Gray v. United States of America

Filing 6

ORDER by the Honorable Benjamin H. Settle extending deadline to respond to 1 Motion to Vacate/Set Aside/Correct Sentence (2255); and renoting 5 Emergency MOTION Regarding Waiver of Attorney-Client Privilege and Request for Extension of Time to 7/27/2018. Motion to vacate is renoted to 9/14/2018. (TG; cc mailed to petitioner)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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KIMBERLY BROOKE GRAY,
Petitioner,

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v.
UNITED STATES OF AMERICA,

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Respondent.

CASE NO. C18-5464 BHS
ORDER EXTENDING DEADLINE
TO RESPOND TO PETITIONER’S
28 U.S.C. § 2255 MOTION AND
RENOTING MOTION ON
ATTORNEY-CLIENT PRIVILEGE

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This matter comes before the Court on Respondent the United States of America’s

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emergency motion regarding waiver of attorney-client privilege and request for an

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extension of time to respond to Petitioner’s 28 U.S.C. § 2255 motion. Dkt. 5. The Court

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has considered the pleadings filed in support of the motion and the remainder of the file

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and hereby (1) grants the request for an extension of the government’s deadline to

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respond and (2) renotes the government’s motion regarding the waiver of attorney-client

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privilege.

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It is well-established that a “defendant impliedly waives his attorney-client

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privilege the moment he files a habeas petition alleging ineffective assistance of

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counsel.” Lambright v. Ryan, 698 F.3d 808, 818 (9th Cir. 2012). Nonetheless, “such

ORDER - 1

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waiver is narrow and does not extend beyond the adjudication of the ineffectiveness

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claim in the federal habeas proceeding.” Id., 698 F.3d at 818. Accordingly, while the

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government is likely to succeed in its motion regarding the waiver of attorney-client

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privilege, it would be improper for the Court to consider such a motion on an emergency

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basis without affording Petitioner the opportunity to respond to the scope of the

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government’s requested discovery. The motion will be renoted and Petitioner will be

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given an opportunity to respond.

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It is apparent from the Government’s motion that an extension of the deadline for

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its response to Petitioner’s § 2255 motion is necessary. Petitioner’s former counsel, upon

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whose representation Petitioner’s § 2255 motion is predicated, has declined to speak with

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the government absent the entry of an order from the court regarding the waiver of

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attorney-client privilege and directing him to do so. As the deadline for a response has

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nearly arrived, the deadline must be extended if the government is to be afforded an

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adequate opportunity to respond with supporting discovery.

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Therefore, the government’s request for relief from a deadline is GRANTED. The

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government shall file its response to Petitioner’s 28 U.S.C. § 2255 motion no later than

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August 31, 2018. Any reply by Petitioner shall be filed and served on or before

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September 14, 2018. The Clerk shall RENOTE Petitioner’s 28 U.S.C. § 2255 motion

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(Dkt. 1) for consideration on September 14, 2018.

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The Court RESERVES RULING on the government’s motion regarding the
waiver of attorney-client privilege. Plaintiff may file a response to the motion no later

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ORDER - 2

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than July 25, 2018. The Clerk shall RENOTE the motion (Dkt. 5) for consideration on

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July 27, 2018.

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IT IS SO ORDERED.

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Dated this 12th day of July, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3