United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL CHIEF U.S. DISTRICT COURT JUDGE
Court has before it several motions. The Court will address
each of the motions below.
Petitioner's Motions to Appoint Counsel, Motions to
Compel Discovery, and Motions for Hearing (Dkts. 4, 6, 8, 9,
18, & 19)
habeas petitioner is not entitled to discovery as a matter of
ordinary course. Bracy v. Gramley, 520 U.S. 899, 904
(1997). Rule 6(a) of Rules Governing Section 2255 Proceedings
does allow a judge, for good cause, to "authorize a
party to conduct discovery under the Federal Rules of
Criminal Procedure or Civil Procedure, or in accordance with
the practices and principles of law." Rule 6(a) of Rules
Governing Section 2255 Proceedings. The Rule also that
"[i]f necessary for effective discovery, the judge must
appoint an attorney for a moving party who qualifies to have
counsel appointed under 18 U.S.C. § 3006A." Rule
6(a) of Rules Governing Section 2255 Proceedings. Further,
Rule 8 provides that the court "must review the answer,
any transcripts and records of prior proceedings, and any
materials submitted under Rule 7 to determine whether an
evidentiary hearing is warranted.
Ortega's requests do not qualify for appointment of
counsel, a hearing, or an order to compel the government. The
Government has explained that it will review Ortega-000185,
that pictures containing drugs or guns will be set apart and
sent to the defendant, and that the government will file with
the court an original copy of Ortega-000185 as well as a copy
of what was provided to the defendant under seal. This will
provide Ortega access to the material he requests and provide
the Court with the ability to oversee the process.
Accordingly, the Court will deny the motions.
Motion for Leave to Supplement (Dkt. 7)
asks to supplement his 2255 motion. The defendant filed his
request to amend the record within the one-year time limit
set forth in § 2255(f). A habeas petition may be amended
"as provided in the rules of procedure applicable to
civil actions." 28 U.S.C. § 2242; see also Rule 12,
Rules Governing Section 2255 Proceedings. The defendant has
not previously amended his petition, and the Government has
not responded. "Before a responsive pleading is served,
pleadings may be amended once as a 'matter of
course,' i.e., without seeking court leave."
Mayle v. Felix, 545 U.S. 644, 655 (2005) (quoting
Fed.R.Civ.P. 15(a)(1)) (habeas case resolving conflict
regarding the relation back of habeas petition amendments
under Rule 15(c)(2)). Accordingly, the Court will grant the
motion and deem the supplemental memorandum filed.
Motion for Order Granting Waiver (Dkt. 17)
Government asks for an order granting a waiver of the
attorney-client privilege (Dkt. 17). Ortega does not oppose
the motion, but asks that it be limited.
implicitly waives the attorney-client privilege when they
file 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.
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
§ 2255 Motion, Ortega alleges 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 Ortega was prejudiced by the deficient performance.
Id. at 688.
knowing the extent of the communications surrounding the
alleged ineffective assistance, the advice of counsel, and
any discussions regarding counsel's actions or inactions,
the government cannot respond meaningfully to the
allegations. To respond to Ortega'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).
Court finds that Ortega has implicitly waived the
attorney-client privilege with respect to matters pertaining
to his claims of ineffective assistance of counsel and will
therefore grant the government's motion. Moreover, the
Court will not limit the waiver beyond that requested by the
Government. Ortega cites a District of California case for
the proposition that the Court should limit the discovery and
potentially review itself. See United States v.
Prado, 2009 WL 4018147 (E.D. Cal. 2009). But that is not
what Prado stands for. In Prado, the