Filed: Apr. 05, 2018
Latest Update: Apr. 05, 2018
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. Movant alleges that his trial attorney rendered ineffective assistance of counsel in violation of the Sixth Amendment by misinforming movant, before he elected to stand trial, as to the maximum sentence which could have been imposed had movant been found guilty on all counts. On March 31, 2018, the Federa
Summary: ORDER CAROLYN K. DELANEY , Magistrate Judge . Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. Movant alleges that his trial attorney rendered ineffective assistance of counsel in violation of the Sixth Amendment by misinforming movant, before he elected to stand trial, as to the maximum sentence which could have been imposed had movant been found guilty on all counts. On March 31, 2018, the Federal..
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ORDER
CAROLYN K. DELANEY, Magistrate Judge.
Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant alleges that his trial attorney rendered ineffective assistance of counsel in violation of the Sixth Amendment by misinforming movant, before he elected to stand trial, as to the maximum sentence which could have been imposed had movant been found guilty on all counts.
On March 31, 2018, the Federal Defender's Office for this district, through Chief Assistant Federal Defender Benjamin Galloway, filed a motion seeking clarity as to what information which might otherwise be protected by attorney-client privilege or the attorney work product privilege, is no longer protected in light of the nature of movant's ineffective assistance of counsel claim. The motion was heard on April 4, 2018. Movant appeared by telephone. Assistant United States Attorney Matthew Segal appeared on behalf of the United States. Chief Assistant Federal Defender Benjamin Galloway appeared on behalf of the Federal Defender's Office.
At the hearing, Mr. Galloway provided the court with unredacted and proposed redacted copies of the documents from the Federal Defender's "electronic files" and "physical files" concerning movant. The court also met with Mr. Galloway ex parte to review the documents and discuss some issues of concern to the court.
After reviewing all of the documents, considering the positions of movant and the United States, and good cause appearing, IT IS HEREBY ORDERED that:
1. The court finds that by virtue of the ineffective assistance of counsel claim presented in his 28 U.S.C. § 2255 motion, movant has waived the attorney-client privilege and the attorney work product privilege as to the following issues:
A. Whether trial counsel communicated to movant that there was a plea offer by the United States in this case which would have resulted in a 240 month sentence;
B. Whether anyone in the Federal Defender's Office advised movant correctly at any time as to his sentencing exposure;
C. (1) Whether trial counsel informed movant by letter that the maximum sentence in this case should he go to trial, testify, and be convicted, was 20 years;
(2) Whether trial counsel informed movant in person that the maximum sentence in this case should he go to trial, testify, and be convicted, was 20 years;
D. (1) Had movant understood that going to trial risked up to a 120 year sentence, whether movant would have asked trial counsel to continue negotiating; and
(2) Had movant understood that going to trial risked up to a 120 year sentence, whether movant would have accepted the 20 year plea offer.
2. Having reviewed the documents provided to the court by Mr. Galloway1, the court finds that the attorney-client privilege and the attorney work product privilege have been waived with respect to the following documents, identified by Bates stamp numbers 001-070.2 Mr. Segal shall arrange to take possession of these documents from the undersigned's courtroom deputy by the close of business Tuesday, April 10, 2018.
3. Also, by the close of business Tuesday, Mr Galloway shall provide the court with all documents in the Federal Defender's possession which might be protected by attorney-client privilege or the attorney work product privilege as to movant's direct appeal. Documents should be delivered directly to chambers and not filed with the Clerk, and should be Bates-stamped with numbers commencing with 071.
4. The Clerk of the Court is directed to file documents 001-070, 041U, and 068U under seal.
