Filed: Sep. 28, 2017
Latest Update: Sep. 28, 2017
Summary: ORDER LINDA R. READE , District Judge . This matter appears before the court on Joseph Latham's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255 (civil docket no. 1). Joseph Latham ("the movant") filed such motion on August 1, 2017. Having conducted its preliminary consideration of the movant's 2255 motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court concludes that the movant's claims should be briefed. The parties are DIRE
Summary: ORDER LINDA R. READE , District Judge . This matter appears before the court on Joseph Latham's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. 2255 (civil docket no. 1). Joseph Latham ("the movant") filed such motion on August 1, 2017. Having conducted its preliminary consideration of the movant's 2255 motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court concludes that the movant's claims should be briefed. The parties are DIREC..
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ORDER
LINDA R. READE, District Judge.
This matter appears before the court on Joseph Latham's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Joseph Latham ("the movant") filed such motion on August 1, 2017.
Having conducted its preliminary consideration of the movant's § 2255 motion pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, the court concludes that the movant's claims should be briefed. The parties are DIRECTED to respond in the following manner:
1. The government is DIRECTED to file a brief in response to the movant's § 2255 motion on or before December 7, 2017. The government may attach relevant materials to its brief.
2. If he so chooses, the movant is DIRECTED to file a brief in reply to the government's response and/or additional materials related to his § 2255 motion on or before December 27, 2017.
The movant raises at least one claim of ineffective assistance of counsel. A claim of ineffective assistance of counsel waives the attorney-client privilege as to communications with the attorney that are necessary to prove or disprove the claim. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) ("When a client calls into public question the competence of his attorney, the privilege is waived."); see also United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (citing Tasby, 504 F.2d at 336); United States v. Davis, 583 F.3d 1081, 1090 (8th Cir. 2009) (making clear that attorney-client privilege cannot be used as both a sword and a shield); In re Lott, 424 F.3d 446, 453 (6th Cir. 2005) (citing Tasby, 504 F.2d at 336); Bittaker v. Woodford, 331 F.3d 715, 720 (9th Cir. 2003) (addressing scope of waiver); United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986) (permitting an attorney to reveal otherwise privileged communications when defending himself against charges of improper conduct); Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir. 1956) (indicating that waiver may be express or implied). Therefore, counsel whose representation is challenged is DIRECTED to file with the court an affidavit that responds only to the movant's specific allegation(s) of ineffective assistance of counsel. Such affidavit must contain all of the information that counsel reasonably believes is necessary to respond to the movant's specific allegation(s). In addition, counsel is DIRECTED to attach to, or include with, his or her affidavit all of the documents that he or she reasonably believes are necessary to respond to the movant's allegation(s). This court-supervised response to the movant's allegation(s) must be filed with the court on or before November 7, 2017. The clerk's office is DIRECTED to provide a copy of this order to the movant's former counsel.1 After counsel complies with the court's directives, the clerk's office is DIRECTED to serve both parties with a copy of the documents that counsel files. If the movant objects to counsel responding as ordered herein, the movant is DIRECTED to notify the court of the objection and the basis for the objection within 21 days of the date of this order. Upon receipt of an objection by the movant, the court will notify the parties and counsel that they need not take further action until they are directed to do so by the court.
IT IS SO ORDERED.
