Opinion
No. CIV S-06-1430 FCD GGH P.
August 3, 2007
ORDER
Petitioner, represented by counsel, has filed a petition pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's October 6, 2006, motion to dismiss the petition as barred by the one-year AEDPA statute of limitations. At the December 7, 2006, hearing on the motion, petitioner's counsel, who had not filed timely written opposition, was directed to file an opposition setting forth any factual basis for petitioner's possible entitlement to equitable tolling.
Upon this court's review of the post-hearing briefing, the court finds respondent raises a salient point in contending that petitioner should be required to lodge the letters which petitioner's counsel, C. Roman Rector, has declared that petitioner wrote in the period of time from February, 2004, until June, 2004, but which counsel does not submit on the basis that it contains privileged information.
C. Roman Rector identifies the letters sent by petitioner as dated February 29, 2004, April 6, 2004, April 8, 2004, May 9, 2004 and June 31, 2004 [sic]. Declaration of C. Roman Rector, managing partner of Rector and Tosney, LLP, currently representing petitioner, ¶ 8, filed in support of petitioner's response to respondent's motion, on December 15, 2006.
The court finds that, in placing at issue the facts underlying petitioner's claim of entitlement to equitable tolling, petitioner most likely has waived the privilege, insofar as the letters are urging attorney Dangler to take action. Counsel for petitioner must submit the letters from petitioner from February, 2004, through the end of June, 2004, that counsel (C. Roman Rector) states are in his possession, for in camera review by this court, forthwith, and, in any event, by no later than August 8, 2007. No letters will be published, filed or served without further input from counsel. There will be no extension of time for submitting the letters to the Chambers of the undersigned.
If petitioner is discussing a substantive legal issue, either factually or legally, that part of the letter likely remains privileged.
The court will accept the letters sent by overnight mail directly to Chambers in lieu of submission to chambers in person.
IT IS SO ORDERED.