Seifer v. United States of America

Filing 5

ORDER signed by Judge J.P. Stadtmueller on 12/14/2016 GRANTING 4 Respondent's Motion to Compel. Petitioner to procure affidavit testimony of Louis Sirkin by 1/10/2017 in accordance with the terms of this Order; failure to do so will result i n dismissal of petition without further notice. 3 Briefing schedule MODIFIED as follows: Respondent's Answer now due 2/1/2017; if Respondent answers, Petitioner's Reply due 3/1/2017; if Respondent files motion, Petitioner's Response due 3/1/2017; Respondent's Reply in support of a motion due 3/15/2017. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CHRISTOPHER A. SEIFER,
Petitioner,
v.

Case No. 16-CV-1465-JPS

UNITED STATES OF AMERICA,
Respondent.

ORDER

On December 9, 2016, the respondent filed a motion to compel the
petitioner’s former counsel, whom he his now claiming providing ineffective
assistance at trial, to provide affidavit testimony on the subject of the
petitioner’s habeas motion. (Docket #4). By raising claims of ineffective
assistance of counsel, the petitioner has waived the attorney-client privilege
as to the communications underlying those claims; his apparent refusal to
expressly waive the privilege is baseless. Jenkins v. U.S., No. 09-CV-713-JPS,
2010 WL 145850 *2 (E.D. Wis. Jan. 8, 2010) (“The generally accepted rule is
that a litigant that challenges the sufficiency of his attorney’s services
impliedly waives the attorney-client privilege as to matters relating to those
issues. Garcia v. Zenith Electronics Corp., 58 F.3d 1171, 1175 n. 1 (7th
Cir.1995)”).
The petitioner will be required to procure the affidavit testimony of
his former counsel, Louis Sirkin, as described in the respondent’s motion,
namely on the subjects of:
1) the details of any communications that Attorney
Sirkin had with petitioner regarding investigating the three
potential witnesses and mileage evidence at issue;

2) the details of any investigations that Attorney Sirkin
or petitioner performed or caused to be performed as to those
witnesses and mileage evidence and of any communications
between Attorney Sirkin and petitioner regarding those
investigations; and
3) the details of any strategic choices that Attorney
Sirkin regarding presenting testimony from any or all of the
three witnesses at issue and regarding presenting the type of
mileage-documentation evidence that petitioner raises in his
Section 2255 petition and of any communications that Attorney
Sirkin had with petitioner regarding any such strategic choices.
If such testimony is not procured by January 10, 2017, the petitioner’s habeas
motion will be summarily dismissed by the Court without further notice. The
previously stated briefing dates, see (Docket #3 at 3-4), are adjusted as
follows:
Respondent’s Answer due: February 1, 2017
If Respondent Answers, Petitioner’s Reply due: March 1, 2017
If Respondent Files Motion, Petitioner’s Response due: March 1, 2017
Respondent’s Reply in Support of a Motion due: March 15, 2017
Accordingly,
IT IS ORDERED that the respondent’s motion to compel (Docket #4)
be and the same is hereby GRANTED;
IT IS FURTHER ORDERED that the petitioner will procure the
affidavit testimony of Louis Sirkin in accordance with the terms of this Order
no later than January 10, 2017; and
IT IS FURTHER ORDERED that the briefing schedule (Docket #3 at
3-4) shall be modified as described in this Order. No further extensions will
be granted.

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Dated at Milwaukee, Wisconsin, this 14th day of December, 2016.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

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