Ogunbanke v. Nielsen et al

Filing 23

ORDER DENYING Petitioner's 8 Motion to Appoint Counsel Without Prejudice; ORDER REQUIRING Supplemental Submission From the Parties, signed by Magistrate Judge Jeremy D. Peterson on 12/20/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TAYO OLUGBOYEGA OGUNBANKE,
Petitioner,

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v.
KIRSTEN NIELSEN, et al.,

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Respondent.

Case No. 1:18-cv-00796-LJO-JDP
ORDER DENYING PETITIONER’S
MOTION FOR APPOINTMENT OF
COUNSEL WITHOUT PREJUDICE
ECF No. 8
ORDER REQUIRING SUPPLEMENTAL
SUBMISSION FROM THE PARTIES

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Petitioner Tayo Olugboyega Ogunbanke, a detainee in custody of the United States

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Bureau of Immigration and Customs Enforcement, proceeds without counsel seeking a petition

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for a writ of habeas corpus under 28 U.S.C. § 2241.

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The court will deny petitioner’s motion for appointment of counsel without prejudice. A

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habeas petitioner has no absolute right to counsel, but a district court may appoint counsel if

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(1) the petitioner is “financially eligible” and (2) “the interests of justice so require.” 18 U.S.C.

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3006A(a)(2)(B). Here, petitioner has not satisfied the first requirement. If petitioner decides to

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renew his motion for appointment of counsel, petitioner must present evidence of his financial

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circumstances.

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The court will also require the parties to supplemental submissions. Respondents contend

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that this case is moot because petitioner is now eligible to be released on bond. See ECF No. 20.

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An immigration judge has found that a bond for the amount of $250,000 is justified given
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petitioner’s multiple convictions of fraud involving a significant monetary amount. See ECF

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No. 2-1 at 8. If petitioner cannot afford the bond amount and the immigration judge’s ruling had

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the practical effect of ensuring petitioner’s continued custody, such ruling would be unreasonable.

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See Mau v. Chertoff, 562 F. Supp. 2d 1107, 1118 (S.D. Cal. 2008). Thus, the court will require

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petitioner to submit evidence of his financial circumstances. Petitioner may rely on his own

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declaration or other forms of evidence. Respondents must file a supplemental submission

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explaining why the court should not direct the release of petitioner. See id. at 1119.

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Respondents’ supplemental submission must also address the arguments raised in petitioner’s

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traverse. See ECF No. 22. After reviewing the parties’ submissions, the court will decide

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whether to hold a hearing.

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Order
1. Petitioner Tayo Olugboyega Ogunbanke’s motion for appointment of counsel,
ECF No. 8, is denied without prejudice.

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2. Petitioner must file a response to this order within thirty days from the date of
service of this order.

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3. Respondents must file a supplemental submission in support of their answer within
forty-five days from the date of service of this order.

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IT IS SO ORDERED.

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Dated:

December 20, 2018
UNITED STATES MAGISTRATE JUDGE

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