Jorgensen v. Astrue

Filing 21

ERRONEOUSLY FILED DOCUMENT Document erroneously filed in this case - please ignore. (Filed on 2/17/2015) Modified on 2/17/2015 (mmclc2, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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ORDER AFFORDING GOVERNMENT
LEAVE TO FILE MOTION FOR WAIVER
OF ATTORNEY-CLIENT PRIVILEGE

Plaintiff,

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No. 11-CR-331 MMC

UNITED STATES OF AMERICA,

v.
PETE AGAPITO CHAVEZ,
Defendant.

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Before the court is defendant Pete Agapito Chavez’s (“Chavez”) “Application

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Seeking Habeas Relief Pursuant to 28 U.S.C. § 2255,” (hereinafter “Motion”), filed May 8,

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2013, by which Chavez raises four claims. By order filed May 24, 2013 (see Doc. No. 69),

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the Court dismissed the first three claims and directed the government to file a response to

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the fourth, a claim alleging ineffective assistance of counsel. The government

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subsequently filed its opposition, to which Chavez replied. Thereafter, by order filed

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October 15, 2014 (see Doc. No. 87), the Court afforded Chavez leave to file a declaration,

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signed under penalty of perjury, setting forth in detail the facts on which he bases his

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motion, after which Chavez, on November 5, 2014, filed a declaration and the government,

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on January 29, 2015, responded.

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In its January 29, 2015 response, the government states it has been unable to
obtain declarations from the two attorneys who Chavez asserts provided ineffective
assistance, Steven Kalar (“Kalar”) and Martin Sabelli (“Sabelli”), because, according to the

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government, neither attorney would give a declaration absent a court order finding the

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attorney-client privilege has been waived as to Chavez’s ineffective assistance claim.

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Although the government, pointing to evidence it did submit with its January 29, 2015

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response, also argues the record is sufficiently developed without additional

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supplementation, such evidence does not address all of the issues raised in support of

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Chavez’s claim. In particular, the evidence submitted does not address Chavez’s

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allegation that Kalar failed to obtain a critical videotape1 and his allegation that Sabelli, after

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having been requested to do so, failed to file a notice of appeal.

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Accordingly, the Court will afford the government leave to file, no later than March

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20, 2015, a motion for a finding of a limited waiver of the attorney-client privilege. In the

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absence of such filing, the Court will proceed to appoint counsel for Chavez and set a

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status conference in order to discuss the scheduling of an evidentiary hearing.

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IT IS SO ORDERED.

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Dated: February 17, 2015
MAXINE M. CHESNEY
United States District Judge

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The Court notes that Chavez’s November 5, 2014 declaration states generally that
Kalar failed to “request[ ] a suppression hearing” (see Doc. No. 89 ¶ 5), whereas the
attestation under “penalty of perjury” contained in his motion (see Doc. No. 68), which
specifies the importance of the videotape to the subject search, is, as the government
points out, deficient for lack of a date of execution. Given the significance of the allegation,
however, the Court does not find it appropriate to deny the claim on the basis of such
procedural deficiency.
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