Robinson v. USA

Filing 2

ORDER TO SHOW CAUSE WHY § 2255 PETITION SHOULD NOT BE DISMISSED AS UNTIMELY; ORDER RE: DISCOVERY (Illston, Susan) (Filed on 7/23/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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United States District Court
For the Northern District of California

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No. CR 09-478 SI, CV 11-4874

Plaintiff,

ORDER TO SHOW CAUSE WHY § 2255
PETITION SHOULD NOT BE
DISMISSED AS UNTIMELY; ORDER
RE: DISCOVERY

v.

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MATTHEW ROBINSON,

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Defendant.

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On June 5, 2009, defendant Matthew Robinson pleaded guilty to six counts of bank robbery in

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violation of 18 U.S.C. § 2113(a). Dkt. 27. On June 4, 2010, the Court sentenced Robinson to 60 months

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of incarceration. Def.’s § 2255 Motion at 2, Dkt. 45. On June 15, 2010, judgment was entered. Gov.’t

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Mot. to Dismiss, Ex. A (Under Seal). On August 29, 2011, Robinson filed a motion attacking his

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sentence pursuant to 28 U.S.C. § 2255. Dkt. 45.

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On January 18, 2012, the government filed two motions: a Motion to Dismiss Defendant’s

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Motion Attacking His Sentence, and a Motion Permitting Discovery, Finding Limited Waiver of

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Attorney-Client Privilege, And Other Relief. Dkts. 54 and 55. On February 6, 2012, the Court granted

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the government’s request to extend its time to file an opposition to Robinson’s § 2255 motion until 30

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days after the Court disposed of the government’s Motion Permitting Discovery. Robinson has not

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responded to either motion.

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The government’s Motion to Dismiss argues that Robinson’s § 2255 motion is untimely. Section

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2255 provides for a one year period of limitation from the date on which the judgment of conviction

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becomes final. Id. When a movant does not seek a direct appeal, as is the case here, the conviction

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becomes final fourteen days after entry of the district court’s judgment. See Fed. R. App. P. 4(b);

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Rodriguez-Zamora v. U.S., 2012 WL 1978307 (E.D. Cal. Jun. 1, 2012) (citing United States v. Schwartz,

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274 F.3d 1220, 1223 (9th Cir. 2000)). In this case, Robinson’s conviction became final on June 29,

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2010, fourteen days after judgment was entered. Robinson did not file his § 2255 motion until August

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29, 2011, more than a year after his conviction became final.1 Therefore, the government argues, his

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motion is time-barred. As noted, Robinson has not opposed the government’s motion or otherwise

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argued why the statute of limitations should be equitably tolled. See United States v. Battles, 362 F.3d

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1195, 1996 (9th Cir. 2004) (discussing equitable tolling in the context of § 2255 motions).
The government’s second motion is in the alternative, and relates to its forthcoming opposition

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to Robinson’s § 2255 motion. It is a Motion to Permit Discovery, requesting that the Court enter an

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United States District Court
For the Northern District of California

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order finding a limited waiver of Robinson’s attorney-client privilege with his previous counsel. The

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government argues that because Robinson’s § 2255 motion is predicated on ineffective assistance of

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counsel, it will be necessary for the government to speak with Robinson’s previous attorney “to inquire

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of the subject matters raised by the defendant.” Gov’t Mot. Permitting Disc. at 2 (citing Bittaker

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v.Woodford, 331 F.3d 715, 718-19 (9th Cir. 2003).2 In Bittaker, the Ninth Circuit noted the long-

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standing rule that “where a habeas petitioner raises a claim of ineffective assistance of counsel, he

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waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer.” Id.

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at 716 (citing Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997). The court affirmed the entry

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by the district court of a protective order limiting use of the discovery resulting from the waived

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privilege to the habeas litigation. Id. at 727 (“[D]istrict courts have the obligation, whenever they permit

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discovery of attorney-client materials as relevant to the defense of ineffective assistance of counsel

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claims in habeas cases, to ensure that the party given such access does not disclose these materials,

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except to the extent necessary in the habeas proceeding . . .”). Upon motion by the government seeking

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As the government notes, even if the Court counts the statute of limitations period as
being tolled from the date Robinson signed his motion, that date is August 5, 2011 – still more than a
year after the judgment became final.
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Robinson’s § 2255 motion argues, inter alia, that he “was not made aware that [he] could
plea to part of a deal and take a different part to trial,” and that his counsel “wouldn’t fight for certain
things that I wanted. He also promised me that I would receive all my prior time served since June
2008, which I did not receive.” He also contends that he “wished to fight the amount of restitution
$39,314 but plea to the actual charge. My attorney would not fight the restitution.” Def.’s Mot. Attack
Sent. at 3-4.
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waiver of the privilege, the defendant may be given the opportunity to withdraw his claims of ineffective

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assistance of counsel. See United States v. Zamora, 2009 WL 1702733, *1 (E.D. Cal. Jun. 17, 2009).

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As with the Motion to Dismiss, Robinson has not responded to the government’s Motion to Permit

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Discovery.
Because the statute of limitations is a threshold consideration, the Court finds it unnecessary to

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rule on the government’s discovery motion until Robinson has responded to the motion to dismiss. As

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a matter of efficiency, Robinson may respond to both at the same time. The government’s motions were

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filed January 18, 2012; however, Robinson has not filed any oppositions with the Court nor contacted

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it in any other way. Robinson is hereby ORDERED TO SHOW CAUSE by August 27, 2012 why

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United States District Court
For the Northern District of California

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his § 2255 motion should not be dismissed as untimely. In particular, Robinson must show that he

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is entitled to some equitable tolling of the one year statute of limitations for § 2255 motions. See

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Battles, 362 F.3d at 1996. In his response, Robinson may also inform the Court whether he would like

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to withdraw his ineffective assistance of counsel claims in light of the government’s request for

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materials covered by the attorney-client privilege. If Robinson establishes a right to sufficient tolling

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such that his § 2255 motion is timely and does not withdraw his claims, the Court will grant discovery

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and issue a protective order allowing the government to seek the attorney-client privileged information,

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limiting its use to this habeas litigation only. Bittaker, 331 F.3d at 728.

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IT IS SO ORDERED.

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Dated: July 23, 2012
SUSAN ILLSTON
United States District Judge

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