The opinion of the court was delivered by: Veronica L. Duffy United States Magistrate Judge
COUNSEL TO PROVIDE AFFIDAVITS
Having been convicted of two counts of abusive sexual contact (a violation of 18 U.S.C. §§ 1153 and 2244(a)(3)), and sentenced to 48 months imprisonment, petitioner Charles Little Bear filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Docket No. 1. The district court, the Honorable Karen E. Schreier, Chief Judge, ordered respondent the United States of America (government) to respond to Mr. Little Bear's motion. See Docket No. 3.
In order to carry out the court's directive that it respond, the government sought an order directing Mr. Little Bear's former counsel to provide affidavits to the government addressing the claims of ineffective assistance of counsel raised in Mr. Little Bear's motion. See Docket No. 4. Mr. Little Bear's former counsel objected to the government's request. See Docket No. 6.
Subsequently, the district court referred this entire case to this magistrate judge. See Docket No. 11.
The limited issue decided by the court in this order is whether Mr. Little Bear's former counsel may ethically provide an affidavit to the government responsive to the claims of ineffective assistance of counsel raised by Mr. Little Bear. As to that limited issue, the following facts are relevant.
Mr. Little Bear's December 17, 2009, convictions followed a full jury trial, at which he was represented by assistant Federal Public Defender George Grassby. He was sentenced on April 5, 2010, to two 24-month terms of incarceration, to run consecutively for a total of 48 months. A direct appeal to the Eighth Circuit was timely filed on his behalf two days later.
On appeal, Mr. Grassby represented Mr. Little Bear in oral argument, and Mark Falk, also an assistant Federal Public Defender, wrote the appellate briefs. In his initial brief on appeal, Mr. Little Bear's counsel raised six issues, the first three having to do with his conviction, and the last three having to do with the sentence imposed. See Docket No. 8-1. The government filed a responsive brief, after which Mr. Little Bear filed a reply brief. Id. In the reply brief, Mr. Little Bear withdrew all three issues having to do with his conviction. Id. Thus, the only issues presented to the Eighth Circuit bore on the sentence imposed, not the conviction. Id.
The Eighth Circuit affirmed the district court's sentence in an opinion issued February 25, 2011. Mr. Little Bear sought review by the United States Supreme Court. The Supreme Court denied his petition for certiorari on March 18, 2011. Mr. Little Bear filed his motion to vacate, set aside, or correct his sentence on April 4, 2011.
In his motion, Mr. Little Bear asserts four claims that his counsel was constitutionally ineffective, depriving him of his right to counsel guaranteed by the Sixth Amendment to the United States Constitution. The first claim Mr. Little Bear makes is that Mr. Grassby was ineffective by failing to investigate, interview, and call as a trial witness the mother of the victim in his case. Mr. Little Bear asserts that the mother would have provided an alibi for him and would have testified that the victim had a habit of lying. In his second, third, and fourth claims, Mr. Little Bear asserts that his counsel was ineffective in handling his appeal by withdrawing the three issues having to do with his conviction (one claim of ineffective assistance is associated with each withdrawn claim).
The government points out that, from the appellate briefs filed on Mr. Little Bear's behalf, it can glean the fact that the three issues having to do with review of the conviction in this case were withdrawn. However, the record on appeal does not reveal why those issues were withdrawn. Hence, in order to respond to Mr. Little Bear's allegations of ineffective assistance, the government needs Mr. Little Bear's former counsel to explain why these issues were withdrawn. Similarly, the government does not know what efforts were made by Mr. Little Bear to investigate the potential testimony of the victim's mother and the reasons why she was not called as a witness at trial.
Mr. Grassby objects to providing an affidavit to the government. He relies upon Formal Opinion 10-456 from the American Bar Association and Model Rule 1.6(a) and (b) in arguing that the provision of an affidavit would cause ...