Hernandez v. Barr et al
MEMORANDUM ORDER: IT IS ORDERED that Hernandez's 1 Motion for Temporary Restraining Order be DENIED.IT IS FURTHER ORDERED that Hernandez's Motion to Appoint Counsel (Rec. Doc. 2 ) be DENIED. Signed by Magistrate Judge Carol B Whitehurst on 10/16/2020. (crt,Chicola, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
YUNIER NODA HERNANDEZ
CASE NO. 6:20-CV-01276 SEC P
JUDGE ROBERT R. SUMMERHAYS
WILLIAM BARR, ET AL
MAGISTRATE JUDGE WHITEHURST
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. §
2241 [Rec. Doc. 1] filed by pro se petitioner Yunier Noda Hernandez. Hernandez
included a request that he not be transferred out of the jurisdiction of the ICE New
Orleans Director during the pendency of this proceeding, which the Court construes
as a Motion for Temporary Restraining Order (“TRO”). Petitioner has also filed a
Motion to Appoint Counsel. [Rec. Doc. 2].
Temporary Restraining Order
Rule 65 of the Federal Rules of Civil Procedure provides, in pertinent part, as
(1) Issuing Without Notice. The court may issue a temporary restraining
order without written or oral notice to the adverse party or its attorney
(A) specific facts in an affidavit or a verified complaint clearly show
that immediate and irreparable injury, loss, or damage will result to the
movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts made to give
notice and the reasons why it should not be required.
Fed. R. Civ. P. 65
Hernandez does not allege that any immediate or irreparable injury, loss, or
damage would occur without the TRO.
Hernandez’s physical presence in this district is not required for the
adjudication of his Petition. His transfer out this district would not destroy the
Court’s jurisdiction over his habeas claim. Jurisdiction attaches upon filing a habeas
petition, and it is not destroyed upon the subsequent transfer or custodial change of
the petitioner. See McClure v. Hopper, 577 F.2d 938, 939-40 (5th Cir. 1978), cert.
denied, 439 U.S. 1077 (1979).
Additionally, § 2241 petitions regarding Zadvydas claims and the legality of
detention pending removal are regularly adjudicated on the briefs without the need
for in-person hearings, and because Hernandez is proceeding pro se, there is no issue
regarding his ability to meet with counsel.
Moreover, claims regarding prison transfers are generally not cognizable
under § 2241. See Greenhill v. Menifee, 202 F. App’x 799, 800 (5th Cir. 2006)
(claim not cognizable under § 2241 because prisoners lack a constitutionally
protected interest in where they are incarcerated); Zapata v. United States, 264 F.
App'x 242, 243-44 (3d Cir. 2008)(district court lacked jurisdiction over a § 2241
petition that challenged a transfer). There is no protected liberty interest in being
housed in a particular facility. Armendariz-Mata v. Lappin, 157 F. App’x 767 (5th
Cir. 2005) (citing Yates v. Stalder, 217 F.3d 332, 334 (5th Cir. 2000)). Because
Hernandez does not allege that he faces any immediate and irreparable injury, loss
or damage, and because he provides no legal justification to enjoin ICE from moving
him out of this district, Petitioner’s Motion for TRO to prohibit his transfer out of
the jurisdiction of the ICE New Orleans Director is denied.
It should be noted that in a separate order, service of process on the defendants
has been ordered. Thus, plaintiff’s claims will ultimately be addressed on the merits.
Motion to Appoint Counsel
Plaintiff has also filed a Motion to Appoint Counsel. [Rec. Doc. 2]. In
general, the Court has authority to appoint counsel to represent an indigent party in
any civil case pursuant to 28 U.S.C. § 1915(e)(1). That section provides: "The court
may request an attorney to represent any person unable to afford counsel." 28
U.S.C.A. § 1915(e)(1) (West Supp. 2000). However, appointed counsel in a civil
case is a privilege and not a constitutional right, allowed only in exceptional cases.
See Santana v. Chandler, 961 F.2d 514, 515-16 (5th Cir. 1992); Lopez v. Reyes, 692
F.2d 15, 17 (5th Cir. 1982). Thus, in determining whether to make such an
appointment, a court should look at the following factors, among others: (1) the type
and complexity of the case; (2) whether the petitioner is capable of adequately
representing his case; (3) whether the petitioner is in a position to investigate his
case adequately; and (4) whether the evidence will consist in large part of conflicting
testimony that would require skill in the presentation of evidence and in crossexamination. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Here, the Court does not find any exceptional circumstance to justify
appointing counsel for Petitioner. In this immigration case, though a somewhat
complex area of law, most questions the Court will resolve will be legal rather than
factual. Hence, there will be little need for Petitioner to investigate his case.
Moreover, at this time, the Court does not find the need for testimony in this case
and, consequently, no need for skillful cross-examination.
Although many persons in Petitioner's situation (i.e., detainees facing
removal) have a significant language barrier, Petitioner appears to write English
plainly and with sufficient aptitude for the Court to understand. More importantly, a
quick review of the papers Petitioner has filed in this case, without an attorney to
assist him, demonstrates that Petitioner has more than a rudimentary understanding
of the law and procedure. His filings are neatly typed, and his exhibits are plainly
labeled. Moreover, Petitioner cites statutes and case-law with more than a layperson's understanding. In short, the Court is quite confident that Petitioner will be
able to represent himself in this cause.
Should the matter proceed to a point where the Court finds that an exceptional
circumstance presents, it will revisit this issue.
Consequently, after due
consideration, the instant request for appointed counsel is denied.
IT IS ORDERED that Hernandez’s Motion for Temporary Restraining Order
IT IS FURTHER ORDERED that Hernandez’s Motion to Appoint Counsel
[Rec. Doc. 2] be DENIED.
THUS DONE in Chambers on this 16th day of October, 2020.
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