Opinion
CASE NO. 2:12-CV-575 CRIM. NO. 2:10-CR-337
08-29-2013
JIMMY LEE SCHUMACHER, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE SMITH
Magistrate Judge Abel
OPINION AND ORDER
Petitioner, a federal prisoner, has filed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on Respondent's August 17, 2013, request to hold proceedings in abeyance pending submission of Petitioner's written attorney-client waiver. For the reasons that follow, Respondent's motion, Doc. No. 30, is GRANTED. Proceedings shall be held in abeyance pending Petitioner's submission of a written attorney-client waiver as it pertains to the claims raised herein.
Petitioner shall submit a written waiver of his attorney-client waiver as it pertains to his § 2255 claims within fourteen (14) days. Failure to do so may result in dismissal of this action.
In this federal habeas corpus petition, Petitioner asserts he was denied effective assistance of counsel. Petitioner thereby has waived his attorney-client privilege as it relates to this claim. See In re Lott, 424 F.3d 446, 453 (6th Cir. 2005)(citing Johnson v. Alabama, 256 F.3d 1156, 1178 (11 Cir. 2001)("By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [the petitioner] put at issue - and thereby waived - any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices"(other citations omitted). "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 hits allegedly ineffective lawyer." Bittaker v. Woodford, 331 F.3d 715, 716 (9 Cir. 2003); see also United States v. Bilzerian, 926 F.2d 1285, 1292 (2 Cir. 1991)(attorney-client "privilege may implicitly be waived when defendant asserts a claim that in fairness requires examination of protected communications"); Tasby v. United States, 504 F.2d 332, 336 (8 Cir. 1975)("Surely a client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege.")
Respondent's request to hold this action in abeyance pending Petitioner's submission of a written attorney-client waiver as it pertains to his claim of ineffective assistance of counsel, Doc. No. 30, therefore is GRANTED. Proceedings shall be held in abeyance pending Petitioner's submission of a written attorney-client waiver.
Petitioner shall submit a written waiver of his attorney-client waiver as it pertains to his § 2255 claims within fourteen (14) days. Failure to do so may result in dismissal of this action.
IT IS SO ORDERED.
Mark R. Abel
United States Magistrate Judge