Mitchell v. United States of America, No. 2:2015cv05501 - Document 101 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER denying government's 94 MOTION for a Written Privilege Waiver as to Ricky Joe Mitchell; granting 94 MOTION for an Order Directing Movant's Former Counsel to Provide Information to the United States Concernin g Movant's Claim of Ineffective Assistance of Counsel as to Ricky Joe Mitchell; directing that Mr. Bungard file an affidavit responding only to Movant's specific claims of ineffective assistance of counsel by 2/23/2016; granting government& #039;s 94 MOTION for Abeyance; government's response to Movant's 87 2255 Motion due by 3/8/2016; Movant's reply due 4/8/2016. Cross Reference Criminal Case Number 2:13-00201. Signed by Magistrate Judge Dwane L. Tinsley on 1/19/2016. (cc: attys; any unrepresented party) (mek)
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Mitchell v. United States of America Doc. 101 IN TH E U N ITED STATES D ISTRICT COU RT FOR TH E SOU TH ERN D ISTRICT OF W EST VIRGIN IA CH ARLESTON RICKY JOE MITCH ELL, Mo van t, v. Cas e N o . 2 :15-cv-0 550 1 Cas e N o . 2 :13 -cr-0 0 2 0 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 the United States’ Motion for an Order Directing Movant to File a Privilege Waiver and an Order Directing Movant’s Form er Counsel to Provide Inform ation to the United States Concerning Movant’s Claim of Ineffective Assistance of Counsel and an Abeyance (ECF No. 94). For the reasons that follow, it is hereby ORD ERED that the United States’ Motion (ECF No. 94) is GRAN TED IN PART and D EN IED IN PART. I. PROCED U RAL H ISTORY On May 5, 20 15, Movant filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (ECF No. 90 ). In the m otion, Movant alleges various claim s of ineffective assistance of counsel by his trial counsel, David R. Bungard, Assistant Federal Public Defender. Specifically, Movant claim s that Mr. Bungard: (1) negotiated a plea with the United States prior to inform ing him of the potential sentence: (2) did not advise Movant that the charge to which he pled guilty “carried a four point sentencing guideline enhancem ent;” (3) did not advise Movant of the Dockets.Justia.com potential sentence he faced if he rejected the United States’ initial plea offer; (4) did not negotiate Movant’s right to appeal his sentence and restitution am ount; (5) did not calculate the dam ages Movant would have to pay in restitution until after the plea agreem ent was signed; (6) did not offer expert testim ony on behalf of Movant; (7) did not depose a key witness prior to the key witness’s testim ony at sentencing; and (8) did not allow Movant to testify on his own behalf at sentencing. (Id.) On December 9, 20 15, the undersigned directed the United States to file a response to Movant’s section 2255 m otion by J anuary 25, 20 16. (ECF No. 92). The United States now seeks an Order directing Movant to file a waiver of the attorney-client privilege and an Order directing Mr. Bungard to provide relevant and necessary inform ation directly related to Movant’s ineffective assistance of counsel claim s. The United States also requests that the court hold this m atter in abeyance until the court has ruled on the m otion and the waiver is filed. (ECF No. 94). II. AN ALYSIS In considering the United States’ m otion, the Court m ust take into account the professional and ethical responsibilities of Movant’s attorneys, as well as the obligation of the Court to ensure a fair, orderly, and efficient judicial proceeding. Obviously, Mr. Bungard has a basic duty under any jurisdiction’s standards of professional conduct to protect the 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 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. 2 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 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, 20 12 WL 484663 *2 (E.D.Mo. Feb. 14, 210 2); 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 3 attorney believes is reasonably necessary and should be confined to “court-supervised” proceedings, rather than ex parte m eetings with the non-client party. 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 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 Mr. Bungard may, 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 Mr. Bungard, the Court turns to its authority and obligations. As previously noted, federal courts have long held 4 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. Rule 50 2(a) 2 provides in relevant part: When the disclosure is m ade 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 com m unication or inform ation 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. Nonetheless, the Court retains authority to issue a protective order governing production of the privileged inform ation, including the m ethod by which the currently undisclosed com m unications will be disclosed. See Rule 12, Rules Governing § 2255 Proceedings; Fed .R. Civ. P. 26(c); and Fed. R. Evid. 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 Proceedings expressly authorizes the use of affidavits as part of the record. In order to determ ine whether an evidentiary hearing is necessary, an affidavit subm itted by Mr. Bungard would be useful to the Court. Moreover, such an affidavit and any supporting 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, 20 11 WL 2693915 (D.S.C.); Mitchell v. United States, 20 11 WL 33880 0 (W.D. Wash). 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.” Fed. R. Evid. 110 1(e). See also U.S. v. TorrezFlores, 624 F.2d 776 (7th Cir 1980 ); United States v. McIntire, 20 10 WL 374177 (S.D. Ohio); Bow e v. United States, 20 0 9 WL 289910 7 (S.D. Ga.); Rankins v. Page, 20 0 0 WL 535960 (7th Cir.); Ram irez 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. 5 docum ents should supply the basic inform ation required by the United States to allow it to respond to Movant’s section 2255 m otion while sim ultaneously ensuring a reasonable lim itation on the breadth of the waiver of the attorney-client privilege. III. ORD ER Therefore, for the forgoing reasons, it is hereby ORD ERED that the United States’ Motion for a Written Privilege Waiver (ECF No. 94-1) is D EN IED . However, it is further ORD ERED that the United States’ Motion for an Order Directing Movant’s Form er Counsel to Provide Inform ation to the United States Concerning Movant’s Claim of Ineffective Assistance of Counsel (ECF No. 94-2) is GRAN TED to the extent that Mr. Bungard is ORD ERED to file an affidavit responding only to Movant’s specific claim s of ineffective assistance of counsel by Fe bru a ry 2 3 , 2 0 16 . The affidavit shall include all of the inform ation the attorney believes is necessary to fully respond to the claim s and shall include as attachm ents copies of any docum ents from his file that each attorney believes to be relevant and necessary to a determ ination of the specific claim s of ineffective assistance of counsel raised by Movant in his section 2255 m otion. To the extent that any docum ents produced address other aspects of the attorney’s representation of Movant, the attorney m ay redact them . In preparing the affidavit and attachm ents, counsel should disclose only that inform ation reasonably necessary to ensure the fairness of these proceedings. Additionally, 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 United States v. Nicholson, supra, 611 F.3d at 217, citing Bittaker v. W oodford, supra at 722-723 (9th Cir. 20 0 3), a protective order prohibiting the subsequent and unfettered use of privileged inform ation disclosed in a section 2255 6 proceeding is entirely justified, because otherwise the m ovant 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 ineffective assistance claim .” Accordingly, it is hereby ORD ERED that the attorney-client privilege, which attaches to the com m unications between Movant and his form er counsel, shall not be deem ed autom atically waived in any other Federal or State proceeding by virtue of the aboveordered disclosure in this section 2255 proceeding. The affidavit and docum ents supplied by Movant’s form er counsel shall be lim ited to use in this proceeding, and the United States is prohibited from otherwise using the privileged inform ation disclosed by Movant’s form er counsel without further order of a court of com petent jurisdiction or a written waiver by Movant. Finally, it is hereby ORD ERED that the United States’ m otion for an abeyance (ECF No. 94-3) is GRAN TED . It is further ORD ERED that the United States’ response to Movant’s section 2255 m otion shall be filed by March 8 , 2 0 16 , and Movant’s reply shall be filed by Ap ril 8 , 2 0 16 . The Clerk is instructed to provide a copy of this Order to Movant, counsel of record, and Mr. David R. Bungard, Assistant Federal Public Defender. ENTER: J anuary 19, 20 16 7
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