Opinion
Case No. 6:04-cr-126-Orl-19DAB.
November 27, 2006
ORDER
This cause came on for consideration without oral argument on the following motion filed herein:
MOTION: PETITION FOR ORDER DIRECTING ATTORNEY OF RECORD TO SURRENDER DEFENSE FILE (Doc. No. 160)
FILED: November 17, 2006 THEREON it is ORDERED that the motion is DENIED.
This pro se motion, filed post-conviction and post-appeal, seeks an Order directing Defendant's retained counsel to turn over counsel's file with respect to the defense of this case. The motion is denied for lack of jurisdiction.
As the Eleventh Circuit has noted:
Federal courts are courts of limited jurisdiction. Keene Corp. v. United States, 508 U.S. 200, 207, 113 S.Ct. 2035, 2040, 124 L.Ed.2d 118 (1993); Delaware v. Van Arsdall, 475 U.S. 673, 692, 106 S.Ct. 1431, 1442, 89 L.Ed.2d 674 (1986); Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). As the Supreme Court has reminded us, "the Court early in its history wisely adopted a presumption that every federal court is without jurisdiction unless the contrary affirmatively appears from the record." Van Arsdall, 475 U.S. at 692, 106 S.Ct. at 1442 (internal citations and marks omitted); accord Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 10, 1 L.Ed. 718 (1799) (explaining that, because a federal court is a court of limited jurisdiction, "the fair presumption is AAA that a cause is without its jurisdiction, until the contrary appears."); Fitzgerald v. Seaboard Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985) ("[S]ince the courts of the United States are courts of limited jurisdiction, there is a presumption against its existence.") (internal marks omitted).United States v. Rojas, 429 F.3d 1317, 1320 (11th Cir. 2005) (holding no jurisdiction over contractual dispute between surety and bond obligor).
While this Court has jurisdiction over the criminal case, the case has long since concluded, there is no pending habeas petition and the instant motion sets forth no other basis for the Court to assume jurisdiction over the contractual dispute between Defendant and his retained attorney. See Sullens v. Carroll, 308 F.Supp. 311 (D.C. Fla. 1970) (no jurisdiction over what was essentially a malpractice action brought by a criminal defendant against his court appointed lawyer); Williams v. Dickinson, 1997 WL 208408 (N.D. Ill. 1997) (noting that legal malpractice claim against attorney who represented plaintiff in federal criminal prosecution could not be brought under 42 U.S.C. § 1983, and was "cognizable only by a state court and not by this federal court"); Chaverra-Cardona v. Schultz, 1989 WL 15930 (N.D .Ill. 1989) (dismissing legal malpractice claim against attorney who represented plaintiff in federal criminal prosecution for lack of subject matter jurisdiction, noting, among other findings, that the Code of Professional Conduct was not federal law, and plaintiff could not allege constitutional violation against private attorney).
The Court notes that the nature of the dispute over ownership of the defense file is a matter of state law, and Florida law recognizes that, under certain circumstances, an attorney has a possessory interest in a client's papers and files. See, for example, Foreman v. Behr, 866 So. 2d 705 (Fla. 2d DCA 2003). Also it is unclear whether the papers sought are those of the Defendant or merely papers created by counsel in the course of the representation. As this Court is without jurisdiction over this matter, it makes no finding with respect to the merits of the Petition.
As subject matter jurisdiction has not been shown, the motion is denied. DONE and ORDERED.