Opinion
No. 02 Crim. 0207 (LAK).
September 23, 2004
ORDER
Defendant pled guilty in 2003 to conspiracy to distribute and possess with intent to distribute crack cocaine and was sentenced in principal part to a term of imprisonment of 168 months. He now moves for an order to compel his former attorney to turn over his file on defendant's case to defendant. It is not clear that the Court has jurisdiction to consider this application, especially inasmuch as the case concluded long ago.
A pertinent analogy is an application pursuant to Fed.R.Crim.P. 41(g) for the return of seized property. Where such a motion is made after the conclusion of the criminal case, it cannot be treated as part of the criminal case, but is dealt with as a civil complaint invoking the equitable jurisdiction of the court. E.g., Rufu v. United States, 20 F.3d 63, 64 (2d Cir. 1994). But in such a case, subject matter jurisdiction exists because the claim is one against the United States and arises under Rule 41(g).
Here the claim is not against the United States, but against defendant's former attorney. The claim does not even arguably arise under federal law. Hence, the existence of subject matter jurisdiction is debatable.
This question need not be decided at this point. Defendant has not made his former attorney a party here and has not served his motion on him. The Court therefore cannot proceed in any case.
Accordingly, the motion is denied without prejudice to plaintiff filing a civil action against his former attorney. In the event such an action is filed in this Court, the complaint should set forth the basis for subject matter jurisdiction. In the meantime, the Court will have its clerk telephone the attorney to see whether the matter can be resolved without the need for further litigation.
SO ORDERED.