Abdusattorov v. Current or Acting Filed Office Director San Diego Field Office, United States Immigration and Customs Enforcement

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PARVEZ ABDUSATTOROV, Case No.: 24cv1601 BEN (KSC)

12 Petitioner, ORDER DENYING MOTION FOR 13 v. LEAVE TO PROCEED IN FORMA PAUPERIS [ECF No. 2], DENYING 14 CURRENT OR ACTING FIELD OFFICE MOTION TO APPOINT COUNSEL DIRECTOR, SAN DIEGO OFFICE, 15 WITHOUT PREJUDICE [ECF No. 3] UNITED STATES ICE, et al., AND DISMISSING CASE WITHOUT 16 Respondents. PREJUDICE 17 18 Petitioner, a detainee in the custody of the Department of Homeland Security, 19 Bureau of Immigration and Customs Enforcement, proceeding pro se, has filed a Petition 20 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) Petitioner has 21 also filed a motion for leave to proceed in forma pauperis and a motion to appoint counsel. 22 (ECF Nos. 2-3.) 23 For the reasons discussed below, the Court denies the motion for leave to proceed in 24 forma pauperis, denies the motion to appoint counsel without prejudice and dismisses the 25 case without prejudice for failure to satisfy the filing fee requirement. 26 /// 27 /// 28 /// 1 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 2 Petitioner has filed a motion for leave to proceed in forma pauperis. (ECF No. 2.) 3 The prison certificate and statement of recent account activity accompanying Petitioner’s 4 request to proceed in forma pauperis reflects a $230.09 balance in Petitioner’s detainee 5 trust account. (Id. at 4, 6.) The filing fee associated with this type of action is $5.00. See 6 U.S.C. § 1914(a). Because it appears Petitioner can pay the requisite filing fee, the Court 7 DENIES Petitioner’s request for leave to proceed in forma pauperis [ECF No. 2]. 8 Given Petitioner’s failure to satisfy the filing fee requirement by either qualifying to 9 proceed in forma pauperis or by paying the $5.00 filing fee, the Court cannot proceed and 10 must DISMISS the case without prejudice at this time. 11 REQUEST FOR APPOINTMENT OF COUNSEL 12 Petitioner has also filed a motion to appoint counsel to represent him in his federal 13 habeas corpus proceeding. (ECF No. 3.) While district courts are provided with statutory 14 authority to appoint counsel in a federal habeas case when a petitioner is financially eligible 15 and “the court determines that the interests of justice so require” pursuant to 18 U.S.C. 16 §3006A(a)(2)(b), the Ninth Circuit has held that “[i]ndigent state prisoners applying for 17 habeas corpus relief are not entitled to appointed counsel unless the circumstances of a 18 particular case indicate that appointed counsel is necessary to prevent due process 19 violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citations omitted). 20 Petitioner has failed to qualify to proceed in forma pauperis in the instant action. 21 Nor has Petitioner shown that the circumstances of this case are such that appointed counsel 22 is necessary or warranted at this time, particularly given the case is currently subject to 23 dismissal. As such, the Court DENIES the motion to appoint counsel without prejudice to 24 renewing this request at a later time. 25 CONCLUSION AND ORDER 26 For the reasons discussed above, the Court DENIES Petitioner’s motion for leave 27 to proceed in forma pauperis [ECF No. 2], DENIES Petitioner’s motion to appoint counsel 28 [ECF No. 3] without prejudice and DISMISSES the case without prejudice for failure to 1 satisfy the filing fee requirement. To have this case re-opened, Petitioner must submit, no 2 later than November 12, 2024, a copy of this Order with the $5.00 filing fee or with 3 adequate proof of his inability to pay the filing fee. 4 IT IS SO ORDERED. 5 Dated: _9/10/24 ______________________________ 6 Honorable Roger T. Benitez 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28