CCA Recordings 2255 Litig. v. United States

• Decision Date: 18 January 2021
• Docket Number: Case No. 19-cv-2491-JAR-JPO
• Parties: In re: CCA Recordings 2255 Litigation, Petitioners, v. United States of America, Respondent.
• Court: U.S. District Court — District of Kansas

In re: CCA Recordings 2255 Litigation, Petitioners, v. United States of America, Respondent.

Case No. 19-cv-2491-JAR-JPO

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

January 18, 2021

(This Document Relates to All Cases)

MEMORANDUM AND ORDER

In its Memorandum and Order dated October 15, 2020, this Court asked for supplemental briefing on issues related to two categories of legal defenses raised by the government: (1) defenses the government characterized as jurisdictional, and (2) collateral-attack waiver by plea.¹ The government subsequently filed an additional motion requesting the Court to require the petitioners to comply with Rule 2(b) of the Rules Governing Section 2255 Proceedings, which it also characterizes as jurisdictional.² After reviewing the parties' submissions, the Court ordered additional briefing on the application of Tollett v. Henderson³ and its progeny to cases in which the petitioner pleaded guilty pursuant to the standard plea agreement utilized by the government in the District of Kansas.⁴ The parties have made their additional submissions and the Court is prepared to rule on these issues.⁵

I. Introduction

The Court assumes the reader is familiar with its ruling in another criminal case in the District of Kansas, United States v. Carter et al. (the "Black Order") that precipitates the § 2255 motions before the Court.⁶ That comprehensive opinion was intended to provide a record for future consideration of the many anticipated motions filed pursuant to 28 U.S.C. § 2255 and is incorporated by reference herein. The Court likewise assumes the reader is familiar with the proceedings in the consolidated master case that precipitate the matter before the Court. The Court does not restate the underlying facts and conclusions of law in the Black Order or these proceedings in detail but will provide excerpts from the orders and record as needed to frame its discussion of the issues presently before it.

During the Black investigation, the Department of Justice ("DOJ") and the Office of the United States Attorney ("USAO") repeatedly urged that the appropriate mechanism for investigation of any alleged Sixth Amendment violations is through 28 U.S.C. § 2255 litigation. In the Black Order, the Court attempted to provide a roadmap for future consideration of the many cases pending on these issues under § 2255. Although many common issues overlap in the individual Sixth Amendment claims, the Court stressed that particularized findings must be made with respect to each § 2255 claimant. The Court made clear the common legal standards that will govern in those proceedings and what must remain pending for particularized findings in each case. The Order also created an evidentiary record to inform the individualized determinations required in § 2255 litigation. And by reassigning the habeas actions to theundersigned and consolidating the cases for discovery, it was the Court's intent that the process for seeing over 100 cases to completion would be streamlined for all parties.

Pending before the Court are 106 motions seeking relief under § 2255 based on alleged violations by the government of petitioners' Sixth Amendment rights. All but six of these motions involve petitioners who entered a guilty plea; six petitioners proceeded to trial and were convicted by a jury. Building from the findings and conclusions in the Black Order, petitioners allege across the board the same basis for relief: that once a petitioner shows the government intruded into the attorney-client relationship by intentionally and unjustifiably becoming privy to attorney-client communications, this Court must grant that petitioner's § 2255 motion, leaving only the question of determining what remedy to impose.⁷ Each petitioner asks the Court to impose the same remedy for this constitutional violation: to vacate the judgment and discharge the petitioner immediately, with prejudice to further prosecution, or alternatively, to reduce the sentence by 50%.⁸

As the supplemental issues discussed in this Order illustrate, however, petitioners' all-or-nothing approach is antithetical to the individual procedural barriers, standards, and burdens of proof each petitioner faces in seeking habeas relief. Petitioners' approach does not take into consideration whether a petitioner pleaded guilty or proceeded to trial, the nature of the sentence imposed, the timing of the alleged Sixth Amendment violation, or whether petitioner remains in custody. Likewise, the government's scorched-earth approach to defending the motions has compounded the Court's ability to conduct a meaningful initial review as required by the Rules Governing Section 2255 Proceedings. Disputes over discovery and whether the recordings areprotected by the Sixth Amendment consumed much of the parties' and Court's attention during the first year of these consolidated proceedings, ultimately ending with the Court reviewing hundreds of audio and video recordings and imposing discovery sanctions against the government. The government's latest procedural fencing invoking a Rule to require all petitioners to certify their motions—made over a year into these consolidated proceedings in the wake of the government's demand that the Court rule immediately on its myriad procedural defenses—further delayed this Court's review.

At this juncture, the Court advises the parties that particularized consideration will be given to each petition, and any future briefing, motions, and arguments should likewise give each petition individual attention. The Supreme Court has described the habeas writ as "both the symbol and guardian of individual liberty."⁹ While deterrence and correction of governmental misconduct are also available consequences of habeas relief, petitions are initiated and considered with respect to the propriety of restraints on individual liberty. Dozens of petitions have been collected together in this action for efficient handling, but each petition must ultimately stand or fall on its own. Sweeping claims about misconduct or deterrence interests put potentially meritorious petitions at risk when their survival is staked to other petitions that are unlikely to survive the rigorous requirements and limitations of collateral relief. Similarly, lumping materially dissimilar petitions together in an attempt to dismiss large swaths of claims or petitions does not enable this Court to evaluate the injuries and liberty interests at stake for the many aggrieved individuals who have petitioned this Court for help.

Given the number of cases affected by the issues presently before the Court, it will again endeavor to establish legal standards common to various categories of petitioners, withindividualized application to follow for each petitioner. The Court begins by discussing the standard in the Tenth Circuit for Sixth Amendment intentional-intrusion claims invoked by petitioners as the basis for their § 2255 motions for habeas relief. Next, the Court addresses the collateral-attack waiver defense and application of the so-called Tollett rule to cases in which petitioners pleaded guilty. Finally, the Court addresses numerous jurisdictional defenses raised by the government, including standing, mootness, and certification requirements under Rule 2(b).

II. Sixth Amendment Standard

Throughout the Black case and continuing with these consolidated § 2255 proceedings, the parties have debated what is required to establish a violation of the Sixth Amendment based on the government's alleged intentional intrusion into petitioners' protected attorney-client communications. Review of the applicable law and the Court's prior rulings leading up to this dispute frame the issues presently before the Court. Because the parties' arguments have evolved since the Black Order was issued, and in light of the government's position that the Order does not control this § 2255 proceeding, the Court reaffirms its analysis and legal determinations here.

A. Overview

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for defense."¹⁰ This right is "indispensable to the fair administration of our adversarial system of criminal justice."¹¹ It "safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding."¹² There are threegeneral components to the Sixth Amendment right to counsel: (1) the absolute right to be represented by counsel in a criminal proceeding that could result in imprisonment; (2) the qualified right to counsel of one's choice; and (3) the right to effective assistance of counsel.¹³

Government intrusion claims like those at issue here are one of four categories of cases to be considered when deciding if a defendant has been denied the right to effective assistance of counsel. These categories are "distinguished by the severity of the deprivation and the showing of prejudice required of the defendant in order to succeed on his claim."¹⁴ Generally speaking, these categories are: (1) general ineffective assistance of counsel claims analyzed under the familiar Strickland v. Washington two-pronged framework;¹⁵ (2) severe circumstances that constitute per se violations;¹⁶ (3) cases where counsel labored under an actual conflict of interest;¹⁷ and (4) government invasions of the attorney-client relationship.¹⁸

In addition to prohibiting the government from preventing the accused from obtaining assistance of counsel, the Sixth Amendment imposes an affirmative obligation on the government "not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel."¹⁹ This second category of per se violation claims includes "various kinds of state interference with counsel's assistance."²⁰ The Supreme Court has held that in verylimited circumstances, the government violates the Sixth Amendment when it intrudes on the attorney-client relationship, preventing counsel...