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Silver Jose Galindo v. United States of America

November 15, 2011

SILVER JOSE GALINDO,
PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: David Alan Ezra United States District Judge

ORDER: (1) GRANTING THE GOVERNMENT'S REQUEST FOR ORDER FINDING ATTORNEY-CLIENT PRIVILEGE WAIVER AS TO FORMER ATTORNEY JACK SCHWEIGERT; AND (2) GRANTING IN PART THE GOVERNMENT'S REQUEST FOR ADDITIONAL TIME TO RESPOND TO PETITIONER'S MOTION UNDER 28 U.S.C. 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for disposition without a hearing. After reviewing the motions and supporting memoranda, the Court: (1) GRANTS the Government's Request for Order Finding Attorney/Client Privilege Waiver as to Former Attorney Jack Schweigert (Doc. # 326); and (2) GRANTS IN PART the Government's Request for Additional Time Within Which to Respond to Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct (Doc. # 333).

BACKGROUND

On April 21, 2008, a jury found Petitioner Silver Jose Galindo ("Petitioner") guilty of four counts of Felon in Possession of a Firearm and/or Ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); two counts of Possession with Intent to Distribute 5 Grams or More of Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B); and two counts of Possession of a Firearm During and in Relation to a Drug Trafficking Offense in violation of 18 U.S.C. § 924(c)(1). (Doc. # 256, Doc. # 287.) On October 6, 2008, this Court sentenced Petitioner to a total of thirty-nine years and two months for those counts. Petitioner's conviction and sentence were affirmed by the U.S. Court of Appeals on February 25, 2010. (Doc. # 317.) The Supreme Court denied Petitioner's petition for a writ of certiorari on October 4, 2010. (Doc. # 321.)

On October 3, 2011, Petitioner filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Habeas Motion"). ("Habeas Mot.," Doc. # 322-1.) In his Memorandum of Law in Support of the Motion ("Memo," Doc. # 322-2), Petitioner asserts two grounds with respect to ineffective assistance of his counsel. Petitioner first claims that he was "denied his Sixth Amendment right to effective assistance of Counsel, during the pre-trial and trial stages of these proceedings; which prejudiced his defense." (Id. at 28.) Petitioner also claims that he was denied effective assistance of counsel on his direct appeal and his Petition for Writ of Certiorari proceedings in violation of the Sixth Amendment. (Id. at 56.)

In addition, Petitioner asserts, inter alia, that Dennis Tadio -- a witness in the case -- committed perjury at trial with regard to three counts. (Id. at 116.) Petitioner cites "NEWLY DISCOVERED EVIDENCE" provided by Douglas Thigpen, who was incarcerated at the same facility as Dennis Tadio. (Id. at 116--17.)

On October 3, 2011, Petitioner filed a Motion for Recusal of Judge David Alan Ezra ("Motion for Recusal"). (Doc. # 323.)

On October 5, 2011, the Court referred the Motion for Recusal to Chief Judge Mollway and ordered that in the interim the habeas proceeding be stayed. (Doc. # 324 at 2.) The Court also ordered that the Government file a memorandum in opposition to the petition for Habeas Corpus no later than forty-five (45) days after the filing of the Order. (Id.)

On October 6, 2011, Chief Judge Mollway assigned the Motion for Recusal to Judge Kobayashi. (Doc. 325.)

On October 7, 2011, the Government filed a Request for Order Finding Attorney-Client Privilege Waiver as to Former Attorney Jack Schweigert ("Waiver Request"). ("Waiver Request," Doc. # 326.) On October 18, 2011, the Court ordered that any opposition to the Government's request be filed by Petitioner by October 25, 2011. (Doc. # 329.) Petitioner did not file an Opposition to the Government's Request. On November 1, 2011, the Government filed a Statement of No Reply regarding its request. (Doc. # 331.)

On November 7, 2011, Petitioner filed a Motion to Withdraw Assigned Prosecutors and Reappoint New Prosecutors to Pending § 2255 Proceedings, and Abey Proceeding Pending Disposition of Motion to Recuse Judge From § 2255 Proceedings. (Doc. # 332.)

On November 9, 2011, the Government filed a Request for Additional Time Within Which to Respond to Petitioner's Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Request for Additional Time"). (Doc. # 333.)

On November 10, 2011, Judge Kobayashi issued an Electronic Order denying Petitioner's Motion ...


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