Randolph v. United States of America

Filing 17

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the government's Motion to Produce Affidavit is DENIED. [Doc. 13] Signed by Honorable Charles A. Shaw on 7/10/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALBERT RANDOLPH,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)
)

No. 4:09-CV-1416 CAS

MEMORANDUM AND ORDER
This matter is before the Court on the government’s Motion to Produce Affidavit. For the
following reasons, the motion will be denied.
The government moves for an order requiring that movant’s former defense counsel, an
Assistant Federal Public Defender, provide an affidavit addressing movant’s claims of ineffective
assistance of counsel. Although movant has waived his attorney-client privilege by raising
allegations of ineffective assistance of counsel in his § 2255 motion, see Tasby v. United States, 504
F.2d 332, 336 (8th Cir. 1974), discovery and expansion of the record in a § 2255 matter are
governed by Rules 6 and 7 of the Rules Governing Section 2255 Proceedings for the United States
District Courts. The government has not cited any authority for the proposition that a non-party to
this action can or should be compelled to provide an affidavit.
The government quotes Wright v. United States, 2008 WL 4276206 (D. Del. Sept. 17, 2008),
for the proposition that while an evidentiary hearing could be conducted on the allegations of
ineffective assistance of counsel, “the ‘missing’ information can be obtained more expeditiously by
requiring Movant’s former defense attorney to provide an affidavit responding to the allegations
raised in his § 2255 motion.” Id. at * 3. Wright is procedurally distinguishable from the instant case

because there the court had denied two of the movant’s three claims. Apparently on its own motion,
the court ordered former defense counsel to submit an affidavit concerning the remaining allegations
of ineffective assistance of counsel, in lieu of the court holding an evidentiary hearing on the claim.
The Court declines to follow Wright in the present context. The Motion to Produce Affidavit should
therefore be denied.
In addition, the government makes only conclusory assertions that it requires an affidavit
from defense counsel.

The government merely states that it believes defense counsel has

information that is relevant to the ineffective assistance of counsel claims movant raises in his §
2255 motion. However, the government, using other sources of relevant information, has already
filed its answer without an affidavit from defense counsel. In its Motion to Produce Affidavit, the
government has not adequately explained what additional information it requires from defense
counsel such that she should be compelled to produce an affidavit against her former client.
Accordingly,
IT IS HEREBY ORDERED that the government’s Motion to Produce Affidavit is
DENIED. [Doc. 13]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

10th

day of July, 2012.

2