Mitchell v. United States of America

Filing 39

ORDER granting 29 Respondents Motion to Declare Attorney-Client Privilege Waived.Signed by Judge Mary H Murguia on 12/3/09.(KSP)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Lezmond Mitchell, Petitioner, vs. United States of America, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-09-8089-PCT-MHM DEATH PENALTY CASE ORDER RE: MOTION TO DECLARE ATTORNEY-CLIENT PRIVILEGE WAIVED Respondent has filed a motion requesting that the Court declare Petitioner's attorneyclient privilege waived. (Dkt. 29.) The motion asserts that Petitioner's trial counsel will not consent to an informal interview by Respondent for the purpose of investigating Petitioner's allegations of counsel ineffectiveness without a written waiver from Petitioner or order of the Court. (Id. at 2.) The motion further states that Petitioner will not provide a written waiver. (Id.) Courts have uniformly held that a claim alleging ineffective assistance of counsel waives the attorney-client privilege, at least within the scope of the issues raised by the claim. See In re Lott, 424 F.3d 446, 452-53 (6th Cir. 2005); Bittaker v. Woodford, 331 F.3d 715, 718-19 (9th Cir. 2003); Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001); United States v. Ballard, 779 F.2d 287, 292 (5th Cir. 1986). The inquiry required by Strickland v. Washington, 466 U.S. 668, 669 (1984), presupposes that the Government will be given a fair opportunity to defend against Petitioner's claims alleging ineffective assistance of counsel. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bittaker, 331 F.3d at 720. Therefore, if any of Petitioner's prior attorneys are unwilling to participate in informal interviews with the Government or the Government would prefer to depose these individuals, the Court finds good cause under Rule 6 of the Rules Governing Section 2255 Cases for such depositions. Based on the foregoing, IT IS ORDERED that Respondent's Motion to Declare Attorney-Client Privilege Waived (Dkt. 29) is GRANTED. DATED this 3rd day of December, 2009. -2-

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