Donald D. Breier, Petitioner-appellant, v. United States of America, Respondent-appellee, 947 F.2d 949 (9th Cir. 1991)

MEMORANDUM^** 

Donald Breier appeals pro se from the district court's denial of relief and dismissal of his amended motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. § 2255. We affirm.

Breier's first contention is that, pursuant to Gomez v. United States, 490 U.S. 858 (1989), he was entitled to have an Article III judge rather than a magistrate¹  preside over his jury selection. This argument fails. See United States v. Judge, Nos. 89-16167, etc., slip op. at 12556-57 (9th Cir. Sept. 10, 1991) (Gomez not retroactively applicable to final convictions pending on collateral review).

With respect to Breier's second claim of error, we note that a section 2255 petitioner who asserts ineffectiveness of counsel as a ground for relief from his conviction may thereby place into issue his communications with trial counsel. Under such circumstances, a petitioner cannot assert such a claim without thereby waiving, at least to a limited extent, his attorney-client privilege. Cf. United States v. Mendelsohn, 896 F.2d 1183, 1188-89 (9th Cir. 1990) (limited waiver of attorney-client privilege where defendant told detective that defendant's actions were result of bad legal advice). Because Breier's refusal to waive his attorney-client privilege while simultaneously attempting to assert that his attorney was ineffective resulted in Breier's obstruction of court-ordered discovery, we find no error in the district court's decision to strike that portion of Breier's amended petition.

The decision of the district court is AFFIRMED. All pending motions are DENIED as moot.