United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.
coram nobis matter is currently before the undersigned on
remand from the Ninth Circuit, for an evidentiary hearing on
petitioner's ineffective assistance of counsel claim. ECF
Nos. 157, 159. Petitioner contends that counsel failed to
competently advise him regarding the immigration consequences
of his plea. The United States seeks a ruling that petitioner
has waived the attorney-client privilege with respect to all
communications with his former attorney, Christopher
Haydn-Meyer, regarding his decision to plead guilty. ECF Nos.
170, 173. Petitioner contends that the waiver should be
limited to communications which took place on the day the
plea was entered, and should exclude communications regarding
the likelihood of prevailing at trial. ECF Nos. 172, 174. For
the reasons that follow, the government's motion is
of ineffective assistance of counsel waives attorney-client
privilege as to communications with the allegedly ineffective
lawyer, but the waiver applies only (1) to the extent
necessary to give respondent a fair opportunity to defend
against the particular claim, and (2) in the collateral
proceeding in which the claim is presented. Bittaker v.
Woodford, 331 F.3d 715, 717, 720, 722-23 (9th
Cir. 2003) (en banc). The court must tailor the scope of the
waiver to the universe of facts placed in issue by the claim.
See id. at 720.
petitioner alleges that Mr. Haydn-Meyer wrongly told him that
despite the representation in the plea agreement that he was
pleading to a “mandatory deportation” offense, he
would not actually be deported because of his asylum status.
Petitioner further alleges that if he had known that he would
lose his asylum status and become deportable, he would not
have pled guilty. To prevail, petitioner must prove both (1)
that counsel's representation fell below an objective
standard of reasonableness, and (2) that counsel's
deficient performance prejudiced the defense. Strickland
v. Washington, 466 U.S. 668, 692, 694 (1984). In the
context of a guilty plea, petitioner must show prejudice by
establishing “a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985). Accordingly,
petitioner's decision-making process regarding the plea
decision is central to his claim.
proposed temporal limitation on the scope of the waiver, and
accordingly on the evidence to be adduced at the hearing, is
without support in logic or authority. The entire course of
attorney-client communications regarding the plea offer and
petitioner's decision to plead guilty is potentially
relevant to both the performance and prejudice prongs of
Strickland. By presenting this claim, petitioner has
placed in issue all of counsel's advice regarding the
plea offer, including but not limited to advice regarding
immigration consequences, and petitioner's own
deliberative process regarding the plea. In order to defend
against the claim, respondent must have a fair opportunity to
inquire into all of counsel's advice regarding the plea
offer, and plaintiff's entire deliberative process
regarding the plea. The court must make findings regarding
the entire course of plea negotiations, the advice that Mr.
Haydn-Myer gave petitioner, the reasonableness of that advice
in light of the context of the case as a whole, and the
reasons for petitioner's acceptance of the plea offer.
See Padilla v. Kentucky, 559 U.S. 356 (2010);
Lee v. United States, 137 S.Ct. 1958 (2017);
United States v. Rodriguez-Vega, 797 F.3d 781
(9th Cir. 2015). Accordingly, the waiver cannot
fairly be limited to communications on the day of the plea.
further contends that the waiver of attorney-client privilege
should not extend to communications regarding the likelihood
of prevailing at trial. Petitioner argues that such a waiver
“would open up the entire scope of communications
including defense strategy and defendant's
statements.” ECF No. 172 at 3. It is true that
strategic considerations relevant to plea negotiations, and
to petitioner's decision to accept the offer, will
necessarily be revealed at an evidentiary hearing on
plaintiff's claim. That consequence is the direct result
of plaintiff's choice to pursue the claim. See
Bittaker, 331 F.3d at 716. To the extent that petitioner
made statements the existence of which were relevant to the
relative risks and benefits of accepting the deal or
proceeding to trial, petitioner's allegations have
similarly waived the privilege. Defense strategy and statements
unrelated to the evaluation of these options are outside the
scope of the Strickland claim, however, and the
privilege is not waived as to them.
likely outcome of a trial is one of many factors that a
defendant must consider when evaluating a plea offer, and
about which defense counsel must offer advice. Accordingly,
such discussions are directly relevant to the prejudice
inquiry. Petitioner relies on Lee, 137 S.Ct. 1958,
which rejected the theory that prejudice in this context
requires a showing that defendant would have been better off
going to trial. Lee did not, as petitioner suggests,
hold that the likelihood of conviction at trial is irrelevant
to prejudice. On the contrary, the Supreme Court specifically
held that a defendant's trial prospects must be
considered as part of the totality of the evidence regarding
the decision to accept a guilty plea. Id. at
1966-67. Under Lee, it is possible for an
ineffective assistance claim regarding a plea to succeed even
where the likely outcome of a favorable trial outcome is slim
to none. However, the necessary inquiry requires full
development of all the pertinent facts. Id.
(prejudice inquiry “demands a ‘case-by-case
examination' of the ‘totality of the
evidence.'” (quoting Williams v. Taylor,
529 U.S. 362, 291 (2000)). Lee thus supports the
government's position that the waiver of privilege
extends to attorney-client communications regarding likely
trial outcome. While not necessarily dispositive, such
communications are relevant to the prejudice prong of
these reasons, the United States' motion regarding waiver
of attorney-client privilege, ECF No. 170, is GRANTED as
specified above. The evidentiary hearing will be set by
 The evidentiary hearing will be
subject to a protective order limiting the government's
use of attorney-client communications to its defense of the
ineffective assistance claim in this collateral proceeding.
See Bittaker, 331 F.3d at 722-24. Otherwise
privileged material disclosed at the hearing may not be used
against petitioner at a retrial, if any. See id. If
petitioner wishes to avoid ...