Young v. USA

Filing 96

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Respondent's Motion for Miscellaneous Relief Related to Discovery, [Doc. No. 95 ), is GRANTED as to the subject matter of the allegations in Petitioner's Section 2255 motion. Signed by District Judge Henry Edward Autrey on 2/5/2024. (CLH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELAIN KAY YOUNG,

Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16CV45 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Respondent’s motion for an order finding
waiver of the attorney-client privilege. [Doc. No. 95] For the reasons addressed
below, the motion is granted.
When a criminal defendant alleges that he or she received ineffective
assistance of counsel and puts the defendant’s communications with defense
counsel at issue, the defendant waives the attorney-client privilege with respect to
those communications. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir.
1974) (“A client has a privilege to keep his conversations with his attorney
confidential, but that privilege is waived when a client attacks his attorney's
competence in giving legal advice, puts in issue that advice and ascribes a course
of action to his attorney that raises the specter of ineffectiveness or
incompetence.”); accord United States v. Workman, 138 F.3d 1261, 1263 (8th Cir.

1998) (“Voluntary disclosure of attorney client communications expressly waives
the privilege.”). Consequently, when a defendant advances an ineffectiveassistance claim in a Section 2255 motion, courts expressly recognize that the
defendant waives the attorney-client privilege as to the allegations made in the
motion. See, e.g., United States v. Klinghagen, No. 20-CR-0034 (WMW/KMM),
2023 WL 146270, at *1 (D. Minn. Jan. 10, 2023); United States v. Rootes, No. 18312 (MJD/LIB), 2021 WL 5235136, at *4 (D. Minn. Nov. 10, 2021
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. 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).
Petitioner’s Section 2255 motion contends that her former attorneys
provided her ineffective assistance by failing to properly communicate and inform
Petitioner of the relevant circumstances and likely consequences of proceeding to
trial rather than pleading guilty; failing to conduct an adequate independent pretrial
investigation; failing to negotiate a reasonable plea agreement with the
Government; failing to prepare properly for trial and interview potential defense
witnesses; failing to call defense witnesses at trial who were available and ready to
testify to refute the Government's case and its witnesses' testimony; failing to
review, discuss and explain the PSR to Petitioner; failing to file specific objections
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to the PSR; failing to move for a downward variance under § 3553(a); and fail to
raise stronger appellate arguments.
In raising these claims of ineffective assistance of counsel Petitioner places
at issue her communications with her former attorneys. Because Petitioner has
placed all communication with her former attorneys pertaining to these matters at
issue and the Court has ordered the United States to respond to Petitioner’s
allegations at an evidentiary hearing, the Court now recognizes Petitioner’s waiver
of the attorney-client privilege with respect to her allegations. See Workman, 138
F.3d at 1263.
Based on the foregoing analysis and all of the files, records, and proceedings
herein,
IT IS HEREBY ORDERED that Respondent’s Motion for Miscellaneous
Relief Related to Discovery, [Doc. No. 95), is GRANTED as to the subject matter
of the allegations in Petitioner’s Section 2255 motion.
Dated this 5th day of February, 2024.

___________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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