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Gonzalez-Leyton v. Chertoff

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 14, 2008

MANUEL GONZALEZ-LEYTON, PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, ET AL., RESPONDENTS.

The opinion of the court was delivered by: M. James Lorenz United States District Court Judge

ORDER DENYING PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL AND EXTENDING TIME TO FILE TRAVERSE

In this habeas corpus proceeding pursuant to 28 U.S.C. § 2241, Petitioner filed a renewed motion for appointment of counsel under 18 U.S.C. § 3006A, indicating that Federal Defenders of San Diego, Inc., who assisted him in the preparation of the habeas petition and motions for appointment of counsel, is willing to represent him as his appointed counsel.

Section 3006A(2)(b) provides that "[w]henever . . . the court determines that the interests of justice so require, representation may be provided for any financially eligible person who is seeking relief under section 2241 . . .." Appointment under section 3006A(2)(b) is discretionary, United States v. 30.64 Acres of Land, 795 F.2d 796, 799 n.5 (9th Cir. 1986), and can be ordered at any stage of the case if the interests of justice so require, Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). "In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt, 718 F.2d at 954.

Petitioner was ordered removed to Nicaragua on or about July 25, 2007. (Decl. of Manuel Gonzalez-Leyton ("Decl.") ¶ 6; Government's Return in Opp'n to Pet. for Writ of Habeas Corpus ("Opp'n"), Ex. G.) His appeal to the Board of Immigration Appeals was dismissed on or about November 27, 2007. (Decl. ¶ 6.) On December 19, 2007, Petitioner appealed the order of removal to the Ninth Circuit and requested a stay of removal. (Id. ¶ 7 & Ex. A; Opp'n Ex. L.) The Court granted his motion and set a briefing schedule ending on or about October 31, 2008. (Decl. Ex. A.) Petitioner has been in immigration detention since April 24, 2006, and seeks release from immigration custody pending his appeal to the Ninth Circuit.

Id. ¶ 2, 4.)

Petitioner's success on the merits is not assured. Although Petitioner has been in immigration custody now for over two years, it appears that a large portion of that time was due to his repeated requests for continuances in the proceedings prior to the current appeal. (Opp'n. at 1-2 & Ex. C, G, H, J.) Petitioner seeks to be released during the pendency of his appeal. (Pet. at 3.) So far, however, the appellate proceedings have not been delayed and have proceeded in due course.

Although Petitioner asserts that neither he nor his family have the funds to retain counsel (Decl. ¶ ¶ 8-12), he is represented by retained counsel on his appeal to the Ninth Circuit and was represented by other retained counsel in the immigration proceedings before the appeal (id. ¶¶ 6, 7). Petitioner has lived in the United States since he was three, graduated from high school in Los Angeles and speaks English fluently. (Id. ¶ 13.) The issues presented by the Petition are not appropriate for summary disposition without briefing, however, they are not particularly complex. Petitioner is therefore in no worse position to present his claims than many habeas petitioners who file their petitions in this court pro se.*fn1

In light of the foregoing, interests of justice to not require appointment of counsel at this time. Petitioner's motion for appointment of counsel is DENIED. If Petitioner wishes to reply to the Respondents' responsive memorandum, the time to file his traverse is extended until no later than August 5, 2008.

IT IS SO ORDERED.

HON. CATHY ANN BENCIVENGO UNITED STATES MAGISTRATE JUDGE


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