Cross v. United States of America, No. 5:2016cv06097 - Document 28 (S.D.W. Va. 2016)
Court Description: MEMORANDUM OPINION AND ORDER: The Court GRANTS in part and DENIES in part the United States' 27 MOTION for an Order Directing Movant to File a Privilege Waiver; the Court finds that Movant's former counsel should be compelled to disclose those communications with Movant that counsel believes are necessary to fully and completely respond to Movant's claims of ineffective assistance of counsel, but to continue to hold in confidence any communications with Movant that counsel reaso nably believes are not pertinent to a fair resolution of Movant's habeas motion; the Court ORDERS Movant's counsel, Mr. E. Ward Morgan, to file within 30 days from the date of this Order an affidavit responding to Movant's specific cla ims of ineffective assistance of counsel, including his claim that counsel was not properly trained or experienced at criminal law; the Court ORDERS that the attorney-client privilege, which attaches to communications between Movant and Mr. Morgan sh all not be deemed automatically waived in any other Federal or State proceeding by virtue of the above-ordered disclosure in this Section 2255 proceeding. The information supplied by Movant's former trial counsel shall be limited to use in this proceeding, and Respondent is prohibited from otherwise using the disclosed privileged information without further order of a court of competent jurisdiction or a written waiver by Movant; the Court ORDERS that the 23 briefing schedule shall be held in abeyance until Mr. Morgan files his affidavit. Signed by Magistrate Judge Cheryl A. Eifert on 9/12/2016. (cc: Judge, USA, Movant, counsel, Mr. E. Ward Morgan) (slr) (slr)
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Cross v. United States of America Doc. 28 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 BRYAN CROSS, Mo van t, v. Cas e N o . 5:16 -cv-0 6 0 9 7 Cas e N o . 5:15-cr-0 0 0 79 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. (ECF No. 27). Movant filed a m otion pursuant to 28 U.S.C. § 2255, asserting in relevant part that his form er trial counsel, Mr. E. Ward Morgan, provided ineffective assistance of counsel when he failed to retest the controlled substances that form ed the basis of Movant’s conviction; thereby, failing to determ ine and argue that the substances were cocaine, rather than partially cocaine base. Movant also generally argues that his counsel was not properly trained and experienced in crim inal law, causing counsel to m ake errors of judgm ent, to inadequately investigate the case and com m unicate properly, and to fail to zealously represent Movant. (ECF No. 18). The United States has now filed the instant m otion, claim ing that it is unable to fully respond to Movant’s allegations without being perm itted the right to speak with Movant’s counsel. 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 1 Dockets.Justia.com 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 by a 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 intentionally waived his attorney-client privilege by disclosing som e of his com m unications with his Mr. Morgan for the purpose of pursuing the § 2255 m otion; for exam ple, Movant related his conversation with counsel regarding the need to have the controlled substances retested. (ECF No. 18 at 4). In addition, Movant attaches to his m otion correspondence from Ms. Morgan discussing testing and retesting of the substances, as well as other m atters related to Movant’s case. (ECF No. 18 at 15-16). Therefore, applying Rule 50 2(a), the undersigned finds that Movant’s waiver should, in 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, 20 11 WL 2693915 (D.S.C. J uly 12, 20 11); Mitchell v. United States, Case No. CV10 -0 1683, 20 11 WL 33880 0 (W.D. Wash Feb. 3, 20 11). 2 The Federal Rules of Evidence are applicable in a § 2255 proceeding. See FRE 110 1(a) and (b). 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). Moreover, Fed. R. Evid. 110 1(c) states that “[t]he rules on privilege apply to all stages of a case or proceeding.” 2 all fairness, extend to everything that was said between Movant and Mr. Morgan, disclosed and undisclosed, pertaining to the testing and retesting of the controlled substances. However, 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(c); 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, Case No. 4:11-cv-0 0 70 2, 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 3 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 “courtsupervised” 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)(5) 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.” Furtherm ore, 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.” Sim ilarly, Model Rule 1.6(b)(5) authorizes an attorney to reveal inform ation regarding 4 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,” and Model Rule 1.6(b)(6) allows disclosures necessary to com ply with the law or a court order. In view of these provisions, the court finds that Mr. Morgan m ay, without violating the applicable Rules of Professional Conduct, disclose inform ation in this proceeding regarding his com m unications with Movant to the extent reasonably necessary to com ply with an order of this court and to respond to the allegations of ineffective assistance of counsel. Having addressed the professional responsibilities of counsel, 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 Movant’s trial attorney 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 scope of the disclosure of privileged inform ation, including a lim itation on the use of privileged inform ation in other federal and state proceedings. See Rule 12, Rules Governing § 2254 Proceedings; Fed R. Civ. P 26(c); and Fed. R. Evid. 50 2(d) Therefore, the court GRAN TS, in p art, and D EN IES, in p art, the United States’ m otion as set forth herein. The court finds that Movant’s form er counsel should be com pelled to disclose those com m unications with Movant that counsel believes are necessary to fully and com pletely respond to Movant’s claim s of ineffective assistance of counsel, but to continue to hold in confidence any com m unications with Movant that counsel reasonably believes are not pertinent to a fair resolution of Movant’s habeas m otion. 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 5 Governing Section 2255 Proceedings expressly authorizes the use of affidavits as part of the record. Consequently, the court further finds that an affidavit subm itted by Mr. Morgan responding to Movant’s claim s, along with any supporting docum entation in Mr. Morgan’s file, should be sufficient to 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. As such, the United States is not perm itted to engage in ex parte com m unications with Mr. Morgan regarding his discussions or contacts with Movant. Thus, the court ORD ERS Movant’s counsel, Mr. E. Ward Morgan, 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, including his claim that counsel was not properly trained or experienced at crim inal law. The affidavit shall incorporate all of the inform ation Mr. Ward 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. Ward’s representation of Movant, which are not pertinent to a resolution of the § 2255, they m ay 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. The court advises Movant, however, that notwithstanding the lim itations set forth herein, Mr. Morgan will be given considerable leeway in determ ining what inform ation is necessary to a fair resolution of the ineffective assistance of counsel claim . The undersigned further finds that specific court-im posed lim itations on the use of the disclosed privileged information are necessary to protect Movant’s future interests. 6 As previously noted by the Fourth Circuit Court of Appeals, a protective order prohibiting the subsequent and unfettered use of privileged inform ation disclosed in a habeas 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 ineffective assistance claim .” United States v. Nicholson, 611 F.3d 191, 217 (4th Cir. 20 10 ) (quoting Bittaker v. W oodford, 331 F.3d 715, 723 (9th Cir. 20 0 3)). Therefore, the court further ORD ERS that the attorney-client privilege, which attaches to com m unications between Movant and Mr. Morgan 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 inform ation supplied by Movant’s form er trial counsel shall be lim ited to use in this proceeding, and Respondent is prohibited from otherwise using the disclosed privileged inform ation without further order of a court of com petent jurisdiction or a written waiver by Movant. The court ORD ERS that the briefing schedule, (ECF No. 23), shall be held in abeyance until Mr. Morgan files his affidavit. Once the affidavit is filed, the tim e fram es in the schedule shall begin to run. The Clerk is instructed to provide a copy of this Order to Movant, counsel of record, and Mr. E. Ward Morgan, Esquire. EN TERED : Septem ber 12, 20 16 7
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