Lawrence S. Bittaker v. Jeanne S. Woodford, Warden, California State Prison of San Quentin

Opinion by Judge KOZINSKI; Concurrence by Judge O’SCANNLAIN.

OPINION

Lawrence Bittaker was convicted in California state court of multiple murders and was sentenced to death. After unsuccessfully exhausting his state remedies, In re Bittaker, No. S052371, 2000 Cal. LEXIS 9066 (Cal. Nov. 29, 2000); In re Bittaker, No. S058797, 2000 Cal. LEXIS 9067 (Cal. Nov. 29, 2000), Bittaker filed a federal habeas petition pursuant to 28 U.S.C. § 2254 raising a multitude of claims, including a variety of ineffective assistance of counsel claims.

It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer. See, e.g., Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir.1997); Tasby v. United States, 504 F.2d 332, 336 (8th Cir.1974); Laughner v. United States, 373 F.2d 326, 327 (5th Cir.1967). The question present *717 ed to us is the scope of the habeas petitioner’s waiver: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and all purposes—including the…

with whom Circuit Judge RAWLINSON joins, concurring in the judgment:

I concur in the result reached today by the court, that the protective order issued by the district judge was not an abuse of his discretion. Nevertheless, I cannot interpret Judge Byrne’s order as broadly as the majority. Nor am I convinced that the state attorney-client privilege must remain intact. As I see it, while a federal court has ample discretion to proscribe improper use of discovery materials obtained through its proceedings, it has no authority to determine admissibility for such underlying information under state law. Indeed, nothing in Judge Byrne’s order purports to make such a sweeping command.

I

Lawrence Bittaker is challenging his state conviction for multiple murders in this federal habeas corpus proceeding. He claims that he was deprived of effective assistance of counsel during his state court trial, and is thus being unconstitutionally detained. As the majority notes, it is axiomatic that when a client places the performance of his lawyer at issue, the client waives his or her right to assert the attorney-client privilege. Supra, at 718-719 (citing, among others, Hunt v. Blackburn, 128…

331 F.3d 715 Lawrence S. BITTAKER, Petitioner-Appellee, v. Jeanne S. WOODFORD, Warden, California State Prison of San Quentin, Respondent-Appellant. No. 02-99000. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 27, 2003. Filed June 6, 2003. A. Scott Hayward, Deputy Attorney General, Los Angeles, CA, argued for the respondent-appellant. Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Donald E. De Nicola, Supervising Deputy Attorney General, and Keith H. Borjon, Supervising Deputy Attorney General, joined him on the briefs. C. Renée Manes, Deputy Federal Public Defender, Los Angeles, CA, argued for the petitioner-appellee. Maria E. Stratton, Federal Public Defender, and Margo Rocconi, Deputy Federal Public Defender, joined her on the brief. Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Jr., Senior Judge, Presiding. D.C. No. CV-91-01643-WMB. Before SCHROEDER, Chief Judge, PREGERSON, KOZINSKI, O'SCANNLAIN, T.G. NELSON, HAWKINS, TASHIMA, FISHER, PAEZ, BERZON and RAWLINSON,…