Criminal Action No. 6: 14-020-DCR-6 Civil Action No. 6: 17-033-DCR
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The United States Court of Appeals for the Sixth Circuit has vacated the Court's prior judgment on this matter [Record No. 388], remanding Defendant/Movant Robert Sheppard's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 for further proceedings. [Record Nos. 414 and 418] The Sixth Circuit has advised that development of the record regarding Sheppard's ineffective assistance of sentencing counsel claims is warranted. Therefore, the Court will refer this matter to a United States Magistrate Judge to set a briefing schedule and submit a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and General Order 18-22.
Additionally, the docket sheet indicates that Sheppard now has a pending motion to amend his § 2255 motion. [Record No. 385] The Court granted this motion to amend before it initially dismissed the § 2255 motion, and it will likewise grant the motion to amend on remand.
Finally, the Sixth Circuit has made clear that further development of the record is necessary. Therefore, the United States will need to contact Sheppard's prior counsel for sentencing. In this regard, the Court notes that authority from several circuits, including this circuit, would indicate that the defendant has waived his otherwise valid assertion of attorney-client privilege with respect to the specific matters raised in his § 2255 motion. See United States v. Pinson, 584 F.3d 972, 977 (10th Cir. 2009), cert. denied, 559 U.S. 955 (2010); In re Lott, 424 F.3d 446, 453 (6th Cir. 2005); Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (en banc); Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974); and Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967).
Accordingly, it is hereby ORDERED as follows:
1. The Clerk of Court is DIRECTED to refer this matter to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and General Order 18-22. The United States Magistrate Judge will set a briefing schedule for the parties and prepare a report and recommendation on the motion.
2. Defendant Robert Sheppard's motion to amend his motion 28 U.S.C. § 2255 [Record No. 385] is GRANTED.
3. On or before March 3, 2020, Defendant Sheppard is DIRECTED to respond to the question of whether he has waived the attorney-client privilege regarding all claims of ineffective assistance of counsel concerning his motion filed pursuant to 28 U.S.C. § 2255. [Record No. 192] Sheppard is advised that a finding of implied waiver will result in the United States being allowed to contact his former attorneys for the purpose of obtaining information necessary to respond to his claims of ineffective assistance of counsel.
Dated: February 11, 2020.
Danny C. Reeves, Chief Judge
United States District Court
Eastern District of Kentucky