                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

____________________________
                               )
UNITED STATES OF AMERICA,      )
                               )
          v.                   )   Criminal Action No. 06-363-01
                               )   (RWR)
JOSEPH SOOMAI,                 )
                               )
          Defendant.           )
____________________________   )

                        MEMORANDUM ORDER

     The United States moved for an order finding that by

asserting claims of ineffective assistance of his counsel, David

Bos, Esq., in a motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct sentence by a person in federal custody,

defendant Joseph Soomai waived his attorney-client privilege

covering communications between him and Bos.   Soomai filed no

opposition to the motion, but the government’s motion nonetheless

was considered on the merits and was granted in September 2012.

     Soomai moves for reconsideration of the order granting the

government’s unopposed motion asserting that current defense

counsel inadvertently failed to file electronically Soomai’s

opposition to the government’s motion.   Soomai now submits that

opposition which asks that “the court not rule on the

government’s motion requesting the Court issue an order that

(1) finds that the defendant has waived the attorney-client

privilege with respect to the claims of ineffective assistance of

counsel raised in his 2255 motion; and (2) that authorizes
                                  -2-

disclosures by [Bos], pursuant to Rule 1.6(e)(3) of the D.C.

Rules of Professional Conduct.”    Mot. to Reconsider, Attach. 2 at

2.   Soomai’s opposition also asks that the government not be

allowed to speak with Bos without current defense counsel present

and that any documents Bos discloses be made available to both

sides.

      Under Federal Rule of Civil Procedure 54(b),1 an

interlocutory order, such as the order at issue, “may be revised

at any time before the entry of a judgment adjudicating all the

claims and all the parties’ rights and liabilities.”     Fed. R.

Civ. P. 54(b).   “Under Rule 54, a court may reconsider an

interlocutory decision ‘as justice requires.’”   U.S. ex rel.

Westrick v. Second Chance Body Armor, Inc., Civil Action No. 04-

280 (RWR), 2012 WL 4475651, at *7 (D.D.C. Sept. 30, 2012)

(quoting Capitol Sprinkler Inspection, Inc. v. Guest Servs.,

Inc., 630 F.3d 217, 227 (D.C. Cir. 2011)).    Justice may so

require where the court has “‘patently misunderstood the parties,

made a decision beyond the adversarial issues presented, [or]

made an error in failing to consider controlling decisions or


      1
       Because habeas corpus proceedings are civil and not
criminal proceedings, Fisher v. Baker, 203 U.S. 174, 181 (1906),
the Federal Rules of Civil Procedure apply “to the extent that
the practice in those proceedings is not specified in a federal
statute, the Rules Governing Section 2254 Cases, or the Rules
Governing Section 2255 Cases; and has previously conformed to the
practice in civil actions[,]” Fed. R. Civ. P. 81(a)(4); see also
Rule 12, Rules Governing § 2255 Cases in the United States
District Courts.
                                -3-

data, or [where] a controlling or significant change in the law

has occurred.’”   Arias v. DynCorp, 856 F. Supp. 2d 46, 52 (D.D.C.

2012) (quoting Negley v. FBI, 825 F. Supp. 2d 58, 60 (D.D.C.

2011)).   The burden is on the moving party to show that

reconsideration is appropriate and that harm or injustice would

result if reconsideration were denied.    Husayn v. Gates, 588 F.

Supp. 2d 7, 10 (D.D.C. 2008).   A court may deny a motion for

reconsideration when it raises “‘arguments for reconsideration

the court ha[s] . . . already rejected on the merits.’”

McLaughlin v. Holder, 864 F. Supp. 2d 134, 141 (D.D.C. 2012)

(quoting Capitol Sprinkler Inspection, 630 F.3d at 227).     Here,

Soomai does not allege that the court misunderstood the parties’

arguments, considered an issue not presented by the parties, or

failed to consider the relevant law and facts in the Memorandum

Order entered September 21, 2012.     Further, Soomai cites no

intervening change in controlling law, does not demonstrate that

reconsideration is necessary to avoid harm or injustice, and

asserts an ethics argument that has already been rejected on the

merits.   Thus, Soomai’s motion to reconsider the waiver finding

will be denied.   Moreover, Soomai’s request that the court not

rule on the government’s motion is moot since the government’s

motion has already been decided.

     Soomai’s opposition appears to ask to stay the

September 2012 Order to give current counsel additional time to
                                 -4-

assemble and review the entire record in part to assess the merit

of the ineffective assistance of counsel claim that Soomai lodged

while he was still pro se.   The request will be treated as one to

hold in abeyance Soomai’s ineffective assistance of argument

claim pending counsel's review, and will be granted.   To permit

the government to be able to respond to the entire § 2255 motion

at one time, the government’s obligation to respond to Soomai’s

§ 2255 motion will be stayed pending a decision by Soomai on

whether he will persist in his ineffectiveness of assistance

claim.

     Soomai’s opposition also requests that the government not be

allowed to speak to Bos without defense counsel present and that

“the disclosure of documents be handled pursuant to the discovery

rules, so that both sides are given access to any such material.”

Mot. to Reconsider, Attach. 2 at 2.    Soomai contends that these

procedures will “better protect all relevant interests, including

the ethical obligations of former counsel, the need for a movant

to protect his ongoing interests in the attorney-client

relationship, and the need for both parties to litigate the

claim[.]”   Id. at 3.   Soomai further contends that ex parte

interviews and disclosures do not allow “current counsel to hear

and, if necessary, object prior to disclosures of former counsel”

to guard against Bos disclosing information outside of the

limited implied waiver of attorney-client privilege.   Id.      Under
                                    -5-

Rule 6 of the Rules Governing Section 2255 Cases, “[a] judge may,

for good cause, authorize a party to conduct discovery under the

Federal Rules of Criminal Procedure or Civil Procedure, or in

accordance with the practices and principles of law.”         Rules

Governing Section 2255 Proceedings for the U.S. Dist. Cts., R.

6(a).    See, e.g., United States v. Stone, 824 F. Supp. 2d 176,

187 (D. Me. 2011) (ordering a formal deposition of a petitioner’s

former counsel with both current counsel present preceded by

disclosure of relevant documents).        Soomai has alleged good cause

for a protective order governing any communications and

disclosures between Bos and the government regarding Soomai’s

ineffective assistance of counsel claims, and the government has

not opposed Soomai’s requests.      Thus, protective measures will be

ordered.    Accordingly, it is hereby

        ORDERED that defendant Soomai’s motion [95] for

reconsideration be, and hereby is, DENIED.       It is further

        ORDERED that Soomai’s request to stay the September 2012

Order, treated as one to hold in abeyance Soomai’s ineffective

assistance of counsel claim pending counsel’s review, be, and

hereby is, GRANTED.    Current defense counsel must file a notice

by April 8, 2013 informing the court whether Soomai will proceed

with his ineffective assistance of counsel claim.       The

government’s obligation to respond to Soomai’s § 2255 motion is

stayed sine die.    It is further
                               -6-


     ORDERED that if Soomai chooses to proceed with his

ineffective assistance of counsel claim, the government shall be

permitted to speak with Bos only when current defense counsel is

present and any documents that Bos discloses shall be made

available to both sides.

     SIGNED this 7th day of March, 2013.



                                            /s/
                                     RICHARD W. ROBERTS
                                     United States District Judge
