Free Motion for Order - District Court of Connecticut - Connecticut

Case 3:00-cr-00170-SRU

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

DARRIN LMINGGIO V. UNITED STATES OF AMERICA

: : : : :

No. 3:00CR170(SRU) No. 3:05CV532(SRU) MAY 3, 2005

GOVERNMENT'S REQUEST FOR AN ORDER By pro se motion and memorandum dated March 23, 2005 and filed on March 28, 2005, petitioner Darren Lminggio moved to vacate, set aside or correct his sentence. In particular, Mr. Lminggio claims

he was afforded ineffective assistance of counsel by Attorney Sarah Chambers, because, he alleges, Ms. Chambers failed to file a direct appeal despite Mr. Lminggio's request that she do so. See Motion in Support of Petition at 2. This Court has entered an Order to Show

Cause ordering the Government to respond to the petition. While the Government believes the Court can summarily deny the petition on the basis of the Court's advice to the defendant concerning appellate rights at the time of sentencing, it would certainly be preferable to supplement the record with an affidavit from former counsel and with any relevant documents that may be contained within counsel's file. Petitioner's filing of a petition alleging ineffective assistance of counsel constitutes a waiver of the attorney-client privilege. Tasby v. United States, 504 F.2d

332 (8th Cir. 1974), cert. denied, 419 U.S. 1125 (1975); Laughner

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v. United States, 373 F.2d 326 (5th Cir. 1967); United States v. Wiggins, 184 F. Supp. 673 (D. DC 1960); cf. Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998). Where, as here, the petitioner has put in

issue discussions that either did or did not occur between client and counsel, all communications reasonably related to his claim are no longer covered by the privilege. Accordingly, the Government respectfully requests the Court make a finding that the petitioner's claim of ineffective

assistance of counsel constitutes a waiver of the attorney-client privilege as to all information reasonably related to the

petitioner's claims.

The Government further requests that if the

Court finds a waiver, Attorney Chambers be required to supplement the record with an affidavit regarding discussions, if any,

regarding an appeal with Mr. Lminggio and any relevant documents from counsel's file. 180932 at *6 (S.D.N.Y. WL 31251007 at *1-2 See, e.g., Santana v. United States, 2005 WL Jan. 26, 2005); Rodriguez v. New York, 2002 (S.D.N.Y. Oct 8, 2002) (citing cases);

Davila-Bajana v. United States, 2002 WL 2022646 at *4 (E.D.N.Y. Jun 26, 2002)(Raggi, J.)(based on defense attorney's rejected affidavit § 2255

contradicting

petitioner's

account,

court

petitioner's claim that his attorney ignored his request to file a notice of appeal, without holding a hearing); Rosa v. United States, 170 F. Supp.2d 388, 298-99 (S.D.N.Y. 2001); cf. Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001)(matter resolved on

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the basis of "a detailed affidavit from trial counsel credibly describing the circumstances concerning [Gonzalez's] failure to testify."). Once that affidavit is received by the Government,

with the Court's permission, it will file its response to the petitioner's motion. Respectfully submitted, KEVIN J. O'CONNOR UNITED STATES ATTORNEY

JAMES I. GLASSER ASSISTANT UNITED STATES ATTORNEY FEDERAL BAR No. ct07221 P.O. BOX 1824 NEW HAVEN, CT 06508 (203) 821-3700 CERTIFICATION OF SERVICE This is to certify that a copy of the within and foregoing has been mailed, postage prepaid, this 3rd day of May, 2005, to Darrin Lminggio, Prisoner No. 13952014, Federal Correctional

Institution,Medical Center, Springfield, MO. and to Sarah Chembers, Esq., Office of Bar Counsel, 99 High Street, Boston, MA 02110 JAMES I. GLASSER ASSISTANT U.S. ATTORNEY

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