The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
ORDER GRANTING GOVERNMENT'S RENEWED MOTION FOR ORDER DIRECTING AFFIDAVIT RESPONSE [DOCKET NO. 19] & DENYING PETITIONER'S MOTIONS FOR LEAVE TO CONDUCT DISCOVERY OR AN EVIDENTIARY HEARING, APPOINTMENT OF COUNSEL, & SANCTIONS [DOCKET NOS. 10, 14, 22, 23]
This matter is before the court on Petitioner Kevin Walking Eagle's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. See Docket No. 1. On May 31, 2011, the district court, the Honorable Chief Judge Karen E. Schreier, referred Mr. Walking Eagle's case to this magistrate judge, pursuant to 28 U.S.C. § 636(b)(1)(B). See Docket No. 16.
There are five motions currently pending before the court. On April 25, 2011, Mr. Walking Eagle filed a motion for leave to conduct discovery, or in the alternative, to conduct an evidentiary hearing. Docket No. 10. His motion challenges the factual basis surrounding his underlying guilty plea and criminal conviction under 21 U.S.C. § 848 for engaging in a continuing criminal enterprise. He seeks affidavits from his former co-defendants, which he asserts would invalidate his conviction. Id. In the alternative, he requests that the court schedule an evidentiary hearing, at which his former co-defendants would be called to testify about Mr. Walking Eagle's role in the continuing criminal enterprise to which he pleaded guilty. Id. In support of his request, he cites Rules 6, 7, and 8 of the Rules Governing § 2255 Proceedings ("§ 2255 Rules"). He asserts that Rules 6-8 authorize the discovery he seeks, expansion of the record, and an evidentiary hearing "to establish facts that are in controversy." Docket No. 10, at 2.
On May 19, 2011, Mr. Walking Eagle filed an identical motion for leave to conduct discovery, or in the alternative, to conduct an evidentiary hearing. Docket No. 14.
On the same date, the government filed a motion for an order directing Mr. Walking Eagle's former counsel, Terry Pechota and Monica Colbath, to submit affidavits in response to the petitioner's claims of ineffective assistance of counsel. See Docket No. 15. This court denied the government's motion without prejudice, on the basis that the motion was unaccompanied by a brief with argument or citations to legal authority. Docket No. 17. The court also noted that neither Mr. Pechota nor Ms. Colbath had been served with copies of the government's motion, and directed the government to serve each attorney with a copy of the motion, if such motion was later renewed. Id.
On June 10, 2011, the government renewed its motion for an order
directing Mr. Pechota and Ms. Colbath to respond to the claims of
ineffective assistance of counsel in the § 2255 petition.*fn1
Docket No. 19. The motion requests the court's determination
that the very nature of Mr. Walking Eagle's claims of ineffective
assistance of counsel effects a waiver of the attorney-client
privilege, which in turn would permit Mr. Pechota and Ms. Colbath to
respond by affidavits to the specific claims of ineffective assistance
in the habeas petition. Id.
The government indicates its opposition to Mr. Walking Eagle's two identical motions for discovery or an evidentiary hearing, on grounds that the affidavit procedure it requests is a more expeditious, efficient method by which the court can evaluate the claims of ineffective assistance of counsel in the habeas petition. See Docket No. 20, at 2, n.1.
Mr. Walking Eagle's response to the government's renewed motion is styled as a "motion in opposition of [government's] renewed motion for order directing affidavits, and opposing [defendant's] request for an evidentiary hearing." Docket No. 22. He opposes the government's renewed motion, based on his belief that if the motion is granted, the government will unfairly develop the facts in the light most favorable to its position. See Docket No. 22.
Mr. Walking Eagle renews his motion for an evidentiary hearing, so that he may have an opportunity to develop the facts of his case according to his own interests. Id. He also renews his request in the alternative for leave to "develop interrogatories to lead the fact development, instead of the Government." Id. He also moves the court to appoint counsel for him, pursuant to Rule 8 of the § 2255 Rules. Id.
The fifth and final motion pending before the court is Mr. Walking Eagle's motion for sanctions against the government. Docket No. 23. He invokes Federal Rule of Civil Procedure 11(c)(1) and (2) in support of his position that sanctions are justified due to the government's "grossly negligent" failure to properly serve papers. Id. Specifically, he states that the government's first motion for affidavits (which the court denied) was never served on him or on former counsel. He alleges that the government is failing to mark documents mailed to him as "legal mail," which causes the mail to be processed by the Bureau of Prisons more slowly as regular mail. Id. at 2.
On July 1, 2011, the government submitted a memorandum in response to the various motions filed by Mr. Walking Eagle. Docket No. 24. The government again indicated its position that submission of affidavits from former counsel is a more expeditious means than engaging in formal discovery.
Id. at 1. The government asserts that any ruling on the motions for discovery or an evidentiary hearing would be premature at this time, since the court must first consider the original § 2255 petition and the government's formal answer before it can determine whether discovery or an evidentiary hearing is warranted. Id. at 2. The government asserts that sanctions are not warranted because Mr. Walking Eagle has not shown that he was prejudiced by any delay in receipt or failure to receive any documents. Id. The government requests that the court hold the various motions in abeyance until the government is able to answer the ...