Pena v. United States

Background

Starley Pena filed a petition under 28 U.S.C. § 2255 alleging ineffective assistance of counsel. The Government determined that testimony from Pena’s former counsel, Robert Alexander Osuna, of the Law Firm of Robert Osuna, P.C., was needed to respond to the petition. After reviewing the petition, the court reached the same conclusion.

Attorney-client privilege and informed consent

The court stated that by filing the petition, Pena waived attorney-client privilege as a matter of law, but it also recognized that ethical concerns could prevent former counsel from disclosing confidential information without a court order or informed consent. The attached waiver form states that Pena’s authorization would permit Osuna to disclose confidential communications only in response to a court order and only as necessary to address Pena’s ineffective-assistance allegations. The form also warns that former counsel’s testimony could contradict Pena’s statements and that the court may deny the petition if Pena does not authorize the testimony.

Order and deadlines

The court ordered Pena to execute and file the Attorney-Client Privilege Waiver (Informed Consent) form within 21 days after the order’s date. Within 21 days after the executed waiver is filed, Osuna must provide sworn testimony in the form of a declaration addressing Pena’s allegations. The Government then has 30 days after the declaration is filed to submit an answer or other response, and Pena has 30 days after being served with the Government’s response to reply. Unless the court orders otherwise, the petition will be considered fully submitted after that reply. Judge Ronnie Abrams did not decide the merits of Pena’s ineffective-assistance claims in this order.