INGALLS v. UNITED STATES OF AMERICA

Filing 19

MEMORANDUM OPINION AND ORDER, Petitioner Michael A. Ingalls, Jr. has waived his attorney-client privilege with respect to communications with his attorneys pertaining to each issue for which he now claims ineffective assistance of counsel and counsel's unauthorized filing of the § 2255 motion, etc. Signed by Judge Jerome B. Simandle on 8/9/17. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

MICHAEL A. INGALLS, JR.,

HONORABLE JEROME B. SIMANDLE

Petitioner,
Civil Action
No. 15-5495 (JBS)

v.
UNITED STATES OF AMERICA,

[Crim. No. 13-359 (JBS)]

Respondent.
MEMORANDUM OPINION AND ORDER

SIMANDLE, District Judge:
Petitioner Michael A. Ingalls, Jr. pleaded guilty on May
23, 2013 to one count of conspiracy to commit bank fraud, in
violation of 18 U.S.C. § 1349, and one count of theft of mail,
in violation of 18 U.S.C. § 1708. On January 28, 2014, this
Court sentenced Ingalls to concurrent terms of imprisonment of
100 months for bank fraud and 60 months on theft of mail,
followed by five years of supervised release. On July 9, 2015,
Petitioner filed a motion to vacate, set aside and correct his
sentence pursuant to 28 U.S.C. § 2255, asserting that incorrect
factual information in the Presentence Report (“PSR”) resulted
in a miscalculation of his Criminal History Category. The Court
denied the petition on January 19, 2016, and denied a
certificate of appealability. [Docket Items 7 & 8.] Shortly
thereafter, on March 18, 2016, Petitioner filed the instant
Motion to Amend/Supplement Motion to Vacate [Docket Item 9],

seeking to vacate this Court’s January 19, 2016 Opinion and
Order and to add an ineffective assistance of counsel claim to
his § 2255 petition. For the reasons explained below, the Court
will order Mr. Ingalls and his former counsel to submit copies
of their respective correspondence regarding the first § 2255
petition.
1.

On May 23, 2013, Petitioner Michael A. Ingalls, Jr.

pleaded guilty to an Information charging him with one count of
conspiracy to commit bank fraud, in violation of 18 U.S.C. §
1349, and one count of theft of mail, in violation of 18 U.S.C.
§ 1708. On January 28, 2014, this Court sentenced Ingalls to 100
months imprisonment, followed by three years of supervised
release, and ordered him to pay restitution. Petitioner appealed
his sentence to the Third Circuit, arguing that this Court
incorrectly computed his Criminal History Category because the
1995 conviction was too old to factor into the calculation.1 The
Third Circuit affirmed and upheld Petitioner’s sentence. United
States v. Ingalls, 604 Fed. Appx. 156, 160 (3d Cir. 2015).
2.

On July 9, 2015, Petitioner, through counsel, filed a

petition to vacate his sentence under § 2255, arguing that the

1

On appeal, Petitioner argued that his 1995 conviction fell
outside the Guideline’s applicable time period because he
disputed when his current criminal conduct commenced and whether
the fifteen-year period began running as of his prior conviction
date or his prior sentencing date. Id.
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PSR included factually incorrect evidence as to the date of his
New Jersey Superior Court sentencing that would render his 1995
conviction outside § 4A1.2(e)’s applicable fifteen-year time
period. This Court denied the petition, and a certificate of
appealability, on January 19, 2016. [Docket Items 7 & 8.]
3.

Shortly thereafter the Court received correspondence

from Petitioner, pro se, seeking to vacate this Court’s January
19, 2016 Opinion and Order and to add an ineffective assistance
of counsel claim to his § 2255 petition. [Docket Item 9.]
Petitioner contends that his counsel, Mr. Sufrin, filed the
first § 2255 petition without his knowledge or consent, and that
he submitted his own motion to amend the § 2255 Petition on
December 14, 2015, adding an ineffective assistance of counsel
claim in connection with his guilty plea, before the first
petition was adjudicated on the merits, which motion was never
docketed.
4.

This Court determined that there might be grounds to

vacate the January 19, 2016 Opinion and Order under Rule
60(b)(6), Fed. R. Civ. P., if the counseled petition was truly
unauthorized by the client, Petitioner Ingalls. Accordingly, the
Court Ordered counsel to respond to Petitioner’s allegations.
[Docket Item 12.] Mr. Sufrin, who prepared the first § 2255
motion in this action, and Mr. Wixted, who represented
Petitioner at his sentencing before this Court in 2014 and on
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appeal before the Third Circuit, responded by sworn
certification. [Docket Item 13; amended at Docket Items 14, 15 &
16.] Although invited to do so, the United States never
articulated a position to Petitioner’s pro se motion to amend.
Mr. Ingalls’s reply to the certifications of counsel was
received on May 2, 2017 and docketed that day. [Docket Item 17.]
5.

A search of the Court’s records reveals that neither

the Clerk of Court nor the undersigned’s chambers received any
submission from Mr. Ingalls in December 2015, seeking to amend
his § 2255 petition. Mr. Sufrin also indicates he has found no
such pleading by Ingalls to the Court seeking to amend or
supplement his § 2255 petition. [Docket Item 16 at ¶ 4.]
6.

Mr. Sufrin has offered to submit to the Court each

item of relevant correspondence mentioned in his certification
and listed therein, and Mr. Ingalls raises no objection to such
a submission. The Court will require Mr. Sufrin to submit copies
of each of the items of correspondence between his firm and Mr.
Ingalls that are mentioned and listed in his Final (Corrected)
Certification. [Docket Item 17 at ¶ 13.] Normally, such
attorney-client communications are privileged and cannot be
revealed to an outside party. Here, however, by raising the
issue of ineffective assistance of counsel and the allegedly
unauthorized nature of the § 2255 petition which counsel filed
and this Court has adjudicated, Mr. Ingalls has waived the
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privilege regarding his communications with counsel as well as
the protection of counsel’s work product within the subject
matter of which Mr. Ingalls now complains. See United States v.
Pinson, 584 F.3d 972,977-78 (10th Cir. 2009); Rhone-Poulenc
Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863 (3d Cir. 1994);
see also Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir.
2001) (waiver of privilege is limited to communications that
bear on the strategic choices at issue); In re Grand Jury
Subpoena, 745 F.3d 681, 693 (3d Cir. 2014) (attorney and client
can assert or waive privilege over work product); In re Grand
Jury Subpoena, 599 F.2d 1224, 1231 (3d Cir. 1979) (work product
protection may be overcome by a showing of good cause by the
Government). Although Mr. Ingalls’s waivers of privilege and
work product protection are clear, the Court will, in an
abundance of caution, permit Mr. Sufrin to file these documents
under seal; it is conceivable that the documents may contain
portions that are not related to the issues at hand, and
therefore not within the scope of the waiver, so that filing
under seal will protect the possibly continuing vitality of the
privilege as to such portions.
7.

Furthermore, the Court will require Mr. Ingalls to

submit and serve all evidence demonstrating that he composed and
submitted his own motion to amend the § 2255 petition on or
about December 14, 2015, as he claims.
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8.

The submissions from the Zucker, Steinberg & Wixted

law firm and from Mr. Ingalls, respectively, are due in 14 days
from the date this Memorandum Opinion & Order is entered upon
the docket.
Consequently, for good cause shown;
It is, on this

9th

day of

August

, 2017, hereby

ORDERED that:
1.

Petitioner Michael A. Ingalls, Jr. has waived his

attorney-client privilege with respect to communications with
his attorneys pertaining to each issue for which he now claims
ineffective assistance of counsel and counsel’s unauthorized
filing of the § 2255 motion; and
2.

Mr. Sufrin shall submit copies of each of the items of

correspondence between his firm and Mr. Ingalls that are
mentioned in his Final (Corrected) Certification [Docket Item 17
at ¶ 13] to the Court and to Mr. Ingalls; Mr. Sufrin shall file
such documents under seal and shall supply copies of the same to
Mr. Ingalls; and
3.

Mr. Ingalls shall submit to the Court and to Mr.

Sufrin all evidence demonstrating that he composed and submitted
his motion to amend the § 2255 petition on or about December 14,
2015; and

6 

4.

Any submissions to the Court shall be due in fourteen

(14) days from the entry of this Memorandum Opinion & Order.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

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