Severino-Zuniga v. Attorney General et al

Filing 6

ORDER granting 5 Petitioner's Motion to Appoint Counsel. Plaintiff's motion to appoint counsel is GRANTED. The Court APPOINTS the Federal Defenders of San Diego, Inc., to represent Petitioner. The Clerk of Court is ordered to adjust the Docket in this case to reflect the appointed counsel. Signed by Judge Anthony J. Battaglia on 7/6/2017. (acc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARMANDO SEVERINO-ZUNIGA, Case No.: 17-cv-0529-AJB-KSC Petitioner, 12 13 v. ORDER GRANTING PETITIONER’S MOTION TO APPOINT COUNSEL 14 ATTORNEY GENERAL, et al. (Doc. No. 5) 15 Respondent. 16 17 Presently before the Court is Petitioner Armando Severino-Zuniga’s (“Petitioner”) 18 motion to appoint counsel. (Doc. No. 5.) Federal Defenders of San Diego, Inc. have 19 requested to represent Petitioner. (Id. at 16–20.) For the reasons explained more fully 20 below, the Court GRANTS Petitioner’s motion. 21 BACKGROUND 22 Petitioner is currently detained at the Otay Mesa Detention Center. (Doc. No. 1 at 23 2.) On March 14, 2017, he filed his complaint asserting a cause of action under 28 U.S.C. 24 § 2241. (Id. at 1.) Petitioner alleges that he was detained by U.S. Immigration and Customs 25 Enforcement (“ICE”) on March 15, 2016. (Id. at 4.) Subsequently, on June 28, 2016, an 26 immigration judge ordered Petitioner removed to Canada. (Id.) Petitioner argues that ICE 27 did not act in good faith while implementing the deportation order as they supposedly tried 28 to remove him back to Argentina. (Id.) In sum, Petitioner’s habeas petition contends that 1 17-cv-0529-AJB-KSC 1 he has been denied the opportunity to demonstrate that he should not be detained. (Id. at 2 6.) Currently, Petitioner has submitted appeals regarding this matter to the Board of 3 Immigration Appeals and the United States Court of Appeals for the Ninth Circuit. (Id. at 4 4.) 5 After filing his complaint, Petitioner’s case was dismissed without prejudice on 6 March 23, 2017, for failure to pay the $5.00 filing fee. (Doc. No. 2.) On March 30, 2017, 7 Petitioner paid the filing fee. (Doc. No. 3.) On June 23, 2017, Petitioner filed the present 8 motion, his motion to appoint counsel. (Doc. No. 5.) 9 LEGAL STANDARD 10 Federal law permits a district court to appoint counsel in a habeas proceeding under 11 28 U.S.C. § 2241 when the “interests of justice so require,” and if a petitioner has shown 12 that he is unable to afford an attorney. 18 U.S.C. § 3006A(a)(2)(B). In deciding whether to 13 appoint counsel in a habeas proceeding, the district court must evaluate “the likelihood of 14 success on the merits as well as the ability of the petitioner to articulate his claims pro se 15 in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 952, 16 954 (9th Cir. 1983). “These considerations are not separate and distinct from the underlying 17 claim, but are inextricably enmeshed with them.” Id. 18 DISCUSSION 19 Petitioner’s motion to appoint counsel argues that as he has been detained for almost 20 a year, he does not have a source of income and thus cannot afford to retain counsel. (Doc. 21 No. 5 at 3.) Additionally, Petitioner contends that he is highly likely to succeed on the 22 merits of his claim as his detention “exceeds a period reasonably necessary to secure 23 removal.” (Id. at 4 (quoting Zadvydas v. Davis, 533 U.S. 678, 699 (2001))); see also Ma v. 24 Ashcroft, 257 F.3d 1095, 1102 n.5 (9th Cir. 2001) (declaring that “in Zadvydas, [] the 25 Supreme Court read the statute to permit a ‘presumptively reasonable’ detention period of 26 six months after a final order of removal – that is, three months after the statutory removal 27 period has ended”) (citations omitted). Furthermore, Petitioner argues that due to the 28 complex legal issues in the instant case in conjunction with his lack of legal training, this 2 17-cv-0529-AJB-KSC 1 complicated area of law warrants the appointment of counsel. (Doc. No. 5 at 7.) Finally, 2 Petitioner contends that appointment of counsel is necessary as there might be the potential 3 need for an evidentiary hearing. (Id. at 8–9.) 4 Having reviewed Plaintiff’s motion, the Court concludes that Petitioner is financially 5 eligible for appointment of counsel and has adequately demonstrated that he is likely to 6 succeed on the merits of his claim and that his 28 U.S.C. § 2241 habeas petition involves 7 complex legal issues. Accordingly, the Court GRANTS Petitioner’s motion for 8 appointment of counsel. 9 CONCLUSION 10 Based on the foregoing, Plaintiff’s motion to appoint counsel is GRANTED. The 11 Court APPOINTS the Federal Defenders of San Diego, Inc., to represent Petitioner. The 12 Clerk of Court is ordered to adjust the Docket in this case to reflect the appointed counsel. 13 14 IT IS SO ORDERED. 15 16 Dated: July 6, 2017 17 18 19 20 21 22 23 24 25 26 27 28 3 17-cv-0529-AJB-KSC

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