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14-3902 - Boston v. United States of America


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14-3902 - Boston v. United States of America
July 31, 2017
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ORDER RE ATTORNEY PRIVILEGE WAIVER -- Petitioner asserts a claim of ineffective assistance of counsel in his petition to vacate his conviction pursuant to 28 U.S.C. § 2255. Petitioner is advised that by making claims of ineffective assistance of counsel, he implicitly waives his attorney-client privilege as to all communications with his allegedly ineffective appellate attorney, Michele Hauser. Aladino v. United States, 2011 WL 6131175, at *2 (E.D.N.Y. Dec. 8, 2011) (finding an implied waiver because privilege cannot be used as both a sword and shield, and noting that counsel's response should be limited to matters necessary to rebut the allegations). The Court requests that Petitioner confirm his understanding of this waiver, agree that the privilege as to communications with the above-named counsel is waived, and advise the Court as to whether he still wishes to proceed on his ineffective assistance of counsel claim by completing the ATTACHED WAIVER FORM and postmarking it NO LATER THAN AUGUST 31, 2017. Once the Court is in receipt of Petitioner's waiver form, the Court will set an additional schedule for the submission of an affidavit from Petitioner's counsel, which does not have to be submitted ex parte, given the waiver of attorney-client privilege. The Clerk of the Court is directed to mail a copy of this Electronic Order and Attached Waiver Form to pro se Petitioner. SO ORDERED by Chief Judge Dora Lizette Irizarry on 07/31/2017. 31/2017. (Irizarry, Dora)
March 30, 2018
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ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND OPINION, Petitioner's motion made pursuant to 28 U.S.C. § 2255 is denied in its entirety. Petitioner was not denied effective assistance of appellate counsel, his sentence is substantively and procedurally reasonable, as the Second Circuit held in affirming his conviction, and Johnson does not apply to his case. In addition, Petitioner's request for an evidentiary hearing is denied as unnecessary. Petitioner is further denied a certificate of appealability, as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail to pro se Petitioner a copy of this Electronic Order and the Attached Written Memorandum and Order and to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 3/30/2018. (Irizarry, Dora)