End of Horn v. United States of America

Filing 11

ORDER granting 6 Motion to Extend Deadlines ; granting 6 Motion for Order Directing Former Defense Counsel to Respond to Claims of Ineffective Assistance. Signed by U.S. District Judge Charles B. Kornmann on 11/13/17. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION

FILED
NOV 1~ 2017

~~

STONEY END OF HORN,
17-CV-01011-CBK
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

ORDER DIRECTING FORMER
DEFENSE COUNSEL TO RESPOND
TO CLAIMS OF INEFFECTIVE
ASSISTANCE AND GRANTING
MOTION FOR EXTENSION OF TIME
TO ANSWER

The United States moves for an order directing former defense counsel to
respond to claims of ineffective assistance set forth in End of Horn's motion
under 28 U.S.C. § 2255. The United States also moves for an extension of time
to answer.
The United States Court of Appeals for the Eighth Circuit has recognized
that the attorney-client privilege may be impliedly waived when a client attacks
his attorney's competence and raises the issue of ineffectiveness or incompetence
of counsel. See Tasby v. United States, 504 F.2d 332 (8th Cir. 1974). ABA Model
Rule of Professional Conduct 1.6 also recognizes that a disclosure may be
impliedly authorized under certain circumstances, including when a lawyer
must respond to allegations in any proceeding concerning the lawyer's
representation of his or her client.
The American Bar Association, however, has issued an opinion advising
that former counsel confronted with a client making ineffective assistance of
counsel claims, consistent with their ethical obligations, (1) may not disclose
information imparted to him or her in confidence without first obtaining the
informed consent of the former client and (2) may only disclose such information

in "court-supervised testimony." ABA Comm. On Eth. And Profl. Responsibility,
Formal Op. 10-456 (July 14, 2010).
In consideration of the allegations set forth in End of Horn's motion under
28 U.S.C. § 2255, this Court has determined that the United States cannot
respond to the allegation of ineffective assistance of counsel without attorney
Terence J. Sutton's responding by affidavit to the specific allegations in the
motion concerning his representation of End of Horn. If End of Horn opposes
the waiver of the attorney-client privilege as it relates to the specific allegations
in his motion under 28 U.S.C. § 2255, those allegations will be stricken from his
motion under 28 U.S.C. § 2255. Accordingly, it is hereby
ORDERED:
1. The United States' motion directing former defense counsel to respond
is granted as follows:
A. The clerk will send this Order and the attached Attorney-Client
Privilege Waiver form to End of Horn;
B. If the Attorney-Client Privilege Waiver forms are not signed and
returned to the clerk for filing within 21 days, the allegations of
ineffective assistance of counsel will be stricken from End of Horn's
motion under 28 U.S.C. § 2255;
C. If the Attorney-Client Privilege Waiver is signed and filed, the United
States will forward a copy of the signed Attorney-Client Privilege
Waiver form to Terence J. Sutton, along with a copy of this Order
and End of Horn's§ 2255 motion. Attorney Terence J. Sutton will,
within 21 days of receiving the Attorney-Client Privilege Waiver
form, provide and file with the clerk an affidavit responding to the

specific

allegations

1n

the

§ 2255

motion

concerning

his

representation of End of Horn.
D. The United States' Motion for Extension is granted, and the United
States will file its response no later than 30 days after the affidavit
has been received.
Dated this

~of November, 2017.
BY THE COURT:

~13,~~
CHARLESB.KORNMANN
UNITED STATES DISTRICT JUDGE

ATTORNEY-CLIENT PRIVILEGE WAIVER

You have made a motion under 28 U.S.C. § 2255 alleging that you received
ineffective assistance from your former lawyer, Terence J. Sutton. The Court
has reviewed your motion and determined that an affidavit from your former .
lawyer concerning the specific allegations in your motion is necessary in order
to evaluate your motion.
The American Bar Association advises your attorney to obtain your consent
before disclosing confidential communications between you and him that may
bear on the disposition of your motion. This means that if you wish to proceed
on your claims of ineffective assistance, you must allow your communications
with your former counsel concerning the specific claims to be disclosed to the
United States and to the Court.
If you wish to proceed with your claims of ineffective assistance of counsel as

set forth in your§ 2255 motion, you must sign this form and return it to the
Court. The form authorizes your attorney to disclose confidential
communications only to the extent necessary to address the ineffective
assistance of counsel claims that are raised by your § 2255 motion.
You should know that if you sign this authorization, you run the risk that your
attorney will contradict your statements about his representation of you.
However, you should also know that the Court will strike the ineffective
assistance of counsel claims in your motion if you do not authorize your
attorney to give an affidavit in response to the ineffective assistance claims.
You must return this form within 21 days from the date of the Court's order
directing the clerk to mail this waiver to you or the allegations of ineffective
assistance of counsel will be stricken from your motion under 28 U.S.C.
§ 2255.
AUTHORIZATION

I have read the document entitled "Attorney-Client Privilege Waiver." I hereby
authorize my former attorney, Terence J. Sutton, to disclose confidential
communications only to the extent necessary to address the ineffective
assistance of counsel claims that are raised by my motion under 28 U.S.C.
§ 2255.
Dated this __ day of _ _ _ _ _ _ _ _ _ , 2017.

Stoney End of Horn, Petitioner