Opinion
Civil Action 2:08-CV-725, Criminal No. 2:06-CR-264(1).
May 4, 2010
ORDER and REPORT AND RECOMMENDATION
On July 25, 2008, and while his direct appeal was still pending, petitioner filed a motion to vacate under 28 U.S.C. § 2255. Doc. No. 45. In that motion, petitioner raised a claim of ineffective assistance of counsel and a claim of prosecutorial misconduct in connection with the peremptory strike of a juror; petitioner also referred to a "forthcoming" memorandum supporting these claims and suggested that he may assert additional claims following resolution of his direct appeal. Id. The matter was thereafter held in abeyance pending resolution of petitioner's direct appeal. Order, Doc. No. 51.
On January 13, 2009, the United States Court of Appeals for the Sixth Circuit affirmed petitioner's conviction, specifically rejecting petitioner's Batson challenge. Judgment, Doc. No. 52. Petitioner has filed nothing in this case since that time, including a memorandum in support of his claims. On April 21, 2010, this Court directed the United States to respond to petitioner's motion to vacate. Order, Doc. No. 54. This matter is now before the Court on the motion of the United States to dismiss or, alternatively, to hold the matter in abeyance pending petitioner's execution of a written waiver of the attorney client privilege as it may relate to his claim of ineffective assistance of counsel. Doc. No. 55.
In light of petitioner's failure to file a memorandum or to otherwise provide any factual support for his claim of ineffective assistance of counsel, in light of the Sixth Circuit's rejection of petitioner's Batson claim, and in light of petitioner's failure to pursue this action in the months since the completion of his direct appeal, it appears that petitioner may have abandoned this matter.
Petitioner is therefore ORDERED to file, within 21 days, a statement of his intention to pursue this action. Petitioner's failure to do so will be construed as an abandonment of the action and will result in the dismissal of the action for failure to prosecute. If petitioner intends to pursue the matter, he must supplement his motion to vacate by providing the facts upon which he bases his claim of ineffective assistance of counsel. Moreover, petitioner must waive, in writing, the attorney client privilege as it relates to that claim. See In re Lott, 424 F.3d 446, 453 — 54 (6th Cir. 2005) (attorney client privilege is implicitly waived to the extent necessary to litigate a habeas petitioner's claim of ineffective assistance of counsel).
It is RECOMMENDED that the motion to dismiss, Doc. No. 55, be denied without prejudice to renewal, if otherwise appropriate, following petitioner's response, if any, to this Order.
If any party seeks review by the District Judge of this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties objections to the Report and Recommendation, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. § 636(b)(1); F.R. Civ. P. 72(b). Response to objections must be filed within fourteen (14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).