Chavez-Cruz v. United States of America

Filing 11

ORDER granting 7 Motion to Extend Deadlines; granting 7 Motion for Affidavit from Michael W. Hanson. Signed by US Magistrate Judge Veronica L. Duffy on 11/17/2016. (Attachments: # 1 waiver) (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ESTEBAN CHAVEZ-CRUZ,

4:16-CV-04157-KES

Movant,
ORDER

vs.
UNITED STATES OF AMERICA,
Respondent.

This matter is before the court on movant Esteban Chavez-Cruz’s motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. In his
motion, Mr. Chavez-Cruz makes a claim for relief based upon the allegedly
ineffective assistance of counsel he received from his former defense counsel,
Michael W. Hanson. See Docket 1, 3 and 4. The United States of America
(government) has requested an order directing former defense counsel to file an
affidavit responding to Mr. Chavez-Cruz’s claims of ineffective assistance as set
forth in his motion. See Docket No. 7.
The Eighth Circuit Court of Appeals 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 “courtsupervised testimony.” ABA Comm. on Eth. and Prof'l Responsibility, Formal Op.
10-456 (July 14, 2010).
In consideration of the allegations set forth in Mr. Chavez-Cruz’s motion
under 28 U.S.C. § 2255, this court has determined that the government cannot
respond to the allegations of ineffective assistance of counsel without attorney
Michael W. Hanson responding by affidavit to the specific allegations in the motion
concerning his representation of Mr. Chavez-Cruz. If Mr. Chavez-Cruz 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 government’s motion (Docket No. 7) directing former defense
counsel to respond is granted as follows:
A.

That the clerk shall send this order and the attached attorneyclient privilege waiver form to Mr. Chavez-Cruz;

B.

That if the attorney-client privilege waiver form is not signed
and returned to the clerk for filing within 21 days, the
allegations of ineffective assistance of counsel will be stricken
from Mr. Chavez-Cruz’s motion under 28 U.S.C. § 2255;
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C.

That if the attorney-client privilege waiver form is signed and
filed, the government shall forward a copy of the signed
attorney-client privilege waiver form to Michael W. Hanson,
along with a copy of this order and Mr. Chavez-Cruz’s motion
and supplements pursuant to § 2255 (Docket Nos. 1, 3 & 4).
Attorney Michael W. Hanson shall within 21 days of receiving
the attorney-client privilege waiver form provide and file with
the clerk an affidavit responding to the specific allegations in
the § 2255 motion concerning his representation of Mr. ChavezCruz.

D.

The government shall promptly thereafter serve a copy of
Mr. Hanson’s affidavit upon Mr. Chavez-Cruz.

2.

The government’s motion for extension of time (Docket No. 7) is
granted; the government shall file its response to Mr. Chavez-Cruz’s
motion no later than 30 days after the latter of the affidavits is
received from either Mr. Hanson or Mr. Eirinberg.

DATED this 17th day of November, 2016.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge

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