Wright v. Mayorkas

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAWN D. OMAR WRIGHT, Case No.: 23-CV-511 JLS (BLM)

12 Petitioner, ORDER: (1) DENYING MOTION 13 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS; (2) DENYING 14 ALEJANDRO MAYORKAS, et al., WITHOUT PREJUDICE MOTION 15 Respondents. TO APPOINT COUNSEL; AND (3) DISMISSING CASE WITHOUT 16 PREJUDICE 17 (ECF Nos. 1–3) 18 19 Petitioner Shawn D. Omar Wright (“Petitioner”), a detainee in the custody of the 20 Department of Homeland Security, Bureau of Immigration and Customs Enforcement, 21 proceeding pro se, has filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 22 § 2241. See ECF No. 1 (“Pet.”). Petitioner has also filed a Motion for Leave to Proceed 23 in Forma Pauperis (“IFP”) (“IFP Mot.,” ECF No. 2) and a Motion to Appoint Counsel 24 (“Counsel Mot.,” ECF No. 3). 25 Having reviewed Petitioner’s filings and the applicable law and for the reasons 26 discussed below, the Court DENIES the IFP Motion, DENIES WITHOUT PREJUDICE 27 the Counsel Motion, and DISMISSES the case WITHOUT PREJUDICE for failure to 28 satisfy the filing fee requirement. 1 MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS 2 Petitioner has filed an IFP Motion. See IFP Mot. The Prison Certificate and 3 Statement of Recent Account Activity accompanying Petitioner’s IFP Motion reflects a 4 $5.04 balance in Petitioner’s detainee trust account as of March 3, 2023. See id. at 4, 7. 5 The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a). 6 Because it appears Petitioner can pay the requisite filing fee, the Court DENIES 7 Petitioner’s IFP Motion. 8 Given Petitioner’s failure to satisfy the filing fee requirement by either qualifying to 9 proceed IFP or paying the $5.00 filing fee, the Court cannot proceed and must DISMISS 10 the case WITHOUT PREJUDICE at this time. 11 REQUEST FOR APPOINTMENT OF COUNSEL 12 Petitioner has also filed a motion requesting appointment of counsel to represent him 13 in his federal habeas corpus proceeding. See Counsel Mot. While district courts are 14 provided with statutory authority, pursuant to 18 U.S.C. §3006A(a)(2)(B), to appoint 15 counsel in a federal habeas case when a petitioner is financially eligible and “the court 16 determines that the interests of justice so require,” the Ninth Circuit has held that 17 “[i]ndigent state prisoners applying for habeas corpus relief are not entitled to appointed 18 counsel unless the circumstances of a particular case indicate that appointed counsel is 19 necessary to prevent due process violations,” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 20 Cir. 1986) (citations omitted). 21 Petitioner asserts he “cannot afford an attorney,” Counsel Mot. at 1, but has failed 22 to qualify to proceed IFP in the instant action. Nor has Petitioner shown that the 23 circumstances of this case are such that appointed counsel is necessary or warranted at this 24 time, particularly given the case is currently subject to dismissal. As such, the Court 25 DENIES the Counsel Motion, WITHOUT PREJUDICE to renewing this request at a 26 later time. 27 / / / 28 / / / I CONCLUSION 2 For the reasons discussed above, the Court DENIES Petitioner’s Motion for Leave 3 ||to Proceed in Forma Pauperis (ECF No. 2), DENIES WITHOUT PREJUDICE 4 ||Petitioner’s Motion to Appoint Counsel (ECF No. 3), and DISMISSES the case 5 || WITHOUT PREJUDICE for failure to satisfy the filing fee requirement. To have this 6 || case reopened, Petitioner must submit, no later than May 29, 2023, a copy of this Order 7 || with either: (1) the $5.00 filing fee, or (2) adequate proof of his inability to pay the filing 8 || fee. 9 IT IS SO ORDERED. 10 || Dated: March 29, 2023 . tt 11 pon Janis L. Sammartino United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28