The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge
MEMORANDUM DECISION AND ORDER
Pending before the Court are the Government's Motion for Order Concerning Attorney-Client Privilege and to Stay the Instant Proceedings (Dkt. 4), Sperow's Application for Leave to Proceed in Forma Pauperis (Dkt. 7), and Sperow's Motion to Amend Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 and Motion for Transcripts (Dkt. 9). The Court will grant the Government's Motion and Sperow's Application for Leave to Proceed in Forma Pauperis, deny Sperow's Motion to Amend, and find Sperow's Motion for Transcripts to be moot.
A. Motion for Order Concerning Attorney-Client Privilege and Stay
Based on Sperow's several claims of ineffectiveness assistance of counsel arising out of attorney Philip H. Gordon's representation during multiple phases of the underlying criminal case, the Government requests that the Court declare a limited waiver of the attorney-client privilege so that it may meaningfully respond to Sperow's claims of ineffective assistance of counsel. Sperow has not responded to the Motion.
A party implicitly waives the attorney-client privilege when he files a lawsuit putting in issue communications otherwise privileged if upholding the privilege would deny the opposing party access to relevant facts. United States v. Amlani, 169 F.3d 1189, 1195 (9th Cir. 1999). "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." Bittaker v. Woodford, 331 F.3d 715, 716 (9th Cir. 2003) (en banc). Indeed, this implied waiver -- sometimes known as the "fairness principle" -- prevents use of the privilege as both a shield and a sword. Id. at 719 (citations omitted). If the party holding the privilege does not wish to disclose the requested privileged information, he has the option of abandoning the claim that gives rise to the implied waiver. Id. at 721.
Being mindful of the dictates of fairness, a court should grant a waiver no broader than necessary to enable the opposing party to respond to the allegations of ineffective assistance of counsel. Id. at 720. Accordingly, the district court may impose limitations and conditions regarding the information to be disclosed. Id. at 721. Should the party receiving the privileged information not wish to be bound by the limitations, then that party, before disclosure, "is free to reject the materials and litigate without them." Id.
In his § 2255 Motion, Sperow alleged sixteen claims of ineffective assistance of counsel. The Court must resolve those claims utilizing the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). In other words, giving strong deference to the choices of counsel, it must decide whether counsel's performance was deficient, and, if so, whether Sperow was prejudiced by the deficient performance. Id. at 688. In addressing the deficient performance prong of the Strickland standard, the Court must determine whether a challenged decision was sound trial strategy and, therefore, virtually unchallengeable. Id. at 690.
As the Government contends, without knowing the extent of the communications surrounding the alleged ineffective assistance, the advice of counsel, and any discussions regarding counsel's actions or inactions, it cannot respond meaningfully to Sperow's allegations. In order to respond to or rebut Sperow's allegations, therefore, fairness compels a decision to allow the Government to discuss the claims and motivations for the challenged actions with defense counsel. See, e.g., Harrison v. United States, 2011 WL 1743738 at *5 (D. Haw. May 6, 2011) ("In order to rebut Petitioner's allegations that Petitioner's counsel provided ineffective assistance, the Government is entitled to discuss with Petitioner's counsel what rational (sic), if any, motivated the decisions of which Petitioner now complains. Strickland requires no less."); United States v. Curiel, 2011 WL 940051 at *2 (E.D.Cal. Mar. 16, 2011) (finding the Government entitled to oral and written information from defense counsel regarding communications pertaining to the Presentence Report ("PSR") in order to respond to movant's claim that he was denied the opportunity to read and review the PSR prior to sentencing).
The Court finds that Sperow has implicitly waived the attorney-client privilege with respect to matters pertaining to his claims of ineffective assistance of counsel. Therefore, the Court will grant the Motion for Order Concerning Attorney-Client Privilege subject to the terms of the Order below.
The Government has also requested that the March 29, 2012 Order (Dkt. 2) requesting the Government to respond to Sperow's § 2255 Motion be stayed until it has had an opportunity to speak with counsel and/or review his affidavit regarding the issues raised in the § 2255 Motion. The Court will grant the Motion to Stay.
B. Application for Leave to Proceed in Forma Pauperis
In its April 25, 2012 Order (Dkt. 6), the Court directed Sperow to submit a Prisoner Application to Proceed in Forma Pauperis with the required current trust account statement from his Bureau of Prisons institution rather than relying on the Court's previous determination in the underlying criminal proceeding that he was indigent. He has complied with the Order. The Court has reviewed Sperow's submissions and determined that he is entitled to in forma pauperis status.
C. Motion to Amend Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 ...