Cooper v. United States of America

Filing 132

ORDER granting in part and denying in part government's 131 MOTION for an Order Directing Movant to File a Privilege Waiver and an Order Directing Movants Former Counsel to Provide Information to the United States Concerning Movants Claim of I neffective Assistance of Counsel and an Abeyance as to Jack Deon Cooper; directing Lex Coleman and Jonathan Byrne, AFPD's to file affidavits responding only to movant's specific claims of ineffective assistance of counsel by 8/4/2014; direc ting that the attorney-client privilege, which attaches to the communications between Movant and his former counsel, 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; directing government to file response to movant's 2255 motion by 8/18/2014; movant's reply due 9/18/2014. Signed by Magistrate Judge Dwane L. Tinsley on 7/7/2014. (cc: attys; FPD, Movant) (sak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
JACK DEON COOPER,
Movant,
v.

Case No. 2:12-cv-09105
Case No. 2:10-cr-00124

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. 131). For the reasons that follow, it is
hereby ORDERED that the United States’ Motion (ECF No. 131) is GRANTED IN
PART and DENIED IN PART.
I.

PROCEDURAL HISTORY

On February 1, 2011, Movant, was sentenced to 96 months in prison, followed by
a three-year term of supervised release, resulting from his conviction, after a guilty plea
to one count of distribution of oxycodone, in violation of 21 U.S.C. § 841(a)(1). ECF No.
67, Judgment). Movant’s appeal was unsuccessful. United States v. Cooper, 445 Fed.
Appx. 710 (4th Cir. 2011). (ECF Nos. 86-89). On January 9, 2012, the Supreme Court
denied the Movant’s Petition for a Writ of Certiorari. Cooper v. United States, 132 S. Ct.

1069 (2012). Movant is currently incarcerated at the Federal Correctional Institution
(FCI) McKean, located in Bradford, Pennsylvania.
On December 17, 2012, Movant filed the instant Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 115). In the motion, Movant
alleges, inter alia, that he received ineffective assistance of counsel when his trial
counsel, Lex Coleman, failed to mount a proper objection at sentencing to various
factors implicating Movant’s guideline calculation. (ECF No. 115, Ground Two). The
Movant further asserts that he received ineffective assistance of counsel on appeal
because his appellate counsel, Jonathan Byrne, submitted a brief to the court of appeals
without Movant’s consent, prejudicially asserted in the appellate brief, over the
Movant’s objection, that the Movant agreed to deliver $5,000 to an unknown individual,
and generally failed to communicate with Movant during the appeal process. (Id.,
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. 126). On June 24, 2014,
the undersigned granted the United States an extension of time until July 10, 2014 to
file a response to the Movant’s section 2255 motion. (ECF No. 130). The United States
now seeks an Order directing Movant to file a waiver of the attorney-client privilege and
an Order directing Messrs. Coleman and Byrne 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.

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II.

ANALYSIS

In considering the United States’ motion, the Court must take into account the
professional and ethical responsibilities of Movant’s attorneys, as well as the obligation
of the Court to ensure a fair, orderly, and efficient judicial proceeding. Obviously,
Messrs. Coleman and Byrne have 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:
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
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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
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
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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 Messrs. Coleman and
Byrne may, without violating the applicable Rules of Professional Conduct, disclose
information in this proceeding regarding his communications with Movant to the extent
reasonably necessary to comply with an order of this Court or to respond to the
allegations of ineffective representation.
Having addressed the professional responsibilities of Messrs. Coleman and
Byrne, 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
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).

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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.
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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.
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, affidavits submitted by Messrs.
Coleman and Byrne would be useful to the Court. Moreover, such affidavits 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. 131-1) 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. 131-2) is GRANTED to the extent
that Messrs. Coleman and Byrne are ORDERED to file affidavits responding only to
Movant’s specific claims of ineffective assistance of counsel by August 4, 2014. The
affidavits shall include all of the information each attorney believes is necessary to fully
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respond to the claims and shall include as attachments copies of any documents from
his file that each attorney 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 each
attorney’s representation of Movant, the attorney may redact them. In preparing the
affidavit and attachments, counsel should disclose only that information reasonably
necessary to ensure the fairness of these proceedings.
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 his former counsel, shall not be deemed
automatically waived in any other Federal or State proceeding by virtue of the aboveordered disclosure in this section 2255 proceeding. The affidavit and documents
supplied by Movant’s former counsel shall be limited to use in this proceeding, and the
United States is prohibited from otherwise using the privileged information disclosed by
Movant’s former counsel without further order of a court of competent jurisdiction or a
written waiver by Movant.
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Finally, it is hereby ORDERED that the United States’ motion for an abeyance
(ECF No. 131-3) is GRANTED.

It is further ORDERED that the United States’

response to Movant’s section 2255 motion shall be filed by August 18, 2014, and
Movant’s reply shall be filed by September 18, 2014.
The Clerk is instructed to provide a copy of this Order to Movant, counsel of
record, and Messrs. Lex Coleman and Jonathan Byrne, Assistant Federal Public
Defenders.
ENTER:

July 7, 2014

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