Fernandez-Rosa v. United States
- Richard Sullivan
- 1:23-cv-00544
- U.S. District Court · Southern District of New York
- 2
In Fernandez-Rosa v. United States, Judge Sullivan ordered former counsel to give sworn testimony in the pending challenge to Fernandez-Rosa’s conviction.
The order directly affects Hector Emilio Fernandez-Rosa, the government, and former attorneys Victor Rocha and Alvin Entin by setting testimony and briefing requirements in Fernandez-Rosa’s 28 U.S.C. § 2255 proceeding.
What happened
Fernandez-Rosa v. United States concerns Hector Emilio Fernandez-Rosa’s request to set aside or change his 2019 conviction and sentence. He pleaded guilty to conspiring to distribute and possess cocaine.
Fernandez-Rosa, who is incarcerated and representing himself, argues that his former attorneys, Victor Rocha and Alvin Entin, provided ineffective assistance. The government asked the court to require those attorneys to provide sworn statements and to require Fernandez-Rosa to sign a waiver of attorney-client confidentiality.
The court ruled that Fernandez-Rosa had already waived that confidentiality by raising ineffective-assistance claims, so a signed waiver was unnecessary. Judge Sullivan ordered the former attorneys to provide sworn testimony by November 7, 2023, and set deadlines for the government’s response and Fernandez-Rosa’s reply; the order did not decide the underlying petition.
The detailed version
- Fernandez-Rosa v. United States · No. 1:23-cv-00544
- Richard Sullivan
- Oct. 17, 2023
Background
Hector Emilio Fernandez-Rosa, who was incarcerated and proceeding without a lawyer, challenged his 2019 conviction and sentence under 28 U.S.C. § 2255. He had pleaded guilty to conspiring to distribute and possess cocaine, violating 21 U.S.C. § 846.
Fernandez-Rosa filed an initial § 2255 motion on January 19, 2023, challenging the legality of his sentence. He filed a second motion on March 6, 2023, challenging the same conviction. The court treated the second filing as a supplement and incorporated it into the original § 2255 application. Fernandez-Rosa argued that former attorneys Victor Rocha and Alvin Entin provided ineffective assistance of counsel.
Requests by the Government
After reviewing the motion papers, the government determined that testimony from Rocha and Entin was needed to respond to parts of the ineffective-assistance claims. It asked the court to require them to provide sworn testimony in an affidavit or affirmation. The government also asked the court to require Fernandez-Rosa to sign a waiver of attorney-client privilege, which generally protects confidential communications between a client and lawyer.
Court’s Order
The court held that a signed waiver was unnecessary because Fernandez-Rosa had already waived attorney-client privilege as a matter of law by asserting ineffective-assistance claims. The court nevertheless found that testimony from his former counsel was needed to resolve at least some parts of the petition.
The court ordered Rocha and Entin to provide sworn testimony addressing Fernandez-Rosa’s ineffective-assistance allegations by November 7, 2023. It ordered the government to file its opposition by November 28, 2023, and allowed Fernandez-Rosa to file a reply by December 19, 2023. The order did not resolve whether Fernandez-Rosa’s conviction or sentence should be vacated or modified. Richard J. Sullivan, a United States Circuit Judge sitting by designation, signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.