Belton v. USA

Filing 13

ORDER : After review of Belton's response to Court Order, Government to answer within 60 days. ( Answer due by 5/24/2010.) Signed by Judge Joseph A. DiClerico, Jr. (dae)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Bruce Belton v. United States of America ORDER Bruce Belton filed a pro se petition, pursuant to 28 U.S.C. § 2255, to set aside his conviction and sentence. He asserts Civil No. 09-cv-345-JD

that his defense attorney, Paul Garrity, provided ineffective assistance of counsel. In order to answer Belton's petition, the

government moved for an order directing him to sign a release of his attorney-client privilege so that Attorney Garrity could respond to the government's questions concerning Belton's allegations. In response to the government's motion, the court ordered Belton to choose one of three options: 1) withdraw his § 2255 petition and preserve his attorney-client privilege; 2) proceed with his § 2255 petition and give up his attorney-client privilege as to matters he raised in his petition and memorandum; or 3) proceed with his § 2255 petition but preserve his attorneyclient privilege. Belton was informed in the order that if he

elected to proceed under option 3, the court would address his petition based on the existing record, and there would be a

presumption that Attorney Garrity's representation was not ineffective. In response to the order, Belton did not explicitly choose one of the three options. Instead, he filed a notice stating

that "[t]he petition stands on its merits and should be answered as is." This response certainly does not constitute a waiver of The court interprets Belton's

the attorney-client privilege.

response as implicitly choosing to proceed under option 3, meaning that Belton will proceed with his § 2255 petition and not waive his attorney-client privilege. Because Belton has not waived the attorney-client privilege, the privilege remains in effect. The government shall file a

response to the petition based on the record as it stands, including the record in the underlying criminal case, United States v. Bruce Belton, 04-cr-192-01-JD.

Conclusion The government shall file an answer within sixty (60) days of the date of this order, which answer shall provide a detailed response to each claim asserted by the movant, to the extent

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possible under the existing record, with appropriate references to the record when necessary.

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge March 25, 2010 cc: Bruce Belton, pro se Aixa Maldonado-Quinones, Esquire Paul Garrity, Esquire

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