United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the government's Motion
Requesting an Order Requiring Former Defense Counsel to
Disclose Substance of Communication and to Provide Documents
and Affidavits (Doc. #15) filed on January 26, 2017.
Petitioner's former trial counsel from the Federal Public
Defender's Office filed Responses in Opposition (Docs. ##
16-17), and former appellate counsel, who also represented
petitioner at sentencing, filed a Motion to Adopt (Doc. #18)
the Response (Doc. #16) on February 9, 2017. The Motion to
Adopt will be granted.
Petitioner's § 2255 Motion
November 4, 2016, petitioner filed his Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence By a
Person in Federal Custody (Doc. #1). Petitioner raises four
grounds for relief: Ground One asserts an illegal search and
seizure, arguing that law enforcement had photographs of
messages from two Facebook accounts but pursued a Gmail
account where none of the photographs were found in the
nearly 300 emails collected. Petitioner argues that no effort
was made to trace the IP address for the origin of the
emails. Petitioner further argues that he tried to raise the
issue earlier but his trial and appellate attorneys refused
to do so. Ground Two argues that there was a bad faith
destruction of relevant evidence because the real Gmail user
deleted the emails after finding out that law enforcement
would read them, and law enforcement failed to collect the IP
address to prove who really sent the emails, claiming they
only made printed copies of the emails and not the page
providing the sender's information. Petitioner argues
that he tried to raise this earlier but his trial attorneys
refused to raise the issue. Ground Three asserts that trial
counsel and appellate counsel were ineffective because they
refused to raise certain issues, or “check alibis,
etc.” Petitioner asserts that his attorneys effectively
aided the government, and were in effect parties to a
conspiracy to commit fraud upon the Court. Petitioner asserts
that he has vital evidence that was kept out of trial and
withheld from the jury which was exculpatory. Ground Four
asserts a Brady violation, arguing that there must
have been additional emails with attachments that were not
turned. Petitioner argues that there are at least 2 emails
that were withheld by the government that would have shown
that he was innocent and not the author of the other emails.
to petitioner's habeas petition is petitioner's
unsworn Affidavit (Doc. #1-1) stating his trial counsel were
involved in covering up a conspiracy by law enforcement
officers, and providing multiple examples of alleged
ineffective assistance of counsel. Petitioner maintains that
but for the fraud and the ineffective assistance of counsel,
he could have proven his innocence.
The Government's Motion to Compel
government seeks to compel former counsel to “disclose
communications with Handlon and provide documents and
affidavits regarding their previous representation of
Handlon.” (Doc. #15, p. 1.) Specifically, the
government seeks “any records (including
correspondence) relating to Handlon's claims”, and
affidavits from former counsel “discussing their
communications, efforts, and strategies concerning the claims
Handlon raises in his motion.” (Id., p. 7.)
The government argues that a meaningful response cannot be
provided without former counsel's “input regarding
their communications, efforts, and strategies”.
(Id., p. 4.) Former counsel have invoked the
attorney-client privilege and oppose any such disclosure.
attorney-client privilege is not “an inviolable seal
upon the attorney's lips. It may be waived by the client;
and where, as here, the client alleges a breach of duty to
him by the attorney, we have not the slightest scruple about
deciding that he thereby waives the privilege as to all
communications relevant to that issue.” Laughner v.
United States, 373 F.2d 326, 327 (5th Cir.
1967). A party “waives its attorney-client
privilege when it injects into this litigation an issue that
requires testimony from its attorneys or testimony concerning
the reasonableness of its attorneys' conduct.”
GAB Bus. Servs., Inc. v. Syndicate, 627, 809 F.2d
755, 762 (11th Cir. 1987). A party waives attorney client
privilege “if he injects into the case an issue that in
fairness requires an examination of otherwise protected
communications.” Cox v. Adm'r U.S. Steel &
Carnegie, 17 F.3d 1386, 1419 (11th Cir.), opinion
modified on reh'g, 30 F.3d 1347 (11th Cir. 1994).
“By alleging that his attorneys provided ineffective
assistance of counsel in their choice of a defense strategy,
[Defendant] put at issue-and thereby waived-any privilege
that might apply to the contents of his conversations with
those attorneys to the extent those conversations bore on his
attorneys' strategic choices.” Johnson v.
Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001). Any
required discovery from defense counsel must be tailored to
the issues raised in the § 2255, which result in the
waiver. United States v. Pinson, 584 F.3d 972,
978-79 (10th Cir. 2009); Bittaker v. Woodford, 331
F.3d 715 (9th Cir. 2003).
§ 2255 petition can be resolved without an evidentiary
hearing, there would be no need to invade what would
otherwise be privileged communications. The government has
not yet taken a position on whether an evidentiary hearing on
some, or all, of the issues raised in the §2255 motion
is required, and “[a]n evidentiary hearing is not
required whenever a petitioner asserts a claim of ineffective
assistance under section 2255.” Gordon v. United
States, 518 F.3d 1291, 1301 (11th Cir. 2008) (citation
omitted). To establish entitlement to an evidentiary hearing,
petitioner must “allege facts that would prove both
that his counsel performed deficiently and that he was
prejudiced by his counsel's deficient performance.”
Hernandez v. United States, 778 F.3d 1230, 1232-33
(11th Cir. 2015). “A hearing is not required on
patently frivolous claims or those which are based upon
unsupported generalizations. Nor is a hearing required where
the petitioner's allegations are affirmatively
contradicted by the record.” United States v.
Guerra, 588 F.2d 519, 521 (5th Cir. 1979). Even if
petitioner has alleged sufficient facts, an affidavit from
former counsel contesting the facts would not change the
course of the proceedings: an evidentiary hearing would still
motion will be denied without prejudice. If after the
government's response the Court determines that an
evidentiary hearing is required, including testimony of
former counsel regarding specific communications, the
government will have an opportunity to seek appropriate
discovery if it wishes.
it is hereby
1. Former appellate counsel's Motion to Adopt (Doc. #18)
is GRANTED and counsel's opposition is duly noted.
2. The government's Motion Requesting an Order Requiring
former Defense Counsel to Disclose Substance of Communication
and to Provide Documents and Affidavits ...