United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court are defendant Jack Jim Clark's motion to
reconsider (Dkt. # 90), motion to determine the
constitutional validity of the appointment to office of
Charles M. McLoughlin (Dkt. # 91), motion for leave to
conduct discovery (Dkt. # 92), and motion to unseal and for
other relief (Dkt. # 100).
1, 2019, defendant, a federal prisoner appearing pro
se, filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 (Dkt. # 79).
Defendant raises four grounds for relief in his § 2255
motion. First, defendant argues that his former defense
attorney, Martin G. Hart, was ineffective in violation of the
Sixth Amendment by (1) failing to know the law; (2) failing
to investigate the district court's jurisdiction and
judicial power; (3) failing to move to dismiss for lack of an
Article III live case or controversy; and (4) failing to
determine and argue that the district court lacked subject
matter jurisdiction. Id. at 4. Second, defendant
argues that plaintiff was not represented by a properly
appointed officer of the United States, rendering the
indictment unconstitutional. Id. at 5. Third,
defendant argues that 28 U.S.C. § 116(a) is in violation
of the Treaties of 1832, 1833, 1856, and 1866, and that 28
U.S.C. § 547 and 18 U.S.C. §§ 287 and 1341 do
not apply inside the Creek Nation's boundaries.
Id. at 6. Finally, defendant argues that Hart
provided ineffective assistance of counsel in violation of
the Sixth Amendment by failing to obtain and review the first
three indictments to determine if the third superseding
indictment related back to the first three indictments, and,
if not, for failing to move to dismiss counts one through 39
as barred by the statute of limitations. Id. at 8.
Court issued an order (Dkt. # 83) directing plaintiff to
respond to defendant's § 2255 motion. Plaintiff
contacted Hart in order to gather evidence to respond to
defendant's claims of ineffective assistance of counsel.
Dkt. # 85, at 1-2. Hart requested that, before he prepare an
affidavit addressing defendant's allegations, plaintiff
obtain an order from the Court declaring that defendant has
waived his attorney-client privilege by filing a § 2255
motion raising claims of ineffective assistance of counsel.
Id. On June 3, 2019, the Court granted
plaintiff's motion for an order recognizing that
defendant has waived attorney-client privilege with Hart;
however, the Court explicitly limited defendant's waiver
“to issues raised in his ineffective assistance of
counsel claims.” Dkt. # 89, at 1 (citing United
States v. Pinson, 584 F.3d 972 (10th Cir. 2009)).
Defendant now moves for reconsideration of the Court's
order. Plaintiff filed a response (Dkt. # 94) in opposition
to defendant's motion, and defendant filed a reply (Dkt.
addition, defendant moves to determine the constitutional
validity of the appointment to office of Charles M.
McLoughlin (Dkt. # 91), and moves for leave to conduct
discovery into documents or records that show McLoughlin
currently holds a proper appointment as an Assistant United
States Attorney (AUSA) (Dkt. # 92). Plaintiff filed a
response in opposition to each motion (Dkt. ## 95, 96), and
defendant filed a reply (Dkt. # 98). Finally, defendant moves
to unseal docket numbers 1, 470, and 471 in In re United
States Attorneys and Clerks, No. 09-MC-0005-CVE.
Court first addresses defendant's motion to reconsider.
“‘[A] motion to reconsider may be granted when
the court has misapprehended the facts, a party's
position, or the law.'” United States v.
Huff, 782 F.3d 1221, 1224 (10th Cir. 2015) (quoting
Servants of The Paraclete v. Does, 204 F.3d 1005,
1012 (10th Cir. 2000)). “‘Specific situations
where circumstances may warrant reconsideration include
‘(1) an intervening change in the controlling law, (2)
new evidence previously unavailable, and (3) the need to
correct clear error or prevent manifest
moves for reconsideration of the Court's order finding an
implied waiver of attorney-client privilege, because neither
plaintiff nor the Court has identified “a single
word” alleged by defendant in his § 2255 claims
that brings into question any communication between Hart and
defendant. Further, defendant argues that Hart can respond to
defendant's allegations of ineffective assistance of
counsel without having to make public any privileged
communication. Defendant also argues that the language
limiting the waiver to “issues raised in
[defendant's] ineffective assistance of counsel
claims” is too broad. Defendant concedes, however, that
he waives attorney-client privilege as to whether Hart
informed him of the three earlier indictments, and any advice
Hart gave defendant in relation to why he did not move to
dismiss counts one through 39.
fails to establish a sufficient basis for reconsideration.
Defendant does not argue that there was an intervening change
in the controlling law, or that there is new evidence that
was previously unavailable. Further, defendant does not
demonstrate that the Court's order constituted
“clear error” of law or fact, or that
reconsideration is necessary to “prevent manifest
injustice.” The established law in the Tenth Circuit is
that there is an “implied waiver of attorney-client
privilege that arises when a prisoner claims ineffective
assistance of counsel.” Pinson, 584 F.3d at
978. Here, defendant raises two claims of ineffective
assistance of counsel in his § 2255 motion. Thus,
consistent with Tenth Circuit precedent, the Court held that
defendant has implicitly waived attorney-client privilege
with respect to those two claims. Nonetheless, defendant
argues that there is no implicit waiver of attorney-client
privilege because neither plaintiff nor the Court has
“identified a single aspect of grounds one and four
[that] implicates a communication between Hart and
Defendant.” Dkt. # 90, at 3. Defendant fails to
realize, however, that raising a claim of ineffective
assistance of counsel, in and of itself, “puts
communications between himself and his attorney directly in
issue.” Pinson, 584 F.3d at 977. As the
Supreme Court explained in Strickland v. Washington,
466 U.S. 668, 691 (1984), “[t]he reasonableness of
counsel's actions may be determined or substantially
influenced by the defendant's own statements or
actions.” Therefore, “inquiry into counsel's
conversations with the defendant may be critical to a proper
assessment of counsel's” advice, investigation
decisions, and litigation decisions. Id.
with respect to the scope of the waiver, all parties agree
that defendant's waiver of attorney-client privilege is
limited “to issues raised in his ineffective assistance
of counsel claims” (i.e., ground one and four
of the § 2255 motion). Although defendant disagrees with
the scope of the waiver, defendant fails to show that the
Court's limitation constitutes a clear error of law or
fact. Accordingly, the Court finds that defendant has failed
to establish a sufficient basis for reconsideration, and
defendant's motion for reconsideration should be denied.
Court turns to defendant's motion to determine the
constitutional validity of McLoughlin's appointment to
office (Dkt. # 91), defendant's motion for leave to
conduct discovery (Dkt. # 92), and defendant's motion to
unseal documents (Dkt. # 100).
argues that AUSA McLoughlin's appointment under 28 U.S.C.
§ 542(a), which does not require appointment by
presidential nomination with advice and consent of the
Senate, violates the Appointments Clause. The Appointments
Clause of the U.S. Constitution requires “principal
officers” to be nominated and appointed by the
President, with advice and consent of the Senate. U.S. Const.
art. II, § 2, cl. 2. However, Congress may vest the
appointment of “inferior officers” in the
“President alone, in the Courts of Law, or in the Heads