Pruitt v. Peyton
| Decision Date | 27 July 1965 |
| Docket Number | Misc. No. 4517. |
| Citation | 243 F. Supp. 907 |
| Parties | Calvin W. PRUITT, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Michael L. Soffin, Richmond, Va., for petitioner.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia, Richmond, Va., for respondent.
Following the remand of this case1 the Court directed a plenary hearing for the initial sole purpose of determining whether the petitioner knowingly and understandingly abandoned or deliberately bypassed the state court system in the course of procedures adopted by him in exhausting his state court remedies by way of habeas corpus.
Immediately the question arose as to the admissibility of correspondence between petitioner and his state court-appointed attorney.2 The respondent wishes to introduce the correspondence to establish his contention that petitioner deliberately bypassed the state court procedures available to him.
The background of this case is revealed in the opinion by Circuit Judge Bell and will not be repeated. It is sufficient to state that petitioner was accorded a plenary hearing in his state court application for a writ of habeas corpus; the decision of the trial judge was adverse to petitioner; the state court then appointed another attorney for the purpose of seeking a writ of error to the Supreme Court of Appeals of Virginia; the petition was timely filed and pending before Virginia's highest court when petitioner, acting on his own initiative, obtained an order withdrawing same. Prior to the entry of the order permitting the withdrawal of the appeal, petitioner presented his federal petition to this Court. The federal petition claims an exhaustion of state court remedies because of the contents of his petition filed by his state court-appointed counsel, which petition did not please the petitioner. Thus, the very ground for the indicated abandonment of state court remedies rests in the alleged failure of the state court-appointed attorney on appeal to recite in his petition certain facts and legal conclusions which petitioner claims should have been presented. In short, petitioner claims that his attorney was incompetent in presenting the petition for appeal.
We think that a reasonable interpretation of the Court of Appeals opinion requires us to interrogate both the petitioner and his state attorney. If this is not the meaning of this opinion, there is no need to inquire further as to whether petitioner intentionally abandoned his appeal. We do not suggest that correspondence, if any, touching upon the commission of the crime is admissible. If there be any such comments, the same may be excised. We merely hold that such correspondence or conversations, if any, relating to the withdrawal of the petition for writ of error and/or the filing of the federal petition are not within the attorney-client privilege rule.
It is well established that if a client assails his attorney's conduct of the case, or if a patient attacks his physician's treatment, the privilege as to confidential communications is waived, since the attorney or physician has a right to defend himself under the circumstances. United States v. Kendrick, 4 Cir., 331 F.2d 110; United States v. Wiggins, 184 F.Supp. 673. As this Court stated in United States v. Butler, 167 F. Supp. 102, aff'd. 4 Cir., 260 F.2d 574, where correspondence between petitioner and his attorney was introduced:
"While the rule with respect to privileged communications between attorney and client should be zealously guarded, yet this privilege may be destroyed by the acts of the client in attacking the attorney on a charge of dereliction of duty."
In Wiggins, supra, a post-conviction claim of incompetency to stand trial was treated as an implied attack on the trial attorney's performance, thus constituting a waiver of the privilege.
In his efforts to secure a reconsideration of this Court's order...
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...against the attorney's disclosure of communications to him by the client. United States v. Kendrick, 4 Cir., 331 F.2d 110; Pruitt v. Peyton, D.C., 243 F.Supp. 907; United States v. Butler, D.C., 167 F.Supp. 102, 104(2); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, 515(1--4).1 All statuto......
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