Santos-Ontiveros v. USA, No. 2:2023cv00483 - Document 8 (D. Utah 2023)
Court Description: MEMORANDUM DECISION & Order: granting 5 Motion for Order Waiving Attorney Client Privilege; The court finds that Mr. Santos-Ontiveros has waived the attorney-client privilege with respect to the communications at issue in Claims 1, 2, 3, and 5 of his § 2255 petition. Signed by Judge Clark Waddoups on 10/20/2023. (kpf)
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Santos-Ontiveros v. USA Doc. 8 THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH RUFINO SANTOS-ONTIVEROS, Plaintiff, v. MEMORANDUM DECISION AND ORDER WAIVING ATTORNEY-CLIENT PRIVILEGE RELATING TO COMMUNICATIONS AT ISSUE IN § 2255 PETITION UNITED STATES OF AMERICA, Defendant. Case No. 2:23-cv-00483-CW District Judge Clark Waddoups This matter is before the court on the United States’ Motion for Order Waiving AttorneyClient Privilege (ECF No. 5). Mr. Santos-Ontiveros has filed a § 2255 petition, claiming that the two attorneys who represented him at different stages in his underlying criminal case rendered constitutionally ineffective assistance. “When a habeas petitioner claims that he received ineffective assistance of counsel, he puts communications between himself and his attorney directly in issue, and thus by implication waives the attorney-client privilege with respect to those communications.” United States v. Pinson, 584 F.3d 972, 977-78 (10th Cir. 2009); see also id. at 978 (citing “ample, unanimous federal authority” applying the same principle). “Thus, it is black letter law that a petitioner waives the attorney-client privilege for communications with the defense attorney who allegedly provided ineffective assistance.” Joseph v. United States, No. 2:19-CV-00140-JNP, 2019 WL 2060118, at *1 (D. Utah May 9, 2019) (citing Pinson, 584 F.3d at 977-78). Moreover, when a § 2255 movant raises claims that are “intertwined” with attorney-client communications, the Dockets.Justia.com privilege is also waived for purposes of those proceedings. Nikols v. United States, Case No. 2:06-cv-889, 2007 WL 2084841, at *2 (D. Utah July 17, 207). And “[s]uch a waiver occurs when a defendant”—like Mr. Santos-Ontiveros—“in an attempt to withdraw a guilty plea, claims that counsel provided erroneous advice about the consequences of the guilty plea.” United States v. Ahmed, No. 2:16-CR-00021, 2017 WL 6271262, at *3 (D. Utah Dec. 8, 2017). Mr. SantosOntiveros’ Sixth Amendment claims either directly concern or are inextricably intertwined with his communications with his attorneys. Accordingly, the United States’ Motion for Order Waiving Attorney-Client Privilege (ECF No. 5) is GRANTED. The court finds that Mr. Santos-Ontiveros has waived the attorneyclient privilege with respect to the communications at issue in Claims 1, 2, 3, and 5 of his § 2255 petition. Dated this 20th day of October, 2023. BY THE COURT: Clark Waddoups United State District Judge
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