Underwood v. United States of America

Filing 73

MEMORANDUM OPINION AND ORDER granting in part and denying in part government's 72 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 Ineffective Assistance of Counsel and an Abeyance of Time to File Response. Signed by Magistrate Judge Cheryl A. Eifert on 5/4/2018. (cc: attys; any unrepresented party) (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
JOHN MARSHALL UNDERWOOD, JR.,
Movant,
v.

Case No.: 2:18-cv-00671
Criminal No.: 2:17-cr-00029

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. 72). For the
reasons that follow, the Court GRANTS the Motion, in part, and DENIES the Motion,
in part.
I.

OPINION
On April 26, 2018, Movant filed a Motion to Vacate, Set Aside, or Correct Sentence

pursuant to 28 U.S.C. § 2255, (ECF No. 64). In the motion and supporting memorandum,
Movant alleges that he received ineffective assistance of counsel from his lawyer, Rhett
Johnson. Movant claims that Attorney Johnson failed to properly advise Movant of
available defenses; thus, misleading and coercing him into filing a guilty plea. Movant
contends that but for the ineffective assistance of counsel, he would never have entered a
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guilty plea, the Court or jury would have exonerated him, and he would not be serving a
sentence of imprisonment. In view of Movant’s allegations, 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 Attorney Johnson, 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,
defense counsel 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 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
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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, 2012); 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 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 Rule 1.6(b)(5) permits a lawyer to “reveal 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
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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. 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, both West Virginia Rule 1.6(b)(6) and
Model Rule 1.6(b)(6) explicitly state that the lawyer may disclose such information “to
comply with other law or a court order.” Ultimately, a lawyer must comply with orders of
a court of competent jurisdiction, which require the lawyer to disclose information about
the client. In view of these provisions, the Court finds that defense counsel in this case
may, without violating the applicable Rules of Professional Conduct, disclose information
in this proceeding regarding their 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 counsel, 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

See also United States v. Pinson, 584 F.3d 972, 977-78 (10th Cir. 2009); In re Lott, 424 F.3d 446, 45354 (6th Cir. 2005); Johnson v. Alabama, 256 F.3d 1156, 1178-79 (11th Cir. 2001); Tasby v. United States,
504 F.2d 332 (8th Cir. 1974); Dunlap v. United States, No. 4:09-cr-00854-RBH-1, 2011 WL 2693915, at *2
(D.S.C. Jul. 12, 2011); Mitchell v. United States, No. CV10-01683-JLR-JPD, 2011 WL 338800, at *2 (W.D.
Wash Feb. 3, 2011).

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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.
Here, Movant intentionally waived in the § 2255 motion the attorney-client privilege that
attached to some of his communications with counsel; for example, those
communications pertaining to his claims of ineffective assistance of counsel. 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 502; 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

2The

Federal Rules of Evidence generally apply in a § 2255 proceeding, except to the extent that “[a] federal
statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence
independently from” the Rules of Evidence. See FRE 1101(a), 1101(b), and 1101(e). The statutes and rules
governing § 2255 actions do not address the assertion or waiver of the attorney-client privilege. See also
Castro v. United States, 272 F. Supp. 3d 268, 275 (D. Mass. 2017) (holding that “[t]he rules of evidence
apply to proceedings under § 2255” and referring to the Advisory Committee note to FRE 1101(d)(3));
United States v. Scott, 576 Fed.Appx. 409, 415 (5th Cir. 2014) (concluding that FRE 606(b) foreclosed
movant's argument in § 2255 proceeding); United States v. McIntire, Case No. 3:09-cv-359, 2010 WL
374177 (S.D. Ohio Jan. 29, 2010); Bowe v. United States, Case no. CR404-308, 2009 WL 2899107 (S.D.
Ga. May 20, 2009); Rankins v. Page, Case No. 99-1515, 2000 WL 535960 (7th Cir. May 1, 2000); Ramirez
v. United States, Case No. 96 CIV 2090, 1997 WL 538817 (S.D.N.Y Aug. 29, 1997). Moreover, Fed. R. Evid.
1101(c) states that “[t]he rules on privilege apply to all stages of a case or proceeding.”

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affidavit and any supporting documents submitted by counsel 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 prior counsel, Rhett Johnson, to
file within thirty (30) days from the date of this Order an affidavit responding to
Movant’s claims of ineffective assistance of counsel. The affidavit shall include all of the
information that is necessary, in counsel’s view, 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 counsel’s representation of Movant, which are not pertinent to a resolution of
the § 2255, the documents may be redacted. In preparing the affidavits 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 Nicholson, 611 F.3d at 217, citing Bittaker, 331 F.3d at 722723 (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 difficult choice between “asserting his
ineffective assistance claim and risking a trial where the prosecution can use against him
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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 attorneyclient privilege, which attaches to the communications between Movant and counsel, shall
not be deemed as 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 counsel shall be limited to use in this proceeding, and Respondent is
prohibited from otherwise using the privileged information disclosed by counsel 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.
The Clerk is instructed to provide a copy of this Order to Movant, counsel of record,
and Attorney Rhett Johnson.
ENTERED: May 4, 2018

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