John Charles Wellman v. United States of America

Filing 190

MEMORANDUM OPINION AND ORDER: It is ORDERED that the United States' [189-1] Motion for a Written Privilege Waiver is DENIED. However, it is further ORDERED that the United States' [189-2] Motion for an Order Directing Movant's Former C ounsel to Provide Information to the United States Concerning Movant's Claim of Ineffective Assistance of Counsel is GRANTED to the extent that Movant's trial counsel, Mr. David Bungard, is ORDERED to file an affidavit by 7/2/2014. It is OR DERED that the attorney-client privilege, which attaches to the communications between Movant and Mr. Bungard, shall not be deemed automatically waived in any other Federal or State proceeding. Finally, it is hereby ORDERED that the United States 9; [189-3] Motion for an Abeyance is GRANTED. It is further ORDERED that the United States' response to Movant's Section 2255 Motion shall be filed by 7/16/2014, and Movant's reply shall be filed by 9/1/2014. Signed by Magistrate Judge Dwane L. Tinsley on 6/2/2014. (cc: Movant; counsel of record and Mr. David Bungard, Assistant Federal Public Defender) (arb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD
JOHN CHARLES WELLMAN,
Movant,
v.

Case No.: 1:13-cv-07949
Case No.: 1:08-cr-00043-01

UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending before the Court is the United States’ Motion for an Order Directing
Movant to File a Privilege Waiver and an Order Directing Movant’s Former Counsel to
Provide Information to the United States Concerning Movant’s Claim of Ineffective
Assistance of Counsel and an Abeyance (ECF No. 189). For the reasons that follow, it is
hereby ORDERED that the United States’ Motion (ECF No. 189) is GRANTED IN
PART and DENIED IN PART.
I.

PROCEDURAL HISTORY

On June 23, 2010, Movant, was sentenced to 300 months in prison, followed by a
life term of supervised release, resulting from his conviction, by a jury, on three charges
related to possession of child pornography. (ECF No. 160, Judgment). A fourth charge
of being a felon in possession of firearms was dismissed without prejudice by the United
States. (ECF Nos. 137, Notice of Dismissal and 138, Order Granting Leave for Filing
Notice of Dismissal Without Prejudice). Movant is currently incarcerated at the Federal
Correctional Institution (FCI) Petersburg (Low) located Petersburg, Virginia. Movant’s
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appeal of his conviction and sentences was unsuccessful. See United States v. Wellman,
663 F.3d 224 (2011).
On April 12, 2013, Movant filed the instant Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 185). In the motion, Movant
alleges, inter alia, that he received ineffective assistance of counsel when his trial
counsel, David Bungard, (1) advised him against entering into a plea agreement with the
government, (2) failed to make an argument as to sentence “stacking” in light of
Movant’s age and health, and (3) failed to argue that Title 18 of the United States Code is
unconstitutional. (ECF No. 185 at 4, Ground One).
On April 29, 2014, the undersigned directed the United States to file a response
to Movant’s section 2255 motion by June 12, 2014. (ECF No. 188). The United States
seeks an Order directing Movant to file a waiver of the attorney-client privilege and an
Order directing Mr. Bungard to provide relevant and necessary information directly
related to Movant’s ineffective assistance of counsel claims. The United States also
requests that the court hold this matter in abeyance until the court has ruled on the
motion and the waiver is filed or, in any event, grant an extension of time for the United
States to respond to the section 2255 motion until no earlier than July 11, 2014.
II.

ANALYSIS

In considering the United States’ motion, the Court must take into account the
professional and ethical responsibilities of Movant’s attorney, as well as the obligation of
the Court to ensure a fair, orderly, and efficient judicial proceeding. Obviously, Mr.
Bungard has a basic duty under any jurisdiction’s standards of professional conduct to
protect the Movant’s attorney-client privilege. Rule 83.7 of the Local Rules of this
District provides that:
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In all appearances, actions and proceedings within the jurisdiction of this
court, attorneys shall conduct themselves in accordance with the Rules of
Professional Conduct and the Standards of Professional Conduct
promulgated and adopted by the Supreme Court of Appeals of West
Virginia, and the Model Rules of Professional Conduct published by the
American Bar Association.
Both the Rules of Professional Conduct promulgated by the Supreme Court of Appeals
of West Virginia and the American Bar Association’s (“ABA”) Model Rules of
Professional Conduct address the confidentiality of information shared between an
attorney and his or her client. See West Virginia Rules of Professional Conduct 1.6 and
1.9(b); Model Rules 1.6 and 1.9(c). These rules substantially limit the circumstances
under which an attorney may reveal privileged communications without an express and
informed waiver of the privilege by the client.
Moreover, on July 14, 2010, the ABA’s Committee on Ethics and Professional
Responsibility issued Formal Opinion 10-456, entitled “Disclosure of Information to
Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel
Claim.” Although this opinion is not binding on the court, see, e.g., Jones v. United
States, 2012 WL 484663 *2 (E.D.Mo. Feb. 14, 2102); Employer’s Reinsurance Corp. v.
Clarendon Nat. Ins. Co., 213 F.R.D. 422, 430 (D. Kan 2003), it provides a reasoned
discussion of the competing interests that arise in the context of an ineffective assistance
of counsel claim and their impact on the continued confidentiality of attorney-client
communications.
In summary, the ABA acknowledges in the opinion that “an ineffective assistance
of counsel claim ordinarily waives the attorney-client privilege with regard to some
otherwise privileged information,” but cautions that this waiver does not operate to fully
release an attorney from his or her obligation to keep client information confidential

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unless the client gives informed consent for disclosure or disclosure is sanctioned by an
exception contained in Model Rule 1.6. After examining the various exceptions
contained in Model Rule 1.6, the ABA concludes that disclosure may be justified in
certain circumstances; however, any such disclosure should be limited to that which the
attorney believes is reasonably necessary and should be confined to “court-supervised”
proceedings, rather than ex parte meetings with the non-client party.
Upon examining the provisions of West Virginia’s Rule of Professional Conduct
1.6, the undersigned notes that 1.6(b)(2) permits a lawyer to “reveal such information
[relating to the representation of a client] to the extent the lawyer reasonably believes
necessary ...

to respond to allegations in any proceeding concerning the lawyer’s

representation of a client.” In the Comment that follows the Rule, the Supreme Court of
Appeals instructs the lawyer to “make every effort practicable to avoid unnecessary
disclosure of information relating to a representation, to limit disclosure to those having
the need to know it, and to obtain protective orders or make other arrangements
minimizing the risk of disclosure.” Ultimately, however, a lawyer must comply with
orders of a court of competent jurisdiction, which require the lawyer to disclose
information about the client. Similarly, Model Rule 1.6(b)(5) authorizes an attorney to
reveal information regarding the representation of a client to the extent the lawyer
reasonably believes necessary “to respond to allegations in any proceeding concerning
the lawyer’s representation of the client.” Furthermore, Model Rule 1.6(b)(6) explicitly
states that the lawyer may disclose such information “to comply with other law or a
court order.” In view of these provisions, the Court finds that Mr. Bungard may, without
violating the applicable Rules of Professional Conduct, disclose information in this
proceeding regarding his communications with Movant to the extent reasonably
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necessary to comply with an order of this Court or to respond to the allegations of
ineffective representation.
Having addressed the professional responsibilities of Mr. Bungard, the Court
turns to its authority and obligations. As previously noted, federal courts have long held
that when a “habeas petitioner raises a claim of ineffective assistance of counsel, he
waives the attorney-client privilege as to all communications with his allegedly
ineffective lawyer.” Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003).1
Subsequent to the opinion in Bittaker, Rule 502 of the Federal Rules of Evidence was
enacted to explicitly deal with the effect and extent of a waiver of the attorney-client
privilege in a Federal proceeding. Rule 502(a)2 provides in relevant part:
When the disclosure is made in a Federal proceeding or to a Federal office
or agency and waives the attorney-client privilege or work-product
protection, the waiver extends to an undisclosed communication or
information in a Federal or State proceeding only if: (1) the waiver is
intentional; (2) the disclosed and undisclosed communications or
information concern the same subject matter; and (3) they ought in
fairness to be considered together.
Nonetheless, the Court retains authority to issue a protective order governing
production of the privileged information, including the method by which the currently
undisclosed communications will be disclosed. See Rule 12, Rules Governing § 2255
Proceedings; Fed .R. Civ. P. 26(c); and Fed. R. Evid. 503(d); See also United States v.

See also United States v. Pinson, 584 F.3d 972 (10th Cir. 2009); In re Lott, 424 F.3d 446 (6th Cir.
2005); Johnson v. Alabama, 256 F.3d 1156 (11th Cir. 2001); Tasby v. United States, 504 F.2d 332 (8th
Cir. 1974); Dunlap v. United States, 2011 WL 2693915 (D.S.C.); Mitchell v. United States, 2011 WL
338800 (W.D. Wash).

1

The Federal Rules of Evidence are applicable in a § 2255 proceeding “to the extent that matters of
evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed
by the Supreme Court pursuant to statutory authority.” Fed. R. Evid. 1101(e). See also U.S. v. TorrezFlores, 624 F.2d 776 (7th Cir 1980); United States v. McIntire, 2010 WL 374177 (S.D. Ohio); Bowe v.
United States, 2009 WL 2899107 (S.D. Ga.); Rankins v. Page, 2000 WL 535960 (7th Cir.); Ramirez v.
United States, 1997 WL 538817 (S.D.N.Y). The statutes and rules governing § 2255 actions do not address
the assertion or waiver of the attorney-client privilege.
2

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Nicholson, 611 F.3d 191, 217 (4th Cir. 2010). Rule 7 of the Rules Governing Section 2255
Proceedings expressly authorizes the use of affidavits as part of the record. In order to
determine whether an evidentiary hearing is necessary, an affidavit submitted by Mr.
Bungard would be useful to the Court. Moreover, an affidavit and any supporting
documents should supply the basic information required by the United States to allow it
to respond to Movant’s section 2255 motion while simultaneously ensuring a reasonable
limitation on the breadth of the waiver of the attorney-client privilege.
III.

ORDER

Therefore, for the forgoing reasons, it is hereby ORDERED that the United
States’ Motion for a Written Privilege Waiver (ECF No. 189-1) is DENIED. However, it
is further ORDERED that the United States’ Motion for an Order Directing Movant’s
Former Counsel to Provide Information to the United States Concerning Movant’s
Claim of Ineffective Assistance of Counsel (ECF No. 189-2) is GRANTED to the extent
that Movant’s trial counsel, Mr. David Bungard, is ORDERED to file an affidavit
responding only to Movant’s specific claims of ineffective assistance of counsel by July
2, 2014. The affidavit shall include all of the information Mr. Bungard believes is
necessary to fully respond to the claims and shall include as attachments copies of any
documents from his file that Mr. Bungard believes to be relevant and necessary to a
determination of the specific claims of ineffective assistance of counsel raised by Movant
in his section 2255 motion. To the extent that any documents produced address other
aspects of Mr. Bungard’s representation of Movant, Mr. Bungard may redact them. In
preparing the affidavit and attachments, counsel should disclose only that information
reasonably necessary to ensure the fairness of these proceedings.

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Additionally, the undersigned finds that specific court-imposed limitations on the
use of the privileged information are necessary to protect Movant’s future interests. As
noted by the Fourth Circuit in United States v. Nicholson, supra, 611 F.3d at 217, citing
Bittaker v. Woodford, supra at 722-723 (9th Cir. 2003), a protective order prohibiting
the subsequent and unfettered use of privileged information disclosed in a section 2255
proceeding is entirely justified, because otherwise the movant would be forced to make a
painful choice between “asserting his ineffective assistance claim and risking a trial
where the prosecution can use against him every statement he made to his first lawyer”
or “retaining the privilege but giving up his ineffective assistance claim.” Accordingly, it
is hereby ORDERED that the attorney-client privilege, which attaches to the
communications between Movant and Mr. Bungard, shall not be deemed automatically
waived in any other Federal or State proceeding by virtue of the above-ordered
disclosure in this section 2255 proceeding. The affidavit and documents supplied by Mr.
Bungard shall be limited to use in this proceeding, and the United States is prohibited
from otherwise using the privileged information disclosed by Mr. Bungard without
further order of a court of competent jurisdiction or a written waiver by Movant.
Finally, it is hereby ORDERED that the United States’ motion for an abeyance
(ECF No. 189-3) is GRANTED.

It is further ORDERED that the United States’

response to Movant’s section 2255 motion shall be filed by July 16, 2014, and
Movant’s reply shall be filed by September 1, 2014.
The Clerk is instructed to provide a copy of this Order to Movant, counsel of
record, and Mr. David Bungard, Assistant Federal Public Defender.
ENTER:

June 2, 2014

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