Picardi v. United States of America

Filing 6

ORDER granting 3 Motion to Extend Deadlines; granting 3 Motion for Order Directing Former Defense Counsel to Respond to Claims of Ineffective Assistance. Signed by US Magistrate Judge Veronica L. Duffy on 7/27/2015. (Attachments: # 1 Waiver form - Ms. Culotta, # 2 Waiver form - Mr. Van Norman) (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
EDWARD J.S. PICARDI, M.D.,

5:15-CV-05050-JLV

Movant,
vs.
UNITED STATES OF AMERICA,

MEMORANDUM OPINION AND
ORDER RE: ATTORNEY-CLIENT
PRIVILEGE WAIVER AND
ORDER FOR EXTENSION

Respondent.
The government has requested an order directing former defense counsel
to respond to movant=s claims of ineffective assistance set forth in the
Mr. Picardi’s under 28 U.S.C. ' 2255. See Docket No. 3. Mr. Picardi responded
in opposition to that motion. See Docket No. 5.
Mr. Picardi moved for habeas relief on June 22, 2015, alleging various
claims of ineffective assistance of counsel. See Docket No. 1. This court
reviewed that motion and determined that relief was not plainly impossible
from the face of the complaint. See Docket No. 2. Accordingly, the court
ordered that the motion be served on respondent and that the respondent file
“an answer or responsive pleading to the motion, together with a legal brief or
memorandum,” prior to July 23, 2015. Id.
Mr. Picardi’s objection to the government’s motion requesting that the
court order former defense counsel to provide affidavits is strictly procedural—
he makes no argument concerning the substance of the issue presented (i.e.

whether former defense counsel can be required to provide affidavits or
whether the assertion of an ineffective assistance claim waives attorney-client
privilege). See Docket No. 5. Mr. Picardi argues that, at this juncture of the
case, the only permissible move for the government to make is to file an
answer. Mr. Picardi also argues that this court ordered the government solely
to file an answer. Mr. Picardi additionally asserts that no discovery is available
to the government save discovery allowed under the Federal Rules of Criminal
Procedure. Mr. Picardi is wrong on all counts.
After initial review, this court did not restrict the government to filing an
answer. Rather, this court directed the government to file an “answer or
responsive pleading” to Mr. Picardi’s § 2255 motion. See Docket No. 2
(emphasis added). This is in accordance with the rules governing the
procedures for § 2255 actions. Under Rule 4, the court may order the
government to “file an answer, motion, or other response” within a particular
time. The court allowed the government in this instance to decide whether to
file an answer or some other type of responsive pleading. Furthermore,
Mr. Picardi is wrong about the types of discovery and evidence that may be
pursued and considered in a habeas matter.
Rule 6 provides that the court may authorize a party to conduct
discovery under either the Federal Rules of Criminal Procedure (which
Mr. Picardi acknowledges), or under the Federal Rules of Civil Procedure, or
presumably both. In addition, Rule 7 directs that, if the court does not dismiss
the motion after initial review, the court may direct the parties to expand the
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record by submitting additional materials relating to the motion. Affidavits are
specifically among those pleadings the court may consider as part of the record
under Rule 7.
Here, Mr. Picardi’s motion raises many issues of claimed ineffective
assistance of counsel. See Docket No. 1. 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 Acourt-supervised 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. Picardi’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 attorneys
Jessica Hinkebein Culotta and Robert Van Norman responding by affidavit to
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the specific allegations in the motion concerning their representation of
Mr. Picardi. If Mr. Picardi 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 Mr. Picardi’s motion under 28 U.S.C. ' 2255.
In addition, the government’s point regarding Mr. Picardi’s current
counsel’s involvement in the underlying direct appeal is well taken. Although
Mr. Picardi argues that his trial counsel, Ms. Culotta and Mr. Van Norman,
were ineffective for failing to create a record on certain issues, nevertheless
Mr. Murphy, who handled the direct appeal and who appears as counsel in this
§ 2255 motion, was not precluded from raising these issues on appeal. The
result of any failure of trial counsel would simply affect the standard of review
on appeal, not whether the issue could be raised on appeal.
Mr. Picardi argues that the present procedure sought by the government
has never been approved (or disapproved) by the Eighth Circuit. The court
agrees. However, the procedure is not forbidden by the applicable rules
governing § 2255 actions, appears to be allowable under those rules, and is an
efficient and direct way for both parties and the court to cut to the meat of this
matter and present the facts and law with regard to the issues raised by
Mr. Picardi. Accordingly, the court will grant the government’s motion.
IT IS ORDERED:
1.

The respondent=s motion [Docket No. 3] directing former defense
counsel to respond is granted as follows:

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A.

That counsel for Mr. Picardi shall send this Order and the
attached two Attorney-Client Privilege Waiver forms to Mr.
Picardi;

B.

That if the Attorney-Client Privilege Waiver forms are not
signed and returned to the Clerk for filing within 30 days,
the allegations of ineffective assistance of counsel will be
stricken from Mr. Picardi’s motion under 28 U.S.C. ' 2255;

C.

That if the Attorney-Client Privilege Waiver forms are signed
and filed, the Government shall forward a copy of the signed
Attorney-Client Privilege Waiver forms to Attorney Jessica
Hinkebein Culotta and Robert Van Norman, along with a
copy of this Order and Mr. Picardi=s ' 2255 Motion.
Ms. Culotta and Mr. Van Norman shall within 30 days of
receiving the Attorney-Client Privilege Waiver forms provide
and file with the Clerk an affidavit responding to the specific
allegations in the ' 2255 Motion concerning their
representation of Mr. Picardi.

D.

That counsel for Mr. Picardi shall promptly thereafter serve a
copy of Ms. Culotta and Mr. Van Norman’s affidavits upon
Mr. Picardi.

2.

The respondent=s motion for extension is granted and the
government shall file its response to Mr. Picardi’s motion no later
than 30 days after Ms. Culotta and Mr. Van Norman=s affidavits
have been received.

3.

Mr. Picardi shall file with the court within 30 days of the date of
this order a statement clarifying whether any of his claims of
ineffective assistance of counsel concern Mr. Murphy’s handling of
his direct appeal. If Mr. Murphy’s conduct in the direct appeal is
implicated by Mr. Picardi’s § 2255 motion, the court will entertain
further briefing from both parties concerning whether Mr. Murphy
should continue to represent Mr. Picardi in this matter.

Dated this 27th day of July, 2015.
BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge
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