United States v. Dunn

UNITED STATES OF AMERICA, Plaintiff, v. ALTON DUNN, Defendant.

No. 20-CR-6086L

United States District Court, W.D. New York

May 10, 2022

DECISION AND ORDER

DAVID G. LARIMER UNITED STATES DISTRICT JUDGE

Defendant Alton Dunn (“Dunn”) pleaded guilty pursuant to a written Plea Agreement (Dkt. #28) on July 8, 2020. Dunn pleaded guilty to two counts, possessing a quantity of marijuana with intent to distribute and possessing a firearm by a convicted felon. The calculated United States Sentencing Guidelines provided for a range of imprisonment from 70-87 months. The parties, however, submitted the plea to the Court pursuant to Fed. R. Crim. P. 11(c)(1)(C) with an agreed-upon sentence of 72 months, which was at the low end of the Guideline range.

The Plea Agreement also contained a provision precluding Dunn from appealing the agreed-upon sentence or commencing a proceeding collaterally attacking the judgment.

On July 26, 2021, the Court accepted the Plea Agreement and the Rule 11(c)(1)(C) agreement and sentenced Dunn principally to an aggregate term of 72 months imprisonment. No appeal was filed, but on March 30, 2022 (Dkt. #62), Dunn filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255. In his Petition, Dunn claims that his trial counsel was ineffective for failure to challenge the two charged counts as duplicitous and also claimed counsel was ineffective for failing to object to portions of the Presentence Report and to argue for a lesser sentence.

Additionally, Dunn claims counsel was ineffective for providing erroneous information about the charges and the consequences of the plea.

Thereafter the Government filed a motion (Dkt. #64) for an order compelling Dunn's trial attorney, Assistant Federal Public Defender Anne M. Burger to submit an affidavit regarding discussions she had with Dunn concerning the Plea Agreement, his decision to plead guilty, and whether Dunn requested a Notice of Appeal be filed.

Defense counsel filed a Memorandum in response to the Government's motion (Dkt. #67). Counsel suggested that the Government's motion was overly broad and unnecessary but, in lieu of an affidavit, counsel proposed disclosing three letters from her file to Dunn which addressed matters relevant to the Government's motion.

WAIVER OF ATTORNEY-CLIENT PRIVILEGE

Dunn has accused his attorney of providing ineffective assistance of counsel in several respects. The law is clear, and I have so-ruled in prior cases, that when counsel is challenged and attacked for providing ineffective assistance of counsel such an action by the client constitutes a waiver of the attorney-client privilege to the extent that counsel may discuss conversations relative to defendant's claims of ineffective assistance of counsel. See United States v Pinson, 584 F.3d 972, 977-78 (10^th Cir. 2009) (noting “unanimous federal authority” that when a habeas petitioner claims ineffective assistance of counsel he impliedly...