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United States District Court, S.D. New York

January 12, 2004.


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge


Petitioner Alphonse Graziose ("Graziose") filed a writ of habeas corpus pursuant to 28 U.S.C. ยง 2255 to vacate his guilty plea. Graziose claims that because of a previous head injury, he failed to make a voluntary and knowing guilty plea. Graziose further claims that his trial counsel, Randy Scott Zelin ("Zelin"), rendered ineffective assistance by failing to bring Graziose's injury to the attention of the Court during the plea proceeding.

The Government wishes to call Zelin to testify at a hearing on January 16, 2004 concerning his discussions with Graziose. In a letter to the Court dated December 2, 2003, the Government requests an order finding that Graziose has waived his attorney-client: privilege. The Court deemed the letter to be a motion Page 2 returnable on December 17, 2003. No opposition has been received from Graziose.

  The attorney-client privilege cannot be used as both "a shield and a sword." United States v. Bilzerian, 1285, 1292 (2d Cir. 1991). The privilege "may implicitly be waived when a defendant asserts a claim that in fairness requires examination of protected communications." Id. When a convicted defendant raises an argument that his counsel was ineffective and bases that contention on privileged communications with his attorney, the attorney-client privilege is waived as to the contents of those discussions. See Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) ("It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer."); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) ("[w]hen a client calls into public question the competence of his attorney, the privilege is waived."). Several district courts in this Circuit have also held that the privilege is waived under such circumstances. See Coluccio v. United States, 289 F. Supp.2d 303, 304-05 (E.D.N.Y. 2003) ("a client is not free to make allegations of misconduct and incompetence while [the] attorney's lips are sealed.") (quoting Tasby, 504 F.2d at 336); Page 3 Davila-Bajana v. United States, No, CR90:929, 2002 WL 1268000, at *1 (E.D.N.Y. Mar. 29, 2002); United States v. Gallego, 944 F. Supp. 309, 322 (S.D.N.Y. 1996); United States v. Ternullo, 413 P. Supp. 301, 803 (S.D.N.Y. 1976) (Weinfeld, J.).

  The Second Circuit "require[s] that `except in highly-unusual circumstances,' the assertedly ineffective attorney should be afforded `an opportunity to be heard and to present evidence in the form of live testimony, affidavits, or briefs.'" Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998) (quoting. Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998)); see also McKee v. United States, 167 F.3d 108-09 (2d Cir. 1999) (remanding to provide allegedly ineffective lawyer an opportunity to be heard at an evidentiary hearing), Zelin's testimony is important to the determination of Graziose's ineffective assistance of counsel claim, and Zelin should have an opportunity to be heard.

  It is held that Graziose has waived his attorney-client privilege as to the contents of communications with Zelin and that Zelin may testify at the January 16 evidentiary hearing.

  It is so ordered. Page 1


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