Boston v. United States of America

Filing 21

ORDER RE ATTORNEY PRIVILEGE WAIVER -- Petitioner asserts a claim of ineffective assistance of counsel in his petition to vacate his conviction pursuant to 28 U.S.C. § 2255. Petitioner is advised that by making claims of ineffective assistance of counsel, he implicitly waives his attorney-client privilege as to all communications with his allegedly ineffective appellate attorney, Michele Hauser. Aladino v. United States, 2011 WL 6131175, at *2 (E.D.N.Y. Dec. 8, 2011) (finding an impli ed waiver because privilege cannot be used as both a sword and shield, and noting that counsel's response should be limited to matters necessary to rebut the allegations). The Court requests that Petitioner confirm his understanding of this waiv er, agree that the privilege as to communications with the above-named counsel is waived, and advise the Court as to whether he still wishes to proceed on his ineffective assistance of counsel claim by completing the ATTACHED WAIVER FORM and postmark ing it NO LATER THAN AUGUST 31, 2017. Once the Court is in receipt of Petitioner's waiver form, the Court will set an additional schedule for the submission of an affidavit from Petitioner's counsel, which does not have to be submitted e x parte, given the waiver of attorney-client privilege. The Clerk of the Court is directed to mail a copy of this Electronic Order and Attached Waiver Form to pro se Petitioner. SO ORDERED by Chief Judge Dora Lizette Irizarry on 07/31/2017. 31/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
[NAME], pro se,
Petitioner,
WAIVER
__-cv-____ (DLI)

-againstUNITED STATES OF AMERICA,
Respondent.
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I, _______________________________________, do hereby declare that:
I know and understand that by filing a claim of ineffective assistance of counsel, I
implicitly waive my attorney-client privilege with respect to my communications with my
allegedly

ineffective

attorney(s),

____________________________________________,

regarding my defense in the criminal matter that is the subject of my petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2255 filed on _____________________.
Even though I know that my ineffective assistance of counsel claims will result in a
waiver of the attorney-client privilege with respect to the above-named counsel, I still wish to
proceed with my claims of ineffective assistance of counsel, as set forth in my petition.
I declare (or certify, verify, or affirm) under penalty of perjury that the foregoing is true
and correct and that this Form was placed in the prison mailing system on ______________
(month, day, year). I further declare (or certify, verify, or affirm) under penalty of perjury that
no one has forced me or coerced me in any way to execute this waiver form.
Executed (signed) on ______________ (date)
________________________________
Signature

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