedings would not be used against him” in future criminal proceedings.
[ECF No. 194 at 4]. In its original Order, the Court ruled that Movant could exercise the
privilege against self-incrimination during his deposition, limited the scope of Movant’s
deposition to Ground J, and required that all questions be phrased so that they are directly linked
to the allegations of Ground J. In the instant Order, the Court reaffirms its ruling that Movant
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Movant’s Motion and Reply could also be interpreted as asking the Court to certify the
scope of Movant’s Fifth Amendment privilege as an issue for interlocutory appeal. If so, this
request is moot. See Section III, supra.
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may exercise his privilege against self-incrimination during his deposition. Furthermore, the
Court has also indicated it will enter a Protective Order limiting the use of Movant’s deposition.
The Court intends these Orders to be read together, and accordingly, Movant has the “assurance”
that he seeks. Movant has been ordered to submit to deposition, questioning the allegations he
made in Ground J, and he must answer those questions. If Movant exercises his Fifth
Amendment rights in inappropriate or unwarranted fashion, the Court may draw an adverse
inference against him and take other measures as necessary.
Accordingly,
IT IS HEREBY ORDERED that Movant Billie Allen’s Motion for Reconsideration of
Order Authorizing the Deposition of Movant or, in the Alternative, for Order Certifying
Interlocutory Appeal [ECF No. 194] is DENIED. The Court will, however, enter a forthcoming
separate Protective Order with respect to Movant’s Depostion.
Dated this 15th day of November, 2011.
______________________________________
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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