Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant seeks post-conviction relief on the basis that his trial counsel rendered ineffective assistance. Before the court is respondent's motion seeking leave to conduct discovery, for an order declaring a waiver of attorney-client privilege, and for an extension of time to file an answer to the motion.
On November 20, 2002, movant and two co-defendants were charged in an indictment with conspiring to manufacture at least 1,000 marijuana plants, manufacturing at least 1,000 marijuana plants, and possessing a firearm in furtherance of drug trafficking crimes. Following a jury trial, movant was convicted on all counts and sentenced to a total of 181 months imprisonment, a five-year supervised release term on each count to run concurrently, and $300 in special penalty assessments.
Movant filed an appeal of his judgment of conviction on June 9, 2004. Therein, he argued that his conviction should be reversed because of jury misconduct. He also argued that his sentence was improperly imposed. The parties subsequently filed a joint motion for remand in light of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). That motion was granted, and the matter was remanded for sentencing proceedings consistent with the decision in United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005). On March 20, 2006, the assigned district judge ruled that his previously issued judgment would remain in effect. On May 2, 2007, the Ninth Circuit filed a memorandum decision affirming the district court's judgment and sentence.
On July 30, 2008, movant filed the instant § 2255 motion, alleging that his trial counsel rendered ineffective assistance. By order dated September 8, 2008, respondent was directed to file an answer to the § 2255 motion within thirty days. On October 8, 2008, respondent filed a motion for: (1) leave to take discovery in the form of a deposition of movant's trial counsel and the issuance of a subpoena for any documents related to the issues raised in the § 2255 motion; (2) an order declaring that movant had waived the attorney-client privilege with respect to all issues implicated in his claim of ineffective assistance of counsel; and (3) a ninetyday extension of time to file a response to the § 2255 motion to allow completion of discovery and/or receipt of all deposition transcripts. In that motion, respondent's counsel represented that movant's trial counsel had responded to an inquiry by indicating that he had information and documents relevant to movant's allegations contained in the pending § 2255 motion but would only provide them upon the issuance of a court order declaring a waiver of attorney-client privilege and directing him to provide the information and documents.
On October 24, 2008, this court issued an order which granted respondent's motion for a ninety-day extension of time to respond to the § 2255 motion. The court further ordered movant to respond to respondent's requests for discovery and for a court order waiving the attorney-client privilege within twenty-one days. The court noted that any deposition of movant's trial attorney would appear to require special arrangements because movant is proceeding with the § 2255 motion in pro per and is currently in prison. Specifically, the court suggested that movant would be unable to attend the deposition unless it was conducted at his place of confinement. Although movant received a copy of the court's October 24, 2008 order, he did not file a response to respondent's motion for discovery and for a court order waiving the attorney-client privilege. He did, however, file letters with the court on February 25, 2009, and April 2, 2009, asking whether respondent had filed an opposition to his § 2255 motion.
On April 6, 2009, respondent filed a second motion requesting discovery and a forty-five day extension of time to file a response to the § 2255 motion in order to allow completion of discovery. Respondent explained that he had been waiting for a resolution of his discovery request before filing a response to the § 2255 motion, and that he failed to notice or to notify the court that movant had not responded to his request for discovery. Respondent sought relief from its "inadvertent error" in this regard, and requested an additional "forty-five day extension of time from the time that the Court issues a ruling on the instant motion to respond to Garcia's § 2255 petition, and a ruling on its previous motion so that it can obtain from [movant's trial counsel] the discovery that it needs to prepare and file its response to Garcia's petition." (April 6, 2009 motion, at 5.) Respondent's counsel stated that he had communicated with movant's trial counsel and believed he could obtain the information he sought in discovery through documentary evidence and a declaration signed by trial counsel, thereby obviating the need for a deposition. (Id. at 6-7.)
On May 1, 2009, movant filed a document entitled "Motion for a Finding of Waiver by the Government of its Right to Contest Petitioner's § 2255." Movant argues that because of respondent's "dilatory conduct," this court should "simply... resolve petitioner's claims raised in his habeas petition without need [for] any response from the Government."
(May 1, 2009 motion, at 2.) Movant also argues that, in light of respondent's failure to file a timely opposition, the court should "accept petitioner's allegations in his § 2255 petition as true for purposes of deciding whether to grant an evidentiary hearing." (Id.) Movant contends that this court cannot resolve "material factual issues which turn upon a credibility determination of the witnesses... by simply choosing between affidavits without an evidentiary hearing."
(P. & A. attached to May 1, 2009 motion, at 3 & n.3.)
On May 18, 2009, respondent filed a "Memorandum in Response" to movant's May 1, 2009 motion for a finding of waiver. Therein, respondent argues that only by receiving the relief that the United States requests, namely, information, documents, and sworn written statements from [movant's trial counsel], can the United States properly respond to Garcia's § 2255 petition.
Alternatively, the United States respectfully requests that the Court order that Garcia has waived the attorney-client privilege and allow the prosecutor to examine at an evidentiary hearing [movant's trial counsel] on the matters on which Garcia claims that his attorney was ineffective. In addition, the United States seeks leave of Court to file its response to Garcia's petition thirty days after the Court conducts such an evidentiary hearing so that the United States can properly respond to Garcia's allegations.
(May 18, 2009 Mem. at 2-3.) Respondent argues that it would be "unfair to bar the United States from responding to Garcia's petition when the United States has never received a final ruling on its motions." (Id. at 10.)
On July 8, 2009, movant filed a "Traverse" to respondent's May 18, 2009 "Memorandum in Response." In that document, movant claims that he did not receive a copy of respondent's motion for discovery and was therefore unable to file a reply. (Traverse at 2.) He also argues that respondent has "forfeited" the right to oppose the § 2255 motion because of his failure to address the merits of the motion. (Id.) Movant argues that respondent's actions have violated his right to due process and have resulted in an unconscionable delay in obtaining a resolution of the § 2255 motion. (Id. at 3.) Movant requests that this court consider his § 2255 motion "without reference to the ...