United States v. Stephen Yagman

MEMORANDUM

Petitioner Stephen Yagman appeals three district court orders relating to discovery of attorney-client-privileged materi- ais during litigation of his ineffective assistance of counsel claim. We dismiss his interlocutory appeal for lack of jurisdiction and deny his alternative motion for a writ of mandamus.

I

Yagman argues that this court has jurisdiction to entertain his interlocutory appeal under Bittaker v. Woodford, 331 F.3d 715 (9th Cir.2003) (en banc) and Perlman v. United States, 247 U.S. 7 , 38 S.Ct. 417 , 62 L.Ed. 950 (1918). We disagree. Whether or not our circuit’s decision in Bittaker remains good law after the Supreme Court’s decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 , 130 S.Ct. 599 , 175 L.Ed.2d 458 (2009), its jurisdictional rule is not applicable in this case. In Bittaker , the Government appealed in order to gain the right to use the petitioner’s privileged information at a retrial if the petitioner’s writ of habeas corpus were to be granted. See Bittaker, 331 F.3d at 717 . Here, in contrast, the Government accepts the protective order preventing the use of privileged information in any subsequent retrial, and Yagman appeals to…