Houff v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
MATTHEW THOMAS HOUFF,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:22-CV-04070-KES
ORDER
This matter is before the court on movant Matthew Thomas Houff’s
motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In his motion, Mr. Houff makes several claims for relief based upon
the allegedly ineffective assistance of counsel he received from his former
defense counsel, Ryan Kolbeck. See Docket No. 1. The United States of
America (“government”) has requested an order directing former defense
counsel to file an affidavit responding to Mr. Houff’s claims of ineffective
assistance as set forth in his motion. See Docket No. 7.
The Eighth Circuit Court of Appeals has recognized that the attorney-
client privilege may be impliedly waived when a client attacks his former
attorney’s competence and raises the issue of ineffectiveness or incompetence
of counsel. See Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974).
ABA Model Rule of Professional Conduct 1.6 also recognizes that a disclosure
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may be impliedly authorized under certain circumstances including when a
lawyer must “respond to allegations in any proceeding concerning the lawyer’s
representation of [their] client.”
The American Bar Association, however, has issued an opinion advising
that former counsel confronted with a client making ineffective assistance of
counsel claims, consistent with their ethical obligations (1) may not disclose
information imparted to him or her in confidence without first obtaining the
informed consent of the former client; and (2) may only disclose such
information in “court-supervised testimony.” ABA Comm. on Eth. and Prof’l
Responsibility, Formal Op. 10-456 (July 14, 2010).
In consideration of the allegations set forth in Mr. Houff’s motion under
28 U.S.C. § 2255, this court has determined that the government cannot
respond to the allegations of ineffective assistance of counsel without attorney
Ryan Kolbeck responding by affidavit to the specific allegations in the motion
concerning his representation of Mr. Houff. If Mr. Houff opposes the waiver of
the attorney-client privilege as it relates to the specific allegations in his motion
under 28 U.S.C. § 2255, those allegations will be stricken from Mr. Houff’s
motion under 28 U.S.C. § 2255. Accordingly,
IT IS HEREBY ORDERED:
1. The government’s motion (Docket No. 7) directing former defense
counsel to respond is granted as follows:
A. That the clerk shall send this order and the attached
attorney-client privilege waiver form to Mr. Houff;
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B. That if the attorney-client privilege waiver form is not signed
and returned to the clerk for filing within 30 days, the
allegations of ineffective assistance of counsel will be
stricken from Mr. Houff’s motion under 28 U.S.C. § 2255;
C. That if the attorney-client privilege waiver form is signed and
filed, the government shall forward a copy of the signed
attorney-client privilege waiver form to Ryan Kolbeck, along
with a copy of this order and Mr. Houff’s motion pursuant to
§ 2255 (Docket No. 1). Attorney Ryan Kolbeck shall within
21 days of receiving the attorney-client privilege waiver form
provide and file with the clerk an affidavit responding to the
specific allegations in the § 2255 motion concerning his
representation of Mr. Houff.
D. The government shall promptly thereafter serve a copy of
Mr. Kolbeck’s affidavit upon Mr. Houff.
2. The government’s motion for extension of time (Docket No. 7) is
granted; the government shall file its response to Mr. Houff’s
motion no later than 30 days after Mr. Kolbeck’s affidavit has been
received.
DATED June 22, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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