Opinion
No. 12-CV-6649L No. 06-CR-6198L
01-11-2013
Emanuel De Jesus Sosa-Lopez, 56395-179 v. United States
WILLIAM B. HOCHUL, Jr. United States Attorney By: FRANK H. SHERMAN Assistant U.S. Attorney
VIA HAND DELIVERY
Honorable
United States District Judge
Dear Judge Larimer:
The government's answer to the Section 2255 petition filed by defendant Emanuel De Jesus Sosa-Lopez is scheduled to be filed by January 14, 2013. The government believes that defendant's motion is procedurally barred because Sosa-Lopez knowingly and voluntarily waived his appellate and § 2255 rights as to any sentence that did not exceed 365 months. [See Plea Agreement, 14., 22.] Since the sentence imposed by this Court was 24 0 months, Sosa-Lopez should not be able to proceed on this motion. For the reasons set forth below, in order to address the motion on the merits as well as procedurally, an extension of the due date for the government's answer is requested. Defendant's petition alleges that his conviction resulting in his 240 month sentence resulted from his attorney's ineffective assistance. Petition [Document 88], Grounds One-Six. I am requesting information from his counsel, Michael P. Schiano, Esquire, which would be relevant to the government's response.
It is the government's position that, by attacking his attorney's performance of his duties, a client waives his attorney-client privilege as to all communications relevant to the issues raised by the client. See Melo v. United States, 825 F.Supp.2d 457, 463 n.2 (S.D.N.Y. 2011) ("[I]t is well settled in the Second Circuit that when a convicted defendant raises an argument that his counsel was ineffective and bases that contention on privileged communications with his attorney, the attorney-client privilege is waived as to the contents of those discussions.") (internal quotation and citation omitted); Frias v. United States, 2009 WL 1437797, at *1 (S.D.N.Y. 2009) ("It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer") (internal quotation and citations omitted). Accordingly, the allegations regarding counsel contained in Documents 88 and 88-1 filed by defendant Sosa-Lopez entitle the government to have counsel's response and position. The Second Circuit also has made clear that ineffectiveness claims should not be granted without affording the government an opportunity to develop a full record in the district court and defense counsel an opportunity to explain his conduct. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam) ("We believe that a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs."). The inquiry of counsel, in appropriate circumstances, can address questions of prejudice, as well as performance, under the standard of Strickland v. Washington, 466 U.S. 668 (1984). Cox v. Donnelly, 432 F.3d 388, 390 (2d Cir. 2005). The Sparman rule applies to Section 2255 proceedings. See Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998); Bennett v. United States, 301 Fed.Appx. 31, 32 (2d Cir. 2008) (unpublished opinion).
Due to the nature of the allegations made in his petition, inquiry into defendant's conversations with attorney Schiano concerning his plea has become necessary. Obtaining a pre-hearing affidavit from attorney Schiano addressing the issues raised in the petition will assist the United States in providing the Court all of the relevant facts and may obviate completely the need for any hearing in the instant case.
In order to know the extent of the record upon which the Court will be deciding defendant's motion, I am requesting (1) that the Court direct attorney Schiano to provide the government and the Court with an affidavit concerning the relevant circumstances, discussions and advice relating to defendant's decision to plead guilty and accept the 24 0 month sentence, and other matters directly relating to defendant's petition, and (2) an adjournment of the present due date and an extension of time for the filing of the government's answer until thirty (30) days after the receipt of attorney Schiano's affidavit.
Respectfully submitted,
WILLIAM B. HOCHUL, Jr.
United States Attorney
By: FRANK H. SHERMAN
Assistant U.S. Attorney
cc: Michael P. Schiano, Esquire
(by facsimile and regular mail)
Emanuel De Jesus Sosa-Lopez
#56395-179
FCI Oakdale
Federal Correctional Institution
P.O. Box 5000
Oakdale, LA 71463