James T. Washington v. United States of America
Filing
57
MEMORANDUM OPINION AND ORDER granting in part and denying in part, as set forth more fully herein, the United States' 56 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 of Time to File Response; denying the Government's request for a written privilege waiver, directing movant's trial counsel, Mr. Lex Coleman, to file within 30 days from the date of this Order an affidavit responding only to movant's specific claims of ineffective assistance of counsel; the attorney-client privilege, which attaches to the communications betw een movant and Coleman, shall not be deemed automatically waived in any other Federal or State proceeding by virtue of the herein ordered disclosure in this § 2255 proceeding; granting the United States' motion for an abeyance; upon receipt of the affidavit and supporting documentation, if any, the undersigned will review the matter to determine whether an evidentiary hearing is necessary; upon completion of the review, the undersigned will issue an appropriate scheduling order. Signed by Magistrate Judge Cheryl A. Eifert on 6/10/2014. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JAMES T. WASHINGTON,
Movant,
v.
Case No.: 2:14-cv-13603
(Criminal Case No.: 2:12-cr-00187-1)
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 of Time to File Response. (ECF No. 56). For
the reasons that follow, the Court GRANTS the Motion, in part, and DENIES the
Motion, in part.
I.
OPINION
On December 19, 2012, Movant entered a guilty plea to one count of a three
count indictment involving the possession and distribution of a Schedule II
controlled substance. (ECF No. 34). He was sentenced to a total term of 216 months
of imprisonment followed by six years of supervised release. (ECF No. 44). Movant is
currently incarcerated at FCI Edgefield located in Edgefield, South Carolina.
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On March 31, 2014, Movant filed a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255, (ECF No. 52). In the motion, Movant alleges
that he received ineffective assistance of counsel when his lawyer, Mr. Lex Coleman
(“Coleman”), (1) advised him that an 851 sentence enhancement had already been
filed in his case relating to his prior state and federal convictions and this factored
into his decision to enter a plea of guilty; (2) advised him that he could not challenge
his prior convictions and warned him if he did not sign the plea agreement quickly,
the court would recommend a life sentence; and (3) failed to file an appeal despite
Movant’s express directions that Coleman do so. Consequently, the United States
filed the instant motion requesting the Court to direct Movant to file a waiver of the
attorney-client privilege that governed his communications with Coleman, arguing
that it requires access to this privileged information in order to respond to the
Movant’s motion.
When considering the United States’ motion, the Court takes 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.
Without a doubt, Coleman has a basic duty under any jurisdiction’s standards of
professional conduct to protect 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
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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 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
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parte meetings with the non-client party. Simply put, the filing of an ineffective
assistance of counsel claim does not operate as an unfettered waiver of all privileged
communications.
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 Coleman 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.
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Having addressed the professional responsibilities of Coleman, 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 workproduct 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.
Here, Movant intentionally waived in the § 2255 motion the attorney-client privilege
that attached to some of his communications with Coleman; for example, those
communications pertaining to his claim that he was advised by Coleman (1) that an
851 Sentence Enhancement had already been filed in his case prior to Movant signing
the plea agreement, (2) that Movant could not challenge his prior convictions, and (3)
that a delay in signing the plea agreement might result in a life sentence, as well as
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.” FRE 1101(e). See also U.S. v.
Torrez-Flores, 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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Movant’s claim that he told Coleman to file an appeal. Accordingly, in regard to any
such discussions, a subject matter waiver of the privilege attendant to those particular
communications should be permitted in fairness to the United States.
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; FRCP 26(c); and FRE 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. The
undersigned finds that an affidavit and any supporting documents submitted by
Coleman should supply the basic information required by the United States to allow it
to respond to Movant’s § 2255 motion and would be useful to the Court in resolving
the § 2255 motion while simultaneously ensuring a reasonable limitation on the
breadth of the waiver of the attorney-client privilege.
II.
ORDER
Therefore, for the forgoing reasons, the Court DENIES the Government’s
request for a written privilege waiver, but ORDERS Movant’s trial counsel, Mr. Lex
Coleman, to file within thirty (30) days from the date of this Order an affidavit
responding only to Movant’s specific claims of ineffective assistance of counsel. The
affidavit shall include all of the information Coleman believes is necessary to fully
respond to the claims and shall include as attachments copies of any documents from
his file specifically addressing the matters raised by Movant in his motion. To the
extent that these documents address other aspects of Coleman’s representation of
Movant, which are not pertinent to a resolution of the § 2255, Coleman may redact
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them. In preparing the affidavit and attachments, counsel should disclose only that
information reasonably necessary to ensure the fairness of these proceedings.
In addition, 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 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 § 2255 proceeding is entirely justified, because otherwise 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, the Court further ORDERS that the attorney-client privilege,
which attaches to the communications between Movant and Coleman, shall not be
deemed automatically waived in any other Federal or State proceeding by virtue of
the above-ordered disclosure in this § 2255 proceeding. The affidavit and documents
supplied by Coleman shall be limited to use in this proceeding, and Respondent is
prohibited from otherwise using the privileged information disclosed by Coleman
without further order of a court of competent jurisdiction or a written waiver by
Movant.
The Court GRANTS the United States’ motion for an abeyance. Upon receipt
of the affidavit and supporting documentation, if any, the undersigned will review the
matter to determine whether an evidentiary hearing is necessary. Upon completion of
the review, the undersigned will issue an appropriate scheduling order.
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The Clerk is instructed to provide a copy of this Order to Movant, counsel of
record, and Mr. Lex Coleman.
ENTERED: June 10, 2014
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