Belcher v. United States of America
Filing
482
MEMORANDUM OPINION AND ORDER granting in part and denying in part 481 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 Movan t's Claim of Ineffective Assistance of Counsel and an Abeyance as to Jason P. Belcher (3); the Court Orders Movant's trial counsel, Mr. Gary Collias, to file within 30 days from the date of this Order an Affidavit responding to Movant' s claims of ineffective assistance of counsel; the Court further Orders that the attorney-client privilege shall not be deemed automatically waived in any other Federal or State proceedings by virture of the above-ordered disclosure in this 2255 proc eeding; the Court Grants the United States' Motion for an abeyance and shall have 30 days after receipt of the affidavit and supporting documentation, and Movant shall have 45 days after service of the United States' Response to file a reply memorandum. Signed by Magistrate Judge Cheryl A. Eifert on 11/1/2012. (cc: attys; any unrepresented party, Mr. Gary Collias) (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
JASON S. BELCHER,
Movant,
v.
Case No.: 3:12-cv-04717
(Criminal Case No.: 3:09-cr-00158-03)
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. 481). The Court DENIES, in part,
and GRANTS, in part, the motion. Movant shall not be required to file a privilege
waiver; however, his former counsel shall be required to provide information necessary
to resolve Movant’s § 2255 motion to the extent stated herein.
I.
OPINION
In March 2010, a jury sitting in the United States District Court for the Southern
District of West Virginia found Movant guilty of violating 18 U.S.C. § 846, conspiracy to
distribute 50 grams or more of cocaine base and a quantity of heroin, and 18 U.S.C. §
841(a)(1), distribution of five grams or more of cocaine base. (ECF No. 348). He was
sentenced to a total of 216 months of imprisonment, as well as eight years of supervised
release, a $2500 fine, and a $200 assessment. (ECF No. 409). Movant appealed the
verdict to the United States Court of Appeals for the Fourth Circuit; the Fourth Circuit
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affirmed the conviction and sentence on May 23, 2011. (ECF No. 434). Accordingly,
Movant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §
2255. (ECF No. 474). In the motion, Movant alleges that he received ineffective
assistance of counsel when his lawyer, Mr. Gary Collias (“Collias”), (1) failed to move for
a mistrial or curative instruction directing the jury to disregard a witness’ testimony; (2)
failed to challenge a search warrant and move to suppress evidence seized pursuant to
the warrant; (3) failed to demand the presence at trial of authors of various investigative
and laboratory reports; and (4) deceived and misled Movant regarding the potential of
entering into a plea agreement. Movant contends that his lawyer provided him with
misinformation regarding his options to resolve the charges against him. 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 Collias,
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 doubt,
Collias 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.
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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 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
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“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 Collias 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 Collias, 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
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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.
Here, Movant intentionally waived in the § 2255 motion the attorney-client privilege
that attached to some of his communications with Collias; for example, those
communications pertaining to his claims that Collias provided misinformation
regarding the government’s willingness to enter into plea discussions and encouraged
Movant to go to trial. Moreover, to the extent that Collias made tactical decisions related
to the other grounds raised in the § 2255 motion at the request or direction of Movant,
revelation of those discussions may be essential to a fair resolution of the motion.
Accordingly, in regard to any such discussions, a subject matter waiver of the privilege
attendant to those communications should be permitted in fairness to the United States.
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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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 Collias 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 ORDERS Movant’s trial counsel,
Mr. Gary Collias, 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 Collias 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 Collias’s representation of Movant, which are not
pertinent to a resolution of the § 2255, Collias may redact 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
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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 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,
the Court further ORDERS that the attorney-client privilege, which attaches to the
communications between Movant and Collias, 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 Collias shall be limited
to use in this proceeding, and Respondent is prohibited from otherwise using the
privileged information disclosed by Collias 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. The United
States shall have thirty (30) days after receipt of the affidavit and supporting
documentation, if any, to file a response to the § 2255 motion and Movant shall have
forty-five days after service of the United States’ response to file a reply memorandum.
The Clerk is instructed to provide a copy of this Order to Movant, counsel of
record, and Mr. Gary Collias.
ENTERED: November 1, 2012.
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