Walking Eagle v. United States of America

Filing 25

ORDER denying 10 Motion for Leave to ; denying 10 Motion for Hearing; denying 14 Motion for Leave to ; granting 19 Motion; denying 22 Motion to Appoint Counsel ; denying 22 Motion; denying 23 Motion for Sanctions. Signed by US Magistrate Judge Veronica L. Duffy on 07/15/2011. (HK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION

KEVIN WALKING EAGLE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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CIV. 11-5016

ORDER GRANTING
GOVERNMENT’S RENEWED
MOTION FOR ORDER DIRECTING
AFFIDAVIT RESPONSE
[DOCKET NO. 19]
& DENYING PETITIONER’S
MOTIONS FOR LEAVE TO
CONDUCT DISCOVERY OR AN
EVIDENTIARY HEARING,
APPOINTMENT OF COUNSEL, &
SANCTIONS
[DOCKET NOS. 10, 14, 22, 23]

INTRODUCTION
This matter is before the court on Petitioner Kevin Walking Eagle’s motion
to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. See
Docket No. 1. On May 31, 2011, the district court, the Honorable Chief Judge
Karen E. Schreier, referred Mr. Walking Eagle’s case to this magistrate judge,
pursuant to 28 U.S.C. § 636(b)(1)(B). See Docket No. 16.
BACKGROUND
There are five motions currently pending before the court. On April 25,
2011, Mr. Walking Eagle filed a motion for leave to conduct discovery, or in the
alternative, to conduct an evidentiary hearing. Docket No. 10. His motion

challenges the factual basis surrounding his underlying guilty plea and
criminal conviction under 21 U.S.C. § 848 for engaging in a continuing
criminal enterprise. He seeks affidavits from his former co-defendants, which
he asserts would invalidate his conviction. Id. In the alternative, he requests
that the court schedule an evidentiary hearing, at which his former codefendants would be called to testify about Mr. Walking Eagle’s role in the
continuing criminal enterprise to which he pleaded guilty. Id. In support of
his request, he cites Rules 6, 7, and 8 of the Rules Governing § 2255
Proceedings (“§ 2255 Rules”). He asserts that Rules 6-8 authorize the discovery
he seeks, expansion of the record, and an evidentiary hearing “to establish
facts that are in controversy.” Docket No. 10, at 2.
On May 19, 2011, Mr. Walking Eagle filed an identical motion for leave to
conduct discovery, or in the alternative, to conduct an evidentiary hearing.
Docket No. 14.
On the same date, the government filed a motion for an order directing
Mr. Walking Eagle’s former counsel, Terry Pechota and Monica Colbath, to
submit affidavits in response to the petitioner’s claims of ineffective assistance
of counsel. See Docket No. 15. This court denied the government’s motion
without prejudice, on the basis that the motion was unaccompanied by a brief
with argument or citations to legal authority. Docket No. 17. The court also
noted that neither Mr. Pechota nor Ms. Colbath had been served with copies of

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the government’s motion, and directed the government to serve each attorney
with a copy of the motion, if such motion was later renewed. Id.
On June 10, 2011, the government renewed its motion for an order
directing Mr. Pechota and Ms. Colbath to respond to the claims of ineffective
assistance of counsel in the § 2255 petition.1 Docket No. 19. The motion
requests the court’s determination that the very nature of Mr. Walking Eagle’s
claims of ineffective assistance of counsel effects a waiver of the attorney-client
privilege, which in turn would permit Mr. Pechota and Ms. Colbath to respond
by affidavits to the specific claims of ineffective assistance in the habeas
petition. Id.
The government indicates its opposition to Mr. Walking Eagle’s two
identical motions for discovery or an evidentiary hearing, on grounds that the
affidavit procedure it requests is a more expeditious, efficient method by which
the court can evaluate the claims of ineffective assistance of counsel in the
habeas petition. See Docket No. 20, at 2, n.1.
Mr. Walking Eagle’s response to the government’s renewed motion is
styled as a “motion in opposition of [government’s] renewed motion for order
directing affidavits, and opposing [defendant’s] request for an evidentiary
hearing.” Docket No. 22. He opposes the government’s renewed motion, based

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Both Mr. Pechota and Ms. Colbath were served with a copy of the
government’s renewed motion, but neither has responded.
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on his belief that if the motion is granted, the government will unfairly develop
the facts in the light most favorable to its position. See Docket No. 22.
Mr. Walking Eagle renews his motion for an evidentiary hearing, so that he
may have an opportunity to develop the facts of his case according to his own
interests. Id. He also renews his request in the alternative for leave to “develop
interrogatories to lead the fact development, instead of the Government.” Id.
He also moves the court to appoint counsel for him, pursuant to Rule 8 of the
§ 2255 Rules. Id.
The fifth and final motion pending before the court is Mr. Walking Eagle’s
motion for sanctions against the government. Docket No. 23. He invokes
Federal Rule of Civil Procedure 11(c)(1) and (2) in support of his position that
sanctions are justified due to the government’s “grossly negligent” failure to
properly serve papers. Id. Specifically, he states that the government’s first
motion for affidavits (which the court denied) was never served on him or on
former counsel. He alleges that the government is failing to mark documents
mailed to him as “legal mail,” which causes the mail to be processed by the
Bureau of Prisons more slowly as regular mail. Id. at 2.
On July 1, 2011, the government submitted a memorandum in response
to the various motions filed by Mr. Walking Eagle. Docket No. 24. The
government again indicated its position that submission of affidavits from
former counsel is a more expeditious means than engaging in formal discovery.

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Id. at 1. The government asserts that any ruling on the motions for discovery
or an evidentiary hearing would be premature at this time, since the court
must first consider the original § 2255 petition and the government’s formal
answer before it can determine whether discovery or an evidentiary hearing is
warranted. Id. at 2. The government asserts that sanctions are not warranted
because Mr. Walking Eagle has not shown that he was prejudiced by any delay
in receipt or failure to receive any documents. Id. The government requests
that the court hold the various motions in abeyance until the government is
able to answer the initial § 2255 motion, which it asserts it is not fully able to
do until the court rules on the motion for an order directing former counsel to
submit affidavits.
DISCUSSION
A.

Rules Governing § 2255 Proceedings
Congress has promulgated specific rules, proposed by the United States

Supreme Court, which are applicable to § 2255 proceedings in the United
States District Courts. See “Rules Governing Section 2255 Proceedings for the
United States District Courts,” Pub. L. No. 94-426, § 1, 90 Stat. 1334 (effective
Feb. 1, 1977, as amended in 1979, 1982, 1993, 2004, and 2009) (Ҥ 2255
Rules”). The rules authorize the court to conduct a preliminary review of the
§ 2255 motion and the attached exhibits to determine whether it plainly
appears that the moving party is not entitled to relief. § 2255 Rules, Rule 4(b).

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If the motion cannot be dismissed based on the court’s initial review, “the judge
must order the United States attorney to file an answer, motion, or other
response within a fixed time, or to take other action the judge may order.” Id.
Where the court has directed the government to answer the habeas petition,
the government’s answer “must address the allegations in the motion.” § 2255
Rules, Rule 5(a) and (b). Rule 6 states that “[a] judge may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Criminal
Procedure or Civil Procedure, or in accordance with the practices and principles
of law.” Where necessary for effective discovery, the court may appoint counsel
to assist the movant, if the movant qualifies under 18 U.S.C. § 3006A. See Rule
6(a). Where the moving party requests discovery, as Mr. Walking Eagle has, he
must provide reasons for his request and include any proposed interrogatories
and requests for admission. Rule 6(b).
Rule 7 concerns expansion of the record where the § 2255 motion is not
initially dismissed. The court may direct the parties to expand the record “by
submitting additional materials relating to the motion.” § 2255 Rules, Rule
7(a). Rule 7(b) denotes some of the specific types of materials that the court
may require, including “letters predating the filing of the motion, documents,
exhibits, and answers under oath to written interrogatories propounded by the
judge. Affidavits also may be submitted and considered as part of the record.”
§ 2255 Rules, Rule 7(b).

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After receiving any additional information submitted under Rule 7, the
court “must review the answer, any transcripts and records of prior
proceedings, and any materials submitted under Rule 7 to determine whether
an evidentiary hearing is warranted.” § 2255, Rule 8(a). Under Rule 8, the
court should have the benefit of the government’s answer before ordering an
evidentiary hearing on the motion.
Mr. Walking Eagle has not complied with Rule 6. Rule 6 states that the
party requesting discovery must include his proposed interrogatories and
requests for admission. § 2255 Rules, Rule 6(b). Mr. Walking Eagle has not
submitted the interrogatories he seeks to serve on either his former codefendants or former counsel. On this basis, the motion for leave to conduct
discovery is denied.
It is clear that under the rules governing § 2255 proceedings, particularly
Rule 7(b), affidavits are generally a proper source of evidence for the court’s
consideration. It is equally clear that before the court can properly determine
that an evidentiary hearing is justified in this case, the court must review the
government’s answer and other materials. § 2255 Rules, Rule 8(a). The
government has indicated that in order to fully and properly answer the
allegations contained in Mr. Walking Eagle’s motion, the affidavits of both
Mr. Pechota and Ms. Colbath are necessary. See Docket No. 20. Therefore, the
remaining inquiry as to the government’s motion for affidavits is whether the

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nature of Mr. Walking Eagle’s claims operate as a waiver of the attorney-client
privilege and permit the court to direct his former counsel to submit affidavits
under Rule 7 or any other authority.
B.

Whether Mr. Walking Eagle’s Claims Effect a Waiver of the AttorneyClient Privilege
Mr. Walking Eagle’s habeas petition asserts five grounds for relief.

Docket No. 1. Two of those claims are that he received ineffective assistance of
counsel, in violation of the Sixth Amendment. In Ground One, he asserts that
his trial attorney, Ms. Colbath, failed to file a direct appeal on his behalf, even
though he directed her to do so. Id. at 5. In Ground Five, he asserts a
collective claim that his former attorneys failed to present a coherent or unified
strategy; failed to object to the magistrate’s report and recommendation from
the suppression hearing; failed to request a Franks hearing; failed to correct
facts introduced as evidence; failed to ensure he didn’t receive a life sentence;
allowed the prosecutor to “badger,” harass, threaten, and lie to him; failed to
properly review and object to his presentence investigation report; failed to call
his brother to testify; and permitted him to plead guilty to a conspiracy charge
for which there was an insufficient factual basis. Id. at 7.
The government asserts that the circumstances which led to Mr. Walking
Eagle’s claims that he received constitutionally deficient assistance of counsel
are “uniquely within counsels’ knowledge” and that a limited affidavit from
each attorney would explain each attorney’s decisions with respect to the
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handling of Mr. Walking Eagle’s case. Docket No. 20, at 2-3. The government
asserts that the submission of affidavits is a more efficient and cost-effective
practice than engaging the discovery rules and holding an evidentiary hearing.
Id. at 3.
The government cites several cases indicating that various Courts of
Appeals, including the Eighth Circuit, as well as district courts within the
Eighth Circuit, have held that a habeas petitioner’s claim that he received
ineffective assistance impliedly waives the attorney-client privilege with respect
to those attorney-client communications which are necessary to prove or
disprove his claim. Docket No. 20, at 3 (quoting United States v. Pinson, 584
F.3d 972, 977-78 (10th Cir. 2009); Tasby v. United States, 504 F.2d 332, 336
(8th Cir. 1974); Nelson v. United States, No. 4:04-CV-8005-FJG, 2010 WL
3398791, at *1 (W.D. Mo. Aug. 24, 2010) (slip copy)). The government cites
four additional district court opinions, each of which directed former counsel to
provide affidavits or answer questions regarding allegations of ineffective
assistance in a § 2255 petition. Docket No. 20, at 4 n.2 (citing Dible v. United
States, No. C09-4065-LRR, 2010 WL 2652202, at *2 (N.D. Iowa Jun. 28, 2010);
Clock v. United States, No. 09-CV-379-JD, 2010 WL 890445, at *2 (D.N.H.
Mar. 8, 2010); Hayes v. United States, No. 4:09-CV-531 CDP, 2009 WL
2071244, at *1 (E.D. Mo. Jul. 13, 2009); and United States v. Lossia, No. 0480422, 2008 WL 192274, at *2 (E.D. Mich. Jan. 23, 2008)). In each of these

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cases, the courts limited the extent of the waiver of the attorney-client privilege
to the specific issues raised in the habeas petition.
Mr. Walking Eagle opposes the government’s renewed motion for
affidavits. Docket No. 22. He asserts that if the government is permitted to
“lead the fact development,” inquiry will be made of only those issues which
benefit the government, rather than the issues which Mr. Walking Eagle
believes would support his best interests. Id. at 3. He states his belief that
“Government-led fact-finding” by way of affidavits from former counsel is “least
effective for determining the truth and the most self-serving” to the
government. Id. He cites no legal authority indicating whether, or why, the
submission of affidavits is improper. He does not indicate his position
regarding whether the attorney-client privilege with respect to his former
counsel has been waived by implication.
As the government has indicated in its brief, there is ample authority in
the Eighth Circuit and other Circuit Courts of Appeals, as well as district court
decisions within the Eighth Circuit, affirming that it is proper in the present
circumstances for the court to order former counsel to submit their respective
affidavits so that the government may fully answer the allegations that counsel
provided constitutionally deficient assistance. The case law supports the
government’s position that the allegations made by Mr. Walking Eagle impliedly
waived the attorney-client privilege, to the extent of the specific allegations

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made about counsel’s representation of him. See Pinson, 584 F.3d at 977-78;
Tasby, 504 F.2d at 336; Nelson, 2010 WL 3398791, at *1; Dible, 2010 WL
2652202, at *2; Clock, 2010 WL 890445, at *2; Hayes, 2009 WL 2071244, at
*1; and Lossia, 2008 WL 192274, at *2. Accordingly, the government’s renewed
motion for an order directing former counsel to submit affidavits is granted.
Counsel shall tailor their respective affidavits to include only that information
which is responsive to Mr. Walking Eagle’s claims of ineffective assistance of
counsel. Communications outside the scope of Mr. Walking Eagle’s specific
allegations of ineffective assistance of counsel, or information which is not
helpful to the court’s consideration of these claims, should not be disclosed by
Mr. Pechota or Ms. Colbath.
C.

Whether Mr. Walking Eagle is Entitled to Appointed Counsel
Habeas litigants are not constitutionally entitled to court-appointed

counsel. Phelps v. United States Federal Government, 15 F.3d 735, 737 (8th
Cir. 1994) (citing Cornman v. Armontrout, 959 F.2d 727, 720 (8th Cir. 1992)).
When considering a motion for appointed counsel in a § 2255 proceeding, the
court should determine “whether the nature of the litigation is such that
plaintiff as well as the court will benefit from the assistance of counsel.”
Abdullah v. Gunter, 949 F.2d 1032, 1035 (8th Cir. 1991) (quoting Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003, 1005 (8th Cir. 1984)). The court
must consider a number of additional factors as well, including “the factual

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complexity of the case, the ability of the indigent to investigate the facts, the
existence of conflicting testimony, the ability of the indigent to present his
claim and the complexity of the legal issues.” Johnson v. Williams, 788 F.2d
1319, 1322-23 (8th Cir. 1986).
The fact that Mr. Walking Eagle is a federal prisoner is merely one factor
for the court’s consideration in determining whether appointment of counsel
will benefit the litigant and the court. However, the issues presented in his
petition are neither factually nor legally complex. His habeas petition has–so
far–ably presented his claims. At this juncture, Mr. Walking Eagle has not met
the standard for showing that the assistance of counsel is warranted in his
case.
The court notes that until it has the benefit of the government’s answer
to the petition, counsel’s affidavits, and Mr. Walking Eagle’s reply brief, the
court cannot determine whether an evidentiary hearing is warranted. If the
court determines that an evidentiary hearing is warranted, Rule 8(c) requires
that the court appoint an attorney for Mr. Walking Eagle if he qualifies for
appointment of counsel under 18 U.S.C. § 3006A. See § 2255 Rules, Rule 8(c).
Appointment of counsel is not warranted at this stage of the litigation, because
the government has yet to file its formal answer to the habeas petition.

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D.

Sanctions
Federal Rule of Civil Procedure 11(c) permits the court to award

sanctions against a party where the court finds that a party has violated Rule
11(b). Rule 11(b) concerns representations to the court, and provides:
By presenting to the court a pleading, written motion, or
other paper--whether by signing, filing, submitting, or later
advocating it--an attorney or unrepresented party certifies that to
the best of the person's knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase the
cost of litigation;
(2) the claims, defenses, and other legal contentions are
warranted by existing law or by a nonfrivolous argument for
extending, modifying, or reversing existing law or for establishing
new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after a
reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on
belief or a lack of information.
Fed. R. Civ. P. 11(b).
The motion for sanctions must “describe the specific conduct that
allegedly violates Rule 11(b).” Mr. Walking Eagle’s motion for sanctions does
not cite Rule 11(b), but he indicates that the motion is based on untimely or
nonexistent service of process on him and on his former counsel.

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There is no allegation in Mr. Walking Eagle’s motion for sanctions that
the government presented any submission to the court for an improper
purpose; that the legal contentions made by the government are unwarranted
by existing law or are frivolous; or that any denials of factual contention are not
warranted on the evidence. Under only the broadest possible construction,
Mr. Walking Eagle’s complaint that the government failed to effectuate proper
service on the petitioner on one occasion may be considered an allegation that
the government made a factual contention without evidentiary support, under
Rule 11(b)(3). However, the court declines to address the merits of Mr. Walking
Eagle’s motion for sanctions, because his motion is foreclosed by his failure to
comply with Rule 11's twenty-one day “safe harbor” provision. See Fed. R. Civ.
P. 11(c)(2).
Under Rule 11(c)(2), a motion for sanctions “must be served under Rule
5, but it must not be filed or be presented to the court if the challenged paper,
claim, defense, contention, or denial is withdrawn or appropriately corrected
within twenty-one days after service or within another time the court sets.” Id.
The twenty-one day period is “intended to provide a type of ‘safe harbor’ against
motions under Rule 11 in that a party will not be subject to sanctions on the
basis of another party’s motion unless, after receiving the motion, it refuses to
withdraw that position or to acknowledge candidly that it does not currently
have evidence to support a specified allegation.” Gordon v. Unifund CCR

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Partners, 345 F.3d 1028, 1029 (8th Cir. 2003) (quoting Fed. R. Civ. P. 11,
Advisory Committee Notes (1993 Amendments) (emphasis in original quote)
(rejecting Rule 11 sanctions where party seeking sanctions failed to serve a
prepared motion on the offending party prior to making any request for
sanctions to the court)).
Here, the government’s original motion for an order directing affidavits
was filed on May 19, 2011. See Docket No. 15. The court disposed of the
motion on June 2, 2011, after the motion was pending for thirteen days. The
court has no indication that Mr. Walking Eagle served government counsel
with a motion for sanctions within that time frame, such that the government
could properly effect service of the motion upon Mr. Walking Eagle or withdraw
the motion. See, e.g., Mortice v. Providian Financial Corp., 283 F. Supp. 2d
1084, 1087 (D.Minn. 2003). Therefore, a motion for sanctions based on the
government’s initial motion for affidavits was foreclosed as moot by no later
than June 2, 2011, when the court denied the motion.
The government filed its renewed motion for affidavits on June 10, 2011.
The motion indicated through a properly-executed certificate of service that
Mr. Walking Eagle was served by first-class mail on the same date. See Docket
No. 19. Mr. Walking Eagle filed his motion for sanctions on June 24, 2011,
twenty-two days after the original motion had already been dismissed. There
was no opportunity for the government to take corrective action with respect to

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the original motion, as it was no longer before the court. There has been no
allegation that the renewed motion for affidavits was not properly served on
Mr. Walking Eagle. Party-initiated motions for sanctions under Rule 11 must
comply with the rule’s “safe harbor” provision. See MHC Inv. Co. v. Racom
Corp., 323 F.3d 620, 623 (8th Cir. 2003). Therefore, an award of sanctions is
not warranted, based on Mr. Walking Eagle’s noncompliance with Rule 11.
As a final matter, the court will address two additional assertions made
in Mr. Walking Eagle’s motion for sanctions. It should be noted that
Mr. Walking Eagle’s former counsel are not parties to this action, so service on
them of the government’s original motion for affidavits was not required of the
government under Rule 5. See Fed. R. Civ. P. 5(a). The court granted leave for
the government to renew the motion and directed that both attorneys be served
with the renewed motion, if one was made, in order that each would have
notice of the pending motion and an opportunity to respond, if either wished to
do so. The failure to serve a non-party to a civil action is not a recognized basis
for an award of sanctions under Federal Rules of Civil Procedure 5 and 11.
As to Mr. Walking Eagle’s complaints that he has not received documents
in a timely fashion, the court notes that when documents are mailed to a
party’s last known address, “service is complete upon mailing.” Fed. R. Civ. P.
5(b)(2)(C). Unfortunately, the government attorneys who file pleadings in this

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case via first-class mail have no control over the Bureau of Prison’s mail
sorting facility or the time within which Mr. Walking Eagle receives his mail.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the government’s motion for an order directing Mr. Terry
Pechota and Ms. Monica Colbath to prepare affidavits in response to petitioner
Ken Walking Eagle's petition [Docket No. 19], is granted. The government shall
serve Mr. Pechota and Ms. Colbath with this opinion together with a copy of
Mr. Walking Eagle’s petition. It is further
ORDERED that Mr. Pechota and Ms. Colbath shall, within 21 days
following service upon them of this order, serve the government with affidavits
addressing Mr. Walking Eagle's allegations of ineffective assistance of counsel
as set forth in grounds 1 and 5 of the petition. It is further
ORDERED that the government shall file its response, either by answer
or motion, to Mr. Walking Eagle’s petition within 14 days after receipt of the
latest-received affidavit from Mr. Pechota and Ms. Colbath. It is further
ORDERED that Mr. Walking Eagle's motion for court-appointed counsel
[Docket No. 22], is denied without prejudice. It is further
ORDERED that Mr. Walking Eagle's motions for leave to conduct
discovery and for an evidentiary hearing [Docket Nos. 10, 14, and 22], are all
denied without prejudice. Finally, it is

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ORDERED that Mr. Walking Eagle's motion for sanctions [Docket No.
23], is denied.
Dated July 15, 2011.

BY THE COURT:
/s/

Veronica L. Duffy

VERONICA L. DUFFY
UNITED STATES MAGISTRATE JUDGE

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