Morceli v. Kelly et al

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 4/5/2017 ORDERING petitioner's 2 motion to proceed IFP is GRANTED. Petitioner's 3 motion for appointment of counsel is GRANTED. The Federal Defender or her designee is APPOINTED t o represent petitioner. Petitioner's counsel shall, within 90 days, file and serve a first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent shall file a response within 60 days after service of petitioner& #039;s first amended petition. The Clerk shall serve a copy of this order on the: (1) the Federal Defender, Attention: Section 2241 Habeas Appointment; and (2) the Deputy United States Attorney who has appeared on behalf of respondents in this case. (cc: FD, Habeas Unit) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ABDELKADER MORCELI,

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Petitioner,

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v.

No. 2:17-cv-0568 AC P

ORDER

JOHN KELLY, et al.,
Respondents.

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Petitioner, who is currently incarcerated at the Yuba County Jail, has filed an application

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for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner has also filed a request to

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proceed in forma pauperis and a motion for appointment of counsel. The parties have consented

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to the jurisdiction of the undersigned United States Magistrate Judge for all purposes. See 28

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U.S.C. § 636(c); Local Rule 305(a). See ECF Nos. 6, 7.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, petitioner’s request for leave to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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The court initially finds that it appears to have personal jurisdiction over petitioner

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because the named respondents include petitioner’s custodian, Yuba County Sheriff Steven L.

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Durfor, and petitioner’s place of incarceration is located within this district. See Rumsfeld v.

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Padilla, 542 U.S. 426, 428 (2004) (“Whenever a § 2241 habeas petitioner seeks to challenge his
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present physical custody within the United States, he should name his warden as respondent and

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file the petition in the district of confinement.”).

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Petitioner avers that he remains detained pursuant to a final order of deportation despite

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expiration of the 90-day mandatory removal period. Petitioner seeks to obtain supervised release

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in lieu of detention as a matter of due process and under the authority of 8 U.S.C. § 1231(a)(6)

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(authorizing supervised release for low risk aliens detained beyond the mandatory removal

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period). Because petitioner may be entitled to the requested relief, respondent will be directed to

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file an answer or motion to dismiss. However, because the court grants petitioner’s motion for

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appointment of counsel, the court will first accord appointed counsel the opportunity to file an

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amended petition.

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Petitioner requests appointment of counsel on the following grounds: (1) his petition

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presents complex legal issues, including “weighty constitutional principles” in a “rapidly

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changing area of the law,” see ECF No. 3 at 2-3; (2) effective discovery, if needed, will require

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the appointment of counsel, see Rule 6(a), Rules Governing Section 2254 Cases;1 (3) if an

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evidentiary hearing is required because the parties contest whether petitioner’s removal is likely

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in the foreseeable future, a factor in determining the legality of petitioner’s continued detention,

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appointment of counsel is required, see ECF No. 3 at 3; see also Rule 8(c), Rules Governing

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Section 2254 Cases; and (4) due to petitioner’s limited understanding of the federal judicial

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process and the restrictions on his ability to conduct discovery and legal research, appointment of

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counsel would serve the interests of judicial economy, see ECF No. 3 at 3-4.

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Although there is no absolute right to appointment of counsel in habeas proceedings, see

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Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996), appointment of counsel is warranted “if the

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interests of justice so require.” See 18 U.S.C. § 3006A(a)(2)(B). In the present case, the court

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finds that the interests of justice would be served by appointment of counsel at this time.

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The Rules Governing Section 2254 Cases may be applied to other types of habeas petitions.
See Rule 1(b), Rules Governing Section 2254 Cases.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request to proceed in forma pauperis, ECF No. 2, is granted.

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2. Petitioner’s motion for appointment of counsel, ECF No. 3, is granted.

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3. The Federal Defender or her designee is appointed to represent petitioner.

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4. Petitioner’s counsel shall, within ninety (90) days after the filing date of his order, file

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and serve a First Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
5. Respondent shall file an answer or motion to dismiss within sixty (60) days after

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service of petitioner’s First Amended Petition for Writ of Habeas Corpus. If an answer is filed,

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respondent shall include with the answer any and all transcripts or other documents relevant to the

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determination of the issues presented in the petition.

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6. Petitioner’s traverse, if any, shall be filed and served within thirty (30) days after

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service of respondent’s answer; an opposition to a motion to dismiss is due within thirty (30) days

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after service of a motion to dismiss.

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7. The Clerk of the Court is directed to serve a copy of this order on: (1) the Federal

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Defender, Attention: Section 2241 Habeas Appointment; and (2) the Deputy United States

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Attorney who has appeared on behalf of respondents in this case.

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IT IS SO ORDERED.
DATED: April 5, 2017

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