Watson v. United States of America

Filing 277

MEMORANDUM OPINION AND ORDER granting #276 MOTION for an Order Directing Movant's Former Attorneys to Provide Information to the Court Concerning Movant's Claim of Ineffective Assistance of Counsel and an Abeyance as to Curtis Watson (1); directing Movant's prior counsel, Mr. L. Thompson Price and Mr. John Carr, to file within 30 days from the date of this Order an affidavit responding to Movant's claim of ineffective assistance of counsel; directing that the attorney client 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; within 30 days of receipt of the affidavits and supporting documentation, if any, the United States shall file a responsive brief; defendant shall have 60 days thereafter to reply. Signed by Magistrate Judge Cheryl A. Eifert on 3/26/2024. (cc: Judge, USA, counsel of record, L. Thompson Price, Esq., John Carr, Esq., movant) (tmr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
CURTIS WATSON,
Movant,
Case No. 2:24-cv-00117
Case No. 2:18-cr-00279-01

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Pending before the court is the United States’ Motion for an Order Directing
Movant’s Former Attorneys to Provide Information to the Court Concerning Movant’s
Claim of Ineffective Assistance of Counsel and an Abeyance. (ECF No. 276). The Court
GRANTS the United States’ motion as follows.
I.

OPINION
On March 12, 2024, Movant filed a Motion to Vacate, Set Aside, or Correct

Sentence pursuant to 28 U.S.C. § 2255, (ECF No. 270). In the motion and accompanying
memorandum, Movant alleges that he received ineffective assistance of counsel from his
trial counsel, Mr. L. Thompson Price and Mr. John Carr (“trial counsel”). In view of
Movant’s allegations, the United States filed the instant motion asking the Court to order
trial counsel to provide information responsive to the allegations of ineffective assistance
of counsel.
When considering the United States’ motion, the Court takes into account the
professional and ethical responsibilities of Movant’s trial counsel, as well as the obligation
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of the Court to ensure a fair, orderly, and efficient judicial proceeding. Clearly, trial
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(c); 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, 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
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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
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
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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 trial 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 trial 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
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
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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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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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 trial 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
affidavit and any supporting documents submitted by trial 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 GRANTS the Government’s motion

for information and ORDERS Movant’s prior counsel, Mr. L. Thompson Price and Mr.
John Carr, to file within thirty (30) days from the date of this Order an affidavit
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responding to Movant’s claim of ineffective assistance of counsel. The affidavits shall
include all of the information that is necessary, in trial counsels’ view, to fully respond to
the claims and shall include as attachments copies of any documents from their files
specifically addressing the matters raised by Movant in his motion. To the extent that
these documents address other aspects of trial counsels’ representation of Movant, which
are not pertinent to a resolution of the § 2255, the documents may be redacted. In
preparing the affidavits and attachments, trial 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
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 affidavits and documents
supplied by trial counsel shall be limited to use in this proceeding, and Respondent is
prohibited from otherwise using the privileged information disclosed by trial counsel
without further order of a court of competent jurisdiction or a written waiver by Movant.

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The Court GRANTS the United States’ motion for an abeyance. Within thirty
(30) days of receipt of the affidavits and supporting documentation, if any, the United
States shall file a responsive brief. The United States shall include a paragraph setting
forth its view on whether an evidentiary hearing is required in this action. Movant shall
have sixty (60) days thereafter to reply.
The Clerk is instructed to provide a copy of this Order to Movant, counsel of record,
and L. Thompson Price, Esq., and John Carr, Esq.
ENTERED: March 26, 2024

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