Thomas William Dyer, Jr. v. United States of America, No. 5:2014cv19140 - Document 55 (S.D.W. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER as to Thomas William Dyer, Jr.: The Court ORDERS Movant's counsel, Mr. Thomas A. Rist, to file within 30 days from the date of this Order an affidavit responding to Movant's specific claims of ineffective assist ance of counsel; the Court ORDERS that the attorney-client privilege, which attaches to the communications between movant and Attorney Rist, shall not be deemed automatically waived in any other Federal or State proceedings by virtue of the above-ord ered disclosure in this Section 2255 proceeding. The affidavit and documents supplied by Mr. Rist shall be limited to use in this proceeding, and Respondent is prohibited from otherwise using the privileged information disclosed by Mr. Rist without further order of a court of competent jurisdiction or a written waiver by Movant. Signed by Magistrate Judge Cheryl A. Eifert on 10/9/2014. (cc: Judge, USA, counsel, deft) (slr)
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Thomas William Dyer, Jr. v. United States of America Doc. 55 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA BECKLEY D IVISION TH OMAS W ILLIAM D YER, JR. Mo van t, v. Cas e N o .: 5:14 -cv-19 14 0 ( Crim in al Cas e N o .: 5:13 -cr-0 0 10 7-1) U N ITED STATES OF AMERICA Re s p o n d e n t. MEMORAN D U M OPIN ION AN D ORD ER Pending before the Court is a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 and attached affidavit filed by Movant Thom as William Dyer, J r. (ECF Nos. 50 , 50 -1). The undersigned notes that in support of his m otion, Movant claim s, in relevant part, that his court-appointed counsel, Thom as A. Rist, provided ineffective assistance when he (1) advised Movant to enter into a plea agreem ent with the United States before fully investigating the strength of the case against Movant; and (2) failed to file an appeal despite receiving unequivocal instructions from Movant to do so. (See ECF No. 50 -1). In order for the Court to assess the m erit of these claim s, it is necessary to expand the record. See Rule 7, Rules Governing Section 2255 Proceedings. In particular, the Court would like to hear from Mr. Rist in response to Movant s assertions. However, any statem ent by Mr. Rist undoubtedly would require the disclosure of attorney-client com m unications. 1 Dockets.Justia.com 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 com m unications with his allegedly ineffective lawyer. Bittaker v. W oodford, 331 F.3d 715, 716 (9th Cir. 20 0 3).1 Subsequent to the opinion in Bittaker, Rule 50 2 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. Fed. R. Evid. 50 2(a) 2 specifically addresses the circum stance of when a party discloses a com m unication or inform ation covered by the attorney-client privilege in a Federal proceeding or to a Federal office or agency. According to Rule 50 2(a), when the attorney-client privilege is waived as to the disclosed com m unication or inform ation: the waiver extends to an undisclosed com m unication or information in a Federal or State proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed com m unications or inform ation concern the sam e subject m atter; and (3) they ought in fairness to be considered together. Here, Movant has intentionally waived his attorney-client privilege by disclosing som e of his com m unications with Attorney Rist for the purpose of pursuing his § 2255 m otion; for exam ple: (1) that he was advised by Rist that he should accept the Governm ent s plea offer of 27-33 m onths im prisonm ent to avoid a fifty-year prison sentence; (2) that when he received a 60 -m onth sentence, he told Rist to file a Notice of 1 See also United States v. Pinson, 584 F.3d 972 (10 th Cir. 20 0 9); In re Lott, 424 F.3d 446 (6th Cir. 20 0 5); Johnson v. Alabam a, 256 F.3d 1156 (11th Cir. 20 0 1); Tasby v. United States, 50 4 F.2d 332 (8th Cir. 1974); Dunlap v. United States, Case No. 4:11-cv-70 0 82-RBH, 20 11 WL 2693915 (D.S.C. J uly 12, 20 11); Mitchell v. United States, Case No. CV10 -0 1683-J LR-J PD, 20 11 WL 33880 0 (W.D. Wash Feb. 3, 20 11). 2 The Federal Rules of Evidence are applicable in a § 2255 proceeding to the extent that m atters of evidence are not provided for in the statutes which govern procedure therein or in other rules prescribed by the Suprem e Court pursuant to statutory authority. FRE 110 1(e). See also U.S. v. Torrez-Flores, 624 F.2d 776 (7th Cir 1980 ); United States v. McIntire, Case No. 3:0 9-cv-359, 20 10 WL 374177 (S.D. Ohio J an. 29, 20 10 ); Bow e v. United States, Case no. CR40 4-30 8, 20 0 9 WL 289910 7 (S.D.Ga. May 20 , 20 0 9); Rankins v. Page, Case No. 99-1515, 20 0 0 WL 535960 (7th Cir. May 1, 20 0 0 ); Ram irez v. United States, Case No. 96 CIV 20 90 , 1997 WL 538817 (S.D.N.Y Aug. 29, 1997). The statutes and rules governing § 2255 actions do not address the assertion or waiver of the attorney-client privilege. 2 Appeal, which Rist agreed to do; and (3) that Rist later told Movant he would not file the appeal because there was no grounds for appeal; ultim ately, failing to file an Anders brief, or give Movant adequate tim e to find another attorney to file an appeal or to file an appeal brief him self. Therefore, applying Rule 50 2(a), the undersigned finds that Movant s waiver should, in all fairness, extend to everything that was said between Movant and Attorney Rist, disclosed and undisclosed, pertaining to the subject m atter of Movant s ineffective assistance of counsel claim s. Nevertheless, the undersigned recognizes the professional and ethical responsibilities of crim inal defense attorneys. Rule 83.7 of the Local Rules of Civil Procedure and Rule 44.7 of the Local Rules of Crim inal Procedure of this District provide that: In all appearances, actions and proceedings within the jurisdiction of this court, attorneys shall conduct them selves in accordance with the Rules of Professional Conduct and the Standards of Professional Conduct prom ulgated and adopted by the Suprem e Court of Appeals of West Virginia, and the Model Rules of Professional Conduct published by the Am erican Bar Association. Both the Rules of Professional Conduct prom ulgated by the Suprem e Court of Appeals of West Virginia and the Am erican Bar Association s ( ABA ) Model Rules of Professional Conduct address the confidentiality of inform ation 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 lim it the circum stances under which an attorney m ay reveal privileged com m unications without an express and inform ed waiver of the privilege by the client. Moreover, on J uly 14, 20 10 , the ABA s Com m ittee on Ethics and Professional Responsibility issued Form al Opinion 10 -456, entitled Disclosure of Inform ation to 3 Prosecutor When Lawyer s Form er Client Brings Ineffective Assistance of Counsel Claim . Although this opinion is not binding on the court, see, e.g., Jones v. United States, Case No. 4:11-cv-0 0 70 2 ERW, 20 12 WL 484663, at *2 (E.D.Mo. Feb. 14, 20 12); Em ploy er s Reinsurance Corp. v. Clarendon Nat. Ins. Co., 213 F.R.D. 422, 430 (D. Kan 20 0 3), it provides a reasoned discussion of the com peting interests that arise in the context of an ineffective assistance of counsel claim and their im pact on the continued confidentiality of attorney-client com m unications. In sum m ary, the ABA acknowledges in the opinion that an ineffective assistance of counsel claim ordinarily waives the attorney-client privilege with regard to som e otherwise privileged inform ation, but cautions that this waiver does not operate to fully release an attorney from his or her obligation to keep client inform ation confidential unless the client gives inform ed consent for disclosure or disclosure is sanctioned by an exception contained in Model Rule 1.6. After exam ining the various exceptions contained in Model Rule 1.6, the ABA concludes that disclosure m ay be justified in certain circum stances; however, any such disclosure should be lim ited to that which the attorney believes is reasonably necessary and should be confined to court-supervised proceedings, rather than ex parte m eetings with the non-client party. Stated sim ply, the filing of an ineffective assistance of counsel claim does not operate as an unfettered waiver of all privileged com m unications. Upon exam ining the provisions of West Virginia s Rule of Professional Conduct 1.6, the undersigned notes that 1.6(b)(2) perm its a lawyer to reveal such inform ation [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 Com m ent that follows the Rule, the Suprem e Court of 4 Appeals instructs the lawyer to m ake every effort practicable to avoid unnecessary disclosure of inform ation relating to a representation, to lim it disclosure to those having the need to know it, and to obtain protective orders or m ake other arrangem ents m inim izing the risk of disclosure. Ultim ately, however, a lawyer m ust com ply with orders of a court of com petent jurisdiction, which require the lawyer to disclose inform ation about the client. Sim ilarly, Model Rule 1.6(b)(5) authorizes an attorney to reveal inform ation 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. Furtherm ore, Model Rule 1.6(b)(6) explicitly states that the lawyer m ay disclose such inform ation to com ply with other law or a court order. In view of these provisions, the Court finds that Attorney Rist m ay, without violating the applicable Rules of Professional Conduct, disclose inform ation in this proceeding regarding his comm unications with Movant to the extent reasonably necessary to com ply with an order of this Court or to respond to the allegations of ineffective representation. Having addressed the professional responsibilities of Attorney Rist, the Court turns to its authority and obligations. Certainly, the Court has the obligation to insure an orderly, fair, and efficient resolution of the disputed m atter, and is authorized to order Mr. Rist to provide inform ation regarding his discussions with Movant as necessary to resolve the pending m otion. The Court also has the authority to issue a protective order governing the production of the privileged inform ation, including the m ethod by which the currently undisclosed comm unications shall be disclosed. See Rule 12, Rules Governing § 2255 Proceedings; FRCP 26(c); and FRE 50 3(d); See also United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 20 10 ). Rule 7 of the Rules Governing Section 2255 5 Proceedings expressly authorizes the use of affidavits as part of the record. Accordingly, an affidavit subm itted by Attorney Rist that responds to Movant s claim s, along with any supporting docum entation in Mr. Rist s file, should supply the basic inform ation required by the United States to respond to Movant s § 2255 m otion, and should assist the Court in resolving the issues while sim ultaneously ensuring a reasonable lim itation on the breadth of the waiver of the attorney-client privilege. Therefore, for the forgoing reasons, the Court ORD ERS Movant s counsel, Mr. Thom as A. Rist, to file within th irty ( 3 0 ) d ays from the date of this Order an affidavit responding to Movant s specific claim s of ineffective assistance of counsel. The affidavit shall include all of the inform ation Mr. Rist believes is necessary to fully respond to the claim s and shall include as attachm ents copies of any docum ents from his file specifically addressing the m atters raised by Movant in his m otion. To the extent that these docum ents address other aspects of Mr. Rist s representation of Movant, which are not pertinent to a resolution of the § 2255, they may be redacted. In preparing the affidavit and attachm ents, counsel should disclose only that inform ation reasonably necessary to ensure the fairness of these proceedings. In addition, the undersigned finds that specific court-im posed lim itations on the use of the privileged inform ation are necessary to protect Movant s future interests. As noted by the Fourth Circuit in Nicholson, supra at 217, citing Bittaker, supra at 722723, a protective order prohibiting the subsequent and unfettered use of privileged inform ation disclosed in a § 2255 proceeding is entirely justified, because otherwise Movant would be forced to m ake a painful choice between asserting his ineffective assistance claim and risking a trial where the prosecution can use against him every statem ent he m ade to his first lawyer or retaining the privilege but giving up his 6 ineffective assistance claim . Accordingly, the Court further ORD ERS that the attorney-client privilege, which attaches to the com m unications between Movant and Attorney Rist, shall not be deem ed autom atically waived in any other Federal or State proceeding by virtue of the above-ordered disclosure in this § 2255 proceeding. The affidavit and docum ents supplied by Mr. Rist shall be lim ited to use in this proceeding, and Respondent is prohibited from otherwise using the privileged inform ation disclosed by Mr. Rist without further order of a court of com petent jurisdiction or a written waiver by Movant. Upon receipt of the affidavit and supporting docum entation, if any, the undersigned will review the m atter to determ ine whether an evidentiary hearing is necessary. Upon com pletion of the review, the undersigned will issue an appropriate scheduling order. The Clerk is instructed to provide a copy of this Order to Movant, the United States Attorney s Office for the Southern District of West Virginia, and Mr. Thom as A. Rist, counsel for Movant in the underlying crim inal action. EN TERED : October 9, 20 14 7
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