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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Rodrigo Contreras-Ramirez,

Defendant/Movant, 

v. 

United States of America, 

Plaintiff/Respondent.

No. CV-15-01692-PHX-GMS (BSB)

 CR-13-01001-PHX-GMS 

REPORT 

AND RECOMMENDATION 

 

 This matter is before the Court on the government’s motion to dismiss Movant’s 

claims of ineffective assistance of counsel. (Doc. 22.) As set forth below, the Court 

recommends that the motion be granted. 

 Movant brings this action pursuant to 28 U.S.C. § 2255. (Doc. 5.) Movant’s 

Amended Motion asserts multiple claims of ineffective assistance of counsel. (Id.) 

Therefore, on May 31, 2016, on the government’s motion, the Court ordered Movant to 

file a signed waiver of his attorney-client privilege related to his Amended Motion 

(waiver form attached as Exhibit A to the May 31, 2016 Order), or file a notice of 

withdrawal of his claims of ineffective assistance and his claim of actual innocence to the 

extent that claim is based on ineffective assistance of counsel. (Doc. 15.) The Court 

gave Movant fourteen days from the date of the May 31, 2016 Order to comply. (Id.) 

 Rather than complying with the May 31, 2016 Order, Movant appealed that order 

to the assigned district judge. (Doc. 17.) On June 28, 2016, the assigned district judge 

denied Movant’s appeal. (Doc. 18.) In view of that ruling, on June 29, 2016, the Court 

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extended the deadline for Movant to comply with the May 31, 2016 Order to fourteen 

days from the date of the June 29, 2016 Order. (Doc. 19.) The Court ordered that: 

in accordance with the Court’s May 31, 2016 and June 28, 2016 Orders (Docs. 15 and 18), within fourteen days of the date of [the June 29, 2016 Order] Movant must either (1) file 

a signed copy of the Waiver attached as Exhibit A to the May 31,2016 Order; or (2) file a notice of withdrawal of his claims 

of ineffective assistance of counsel and his claim of actual 

innocence to the extent that claim is based on the ineffective 

assistance of counsel. 

(Doc. 19 at 2.) 

 The Court warned Movant that failure to comply with its order may result in 

dismissal of Petitioner’s claims of ineffective assistance of counsel pursuant to Rule 

41(b) of the Federal Rules of Civil Procedure. (Doc. 19 at 2.) Despite the Court’s 

warning, Movant did not comply with the Court’s order. 

 On September 9, 2016, the government filed a motion to dismiss Movant’s claims 

of ineffective assistance of counsel based on Movant’s failure to comply with the Court’s 

orders. (Doc. 22.) Thereafter, on September 13, 2016, the Court ordered Movant to 

show cause on or before September 27, 2016, why it should not dismiss his claims of 

ineffective assistance of counsel for failure to comply with Court orders. (Doc. 23.) 

Movant has not responded to the September 13, 2016 Order and has not signed a waiver 

of his attorney-client privilege or filed a notice of withdrawal of his claims of ineffective 

assistance or his claim of actual innocence to that extent that claim is based on the 

ineffective assistance of counsel. (See Doc. 19 at 2.) 

 Based on Movant’s continued failure to comply with Court’s orders, the Court 

recommends that Movant’s claims of ineffective assistance of counsel and his claim of 

actual innocence that is based on the ineffective assistance of counsel be dismissed. As 

the Court noted in its May 31, 2016 Order, “a proper response to Movant’s claims 

requires evidence that is protected by the attorney client privilege. Thus, Respondent 

cannot properly respond to these claims if Movant asserts his attorney client privilege.” 

(Doc. 15 at 2.) Accordingly, Movant’s failure to execute the limited waiver of his 

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attorney-client privilege related to his claims of ineffective assistance of counsel raised in 

his Amended Motion impedes the government’s ability to respond to those claims. 

Additionally, Movant’s failure to execute the limited waiver or withdraw his claims of 

ineffective assistance of counsel violates the Courts orders. 

 Accordingly, 

IT IS RECOMMENDED that the Government’s Motion to Dismiss (Doc. 22) be 

GRANTED and that the Court dismiss Movant’s claims of ineffective assistance of 

counsel asserted in the Amended Motion. (Doc. 5 at 6; Doc. 5-1 at 2-6, 5-1 at 9-10, 13; 

See Doc. 6 at 2-3.) 

This recommendation is not an order that is immediately appealable to the Ninth 

Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal 

Rules of Appellate Procedure should not be filed until entry of the District Court’s 

judgment. The parties shall have fourteen days from the date of service of a copy of this 

recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to 

file a response to the objections. Failure to file timely objections to the Magistrate 

Judge’s Report and Recommendation may result in the acceptance of the Report and 

Recommendation by the District Court without further review. See United States v. 

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to 

any factual determinations of the Magistrate Judge may be considered a waiver of a 

party’s right to appellate review of the findings of fact in an order or judgment entered 

pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 

 Dated this 20th day of October, 2016. 

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