Rodriguez-Magallon v. United States of America

Filing 8

ORDER granting 6 Motion to Extend; granting 6 Motion to direct former counsel to provide affidavit. Signed by Chief Judge Karen E. Schreier on 10/19/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RODOLFO ERNESTO
RODRIGUEZ-MAGALLON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)
)

Civ. 11-4036-KES

ORDER DIRECTING FORMER
COUNSEL TO PROVIDE
AFFIDAVITS

Petitioner, Rodolfo Ernesto Rodriguez-Magallon, moves to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. § 2255. RodriguezMagallon argues that he received ineffective assistance of counsel when his
attorney failed to advise him of the immigration-related consequences of a
guilty plea as required by Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
Rodriguez-Magallon pleaded guilty to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a). CR. 09-40093. He was sentenced to a term of
77 months’ imprisonment. The United States now moves for an order
directing trial counsel to submit an affidavit specifically addressing
Rodriguez-Magallon’s ineffective assistance of counsel claim.
The disposition of a motion filed by a prisoner pursuant to § 2255 is
governed by the Rules Governing Section 2255 Proceedings (“§ 2255 Rules”).
Rule 4 of the § 2255 Rules authorizes a district court to order the United
States Attorney to respond to a § 2255 motion where it is not dismissed

following a preliminary review. Rule 4, § 2255 Rules. Among other things, the
United States must “address the allegations in the motion.” Rule 5, § 2255
Rules.
When a § 2255 movant alleges ineffective assistance of counsel relating
to certain decisions made during trial and direct appeal, the United States is
often unable to discern an explanation from the existing record. The court is
authorized to direct the parties to expand the record to include “answers
under oath to written interrogatories propounded by the judge[]” and
“[a]ffidavits[.]” Rule 7(b), § 2255 Rules. This procedure appears to be more
expeditious than engaging in broader, more formal discovery by leave of court.
See Rule 6, § 2255 Rules.
Here, Rodriguez-Magallon alleges his trial counsel was ineffective for
failing to advise him of the deportation consequences of a guilty plea to the
charge of illegal re-entry after deportation in violation of 8 U.S.C. § 1326(a).
The attorney-client privilege is waived when “a client calls into question the
competence of his attorney[.]” Tasby v. United States, 504 F.2d 332, 336 (8th
Cir. 1974). A brief affidavit of trial counsel as to this specific claim of
ineffective assistance of counsel raised by Rodriguez-Magallon would allow
the United States to provide a more complete response and, ultimately, assist
the court in its determination of the motion. Such a practice seems efficient
and cost effective, rather than engaging the discovery rules set out in the

2

Federal Rules of Civil Procedure. Additionally, this practice would not violate
defense counsel’s ethical obligations under the American Bar Association’s
(ABA) Model Rule 1.6 of Professional Conduct or the ABA’s Formal Opinion
10-456 because the disclosures by former counsel would be made in a setting
subject to judicial supervision. Therefore, it is
ORDERED that the United States’ motion for an order directing
Rodriguez-Magallon’s former trial counsel, William A. Delaney, to prepare an
affidavit in response to Rodriguez-Magallon’s motion (Docket 6) is granted.
The United States will serve Mr. Delaney with this opinion together with a
copy of Rodriguez-Magallon’s motion to vacate, set aside, or correct his
sentence.
IT IS FURTHER ORDERED that William A. Delaney will prepare an
affidavit addressing Rodriguez-Magallon’s claim that counsel was ineffective
for failing to advise him of the immigration related consequences of a guilty
plea, as required by Padilla v. Kentucky, 130 S. Ct. 1473 (2010). Mr. Delaney
will within 21 days following service of this order serve the government with
an affidavit addressing Rodriguez-Magallon’s claim. The affidavit will not
reveal matters protected by attorney-client privilege other than the specific
allegation contained in Rodriguez-Magallon’s motion. Any documents from
counsel’s files that bear on this allegation should be appended to the affidavit
executed by Mr. Delaney.

3

IT IS FURTHER ORDERED that after receiving the affidavit, the United
States will immediately serve the same on Rodriguez-Magallon and provide
the court with proof of service of the affidavit on him.
IT IS FURTHER ORDERED that the United States will have seven days
after the affidavit is provided to file its response to Rodriguez-Magallon’s
motion under § 2255.
Dated October 19, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

4