United States District Court, D. New Jersey
G. SHERIDAN United States District Judge
Lee Jones seeks reconsideration of this Court's order
permitting Respondent United States to interview his trial
counsel. (ECF No. 12). For the following reasons, the motion
is currently incarcerated at the Federal Correctional
Institution in Cumberland, Maryland serving a sentence for
possession with intent to distribute heroin, 21 U.S.C.
§§ 841(a), (b)(1)(C); 18 U.S.C. § 2, and being
a felon in possession of a firearm, 18 U.S.C. §
922(g)(1). See United States v. Jones, 14-cr-0669
(D.N.J. Sept. 29, 2016). Petitioner submitted a motion to
correct, vacate, or set aside his federal sentence pursuant
to 28 U.S.C. § 2255 and a motion to appoint pro bono
counsel on September 5, 2017. (ECF Nos. 1-2).
original filing raised six ineffective assistance of trial
counsel claims. The Court administratively terminated the
petition as the submission was incomplete. (ECF No. 3). The
Court denied the motion to appoint pro bono counsel. (ECF No.
3). Petitioner filed an amended petition, (ECF No. 5), and a
new motion to appoint pro bono counsel, (ECF No. 6). The
Court ordered the United States to answer the petition on
November 7, 2017. (ECF No. 8).
November 9, 2017, the Court received a letter from Petitioner
indicating he was under the impression that the Court had
granted his renewed motion to appoint counsel and asked the
Clerk's Office provide him with the attorney's
contact information. (ECF No. 9). The United States requested
permission to interview Petitioner's trial counsel
regarding the issues raised in the § 2255 motion. (ECF
No. 10). The Court granted the request and issued an
appropriate order. (ECF No. 11). On December 18, 2017,
Petitioner filed a motion for reconsideration of the
Court's order permitting the United States to interview
his trial counsel. (ECF No. 12).
Civil Rule 7.1 allows a party to seek a motion for reargument
or reconsideration of "matter[s] or controlling
decisions which the party believes the Judge or Magistrate
Judge has overlooked ...." Local Civ. R. 7.1(i). Whether
to grant a motion for reconsideration is a matter within the
Court's discretion, but it should only be granted where
such facts or legal authority were indeed presented but
overlooked. See DeLong v. Raymond Int'l Inc.,
622 F.2d 1135, 1140 (3d Cir. 1980), overruled on other
grounds by Croker v. Boeing Co., 662 F.2d 975 (3d Cir.
1981); see also Williams v. Sullivan, 818 F.Supp.
92, 93 (D.N.J. 1993).
prevail on a motion for reconsideration, the movant must
show: "(1) an intervening change in the controlling law;
(2) the availability of new evidence that was not available
when the court... [rendered the judgment in question]; or (3)
the need to correct a clear error of law or fact or to
prevent manifest injustice." U.S. ex rel. Shumann v.
Astrazeneca Pharm. L.P., 769 F.3d 837, 848-49 (3d Cir.
2014) (citing Max's Seafood Cafe ex rel. Lou-Ann,
Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999)).
The standard of review involved in a motion for
reconsideration is high and relief is to be granted
sparingly. United States v. Jones, 158 F.R.D. 309,
314 (D.N.J. 1994). "The Court will grant a motion for
reconsideration only where its prior decision has overlooked
a factual or legal issue that may alter the disposition of
the matter. The word 'overlooked' is the operative
term in the Rule." Andreyko v. Sunrise Sr. Living,
Inc., 993 F.Supp.2d 475, 478 (D.N.J. 2014) (internal
citations and quotation marks omitted). Mere disagreement
with the Court's decision is not a basis for
reconsideration. United States v. Compaction Sys.
Corp., 88 F.Supp.2d 339, 345 (D.N.J. 1999).
argues that permitting the United States to interview his
former trial counsel "violates codes of ethic standards
and constitutional rights and it's an unfair practice
that leaves petitioner at a disadvantage." (ECF No. 12
¶ 1). He states that the Court granted Petitioner's
motion for the appointment of counsel and then unjustifiably
closed the § 2255 proceedings in order to rescind the
appointment of counsel. (ECF No. 12 ¶ 2). He also seems
to be under the impression that the order means the United
States "represents" his former trial counsel and
asserts he is at a disadvantage because he is proceeding pro
se and the inmate paralegal who has been helping him will be
leaving soon. (ECF No. 12 ¶ 3).
appears to be invoking the attorney-client privilege. As the
Court noted in its order, Petitioner waived this privilege in
connection with each ineffective assistance of counsel claim
raised in his § 2255 motion: (1) counsel was ineffective
for failing to file a timely notice of appeal; (2) counsel
was ineffective for failing to object to, mitigate, or raise
on direct appeal that the sentencing judge erred in not
granting Petitioner's request to withdraw his
representation based on a conflict of interest; (3) counsel
was ineffective for failing to object to, mitigate, or raise
on direct appeal that the indictment was invalid; (4) counsel
was ineffective for failing to present mitigating evidence of
mental health issues during sentencing and on direct appeal;
(5) counsel was ineffective for failing to conduct a pretrial
investigation, prepare sentencing mitigation factors, and
preserve direct appeal for errors in base offense and career
offender enhancements; and (6) counsel was ineffective for
failing to object to, mitigate, or raise on direct appeal
that Petitioner's guilty plea was not entered
intelligently, voluntarily, and knowingly. (ECF No. 5; ECFNo.
party can waive the attorney client privilege by asserting
claims or defenses that put his or her attorney's advice
in issue in the litigation. For example, a client may waive
the privilege as to certain communications with a lawyer by
filing a malpractice action against the lawyer."
Rhom-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d
851, 863 (3d Cir. 1994). Other courts have applied this
standard to ineffective assistance of counsel claims, holding
that petitioners waived the attorney-client privilege as to
the specific claims being raised in their petitions. See
United States v. Pinson,584 F.3d 972, 978 (10th Cir.
2009) ("[W]hen a habeas petitioner claims ineffective
assistance of counsel, he impliedly waives attorney-client
privilege with respect to communications with his attorney
necessary to prove or disprove his claim."); In re
Lott,424 F.3d 446, 453 (6th Cir. 2005) ("The
implied waiver in habeas proceedings [is] the result of a
petitioner's assertion of his own counsel's
ineffectiveness."); Bittaker v. Woodford, 331
F.3d 715, 716 (9th Cir. 2003) (en banc) ("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.");
Johnson v. Alabama,256 F.3d 1156, 1178 (11th Cir.
2001) ("By alleging that his attorneys provided
ineffective assistance of counsel in their choice of a
defense strategy, ...