Beyene v. Wolf
- Proceeding
- district
- Area
- civil
- Panel
- Cynthia Ann Bashant (author)
Analysis
The court reviewed a petition for a writ of habeas corpus filed by an Eritrean national seeking release from ICE custody under *Zadvydas v. Davis* and a motion for appointment of counsel. The court ordered the respondents to file an answer and the petitioner to file a reply to allow for further briefing on whether evidentiary issues exist.
| What the court decided | The model |
|---|---|
Order setting briefing schedule for the habeas petition and motion for appointment of counsel“Accordingly, the Court ORDERS Respondents to file an answer to Mr. Beyene’s Petition (ECF No. 1) and Motion for Appointment of Counsel (ECF No. 3) no later than October 14, 2020. Petitioner may file a reply no later than November 4, 2020.” | agree with court The court correctly identified that it needed further briefing to determine if evidentiary issues existed, which is a prerequisite for deciding the motion for appointment of counsel under the cited authorities. The scheduling of the answer and reply is a standard procedural mechanism to develop the record. |
The order itself: sound — The order is a procedural scheduling order that correctly applies the legal standards for appointing counsel in habeas cases. It identifies the need for further briefing to determine if evidentiary issues exist, which is a logical next step before ruling on the motion for appointment of counsel. The authorities cited are appropriate for the procedural posture.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SAMUEL BEYENE, Case No. 20-cv-01703-BAS-MSB 12 Petitioner, ORDER SETTING BRIEFING 13 v. SCHEDULE 14 CHAD F. WOLF, et al., 15 Respondents. 16 17 Mr. Beyene is a national of Eritrea who seeks release from the custody of United 18 States Immigration and Customs Enforcement (ICE) pending removal. He brought the 19 present action under 28 U.S. § 2241, arguing that he is eligible for release under Zadvydas 20 v. Davis, 533 U.S. 678 (2001), because he has been held in the custody of ICE for more 21 than fourteen months after his removal order and his removal is not reasonably foreseeable. 22 (ECF No. 1.) Mr. Beyene also moves for an appointment of counsel. (ECF No. 3.) 23 The Court may appoint counsel for financially eligible persons seeking habeas relief 24 if “the interests of justice so require.” 28 U.S.C. § 3006A(a)(2)(B). “In deciding whether 25 to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood 26 of success on the merits as well as the ability of the petitioner to articulate his claims pro 27 se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 28 1 || 952, 954 (9th Cir. 1983). Under the Rules Governing Section 2254 proceedings,! the court 2 appoint counsel “[i]f necessary for effective discovery” or “if an evidentiary hearing 3 |/1s warranted.” 28 U.S.C. § 2254 Rules 6(a), 8(c); Weygandt, 718 F.2d at 954. 4 The Court finds that further briefing is necessary to determine whether evidentiary 5 issues exist in this case. Accordingly, the Court ORDERS Respondents to file an answer 6 || to Mr. Beyene’s Petition (ECF No. 1) and Motion for Appointment of Counsel (ECF No. 3) 7 ||no later than October 14, 2020. Petitioner may file a reply no later than November 4, 8 ||2020. Further, the Court directs the Clerk of Court to serve a copy of this Order on the 9 || United States Attorney’s Office for the Southern District of California. 10 IT IS SO ORDERED. 12 || DATED: September 22, 2020 ( yi 4 (Hiphanr 6 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 || ———_ | The district court may apply the Rules Governing § 2254 Cases to habeas actions filed under 28 27 ||U.S.C. § 2241. 28 U.S.C. § 2254 Rule 1(b); Woodall v. Kolender, No. 07-CV-1583 H AJB, 2007 WL || 2406901, at *1 (S.D. Cal. Aug. 20, 2007) (“The Court . . . has discretion to apply the Rules Governing Section 2254 Cases to petitioner’s habeas corpus action filed pursuant to 28 U.S.C. § 2241.”). _9.