Petitioner is in the custody of immigration officials and seeks an order for his release pursuant to 28 U.S.C. § 2241. He has filed a number of requests both before and after his July 20, 2009 petition. On May 1, 2009, he filed a request for leave to proceed in forma pauperis and "an emergency motion for appointment of counsel," which the clerk appears to have treated as the petition. His actual petition was not filed until July 20, 2009, and it appears that the Clerk has treated it as a motion for preliminary injunction, apparently because the petitioner wrote on the cover page of the petition "Preliminary Injunction Requested." The pleading, however, is a petition, not a motion for preliminary injunction and it does not request specific preliminary injunctive relief other than to reiterate the request to expedite the case.
On July 28, 2009, petitioner filed "emergency" motions to consolidate this case with case no. Civ. S-09-1923 GEB GGH P, and to expedite these proceedings. On August 25 and September 14, 2009, he filed an additional request to expedite issuing the Order to Show Cause on his petition. The court address herein each of these motions.
As a threshold matter, petitioner's request for leave to proceed in forma pauperis must be granted. His affidavit reveals that he is unable to afford the costs of suit. The statute provides that a judge "entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." 28 U.S.C. § 2243. It is not apparent from the face of the application that the petitioner is not entitled to relief. Accordingly, plaintiff is granted leave to proceed in forma pauperis.
Secondly, the court has reviewed the petition and hereby orders respondent to show cause for petitioner's detention. Accordingly, the several requests to expedite issuance of the order to show cause are now moot and they are denied accordingly.
Third, the petitioner's motion to consolidate has caused the court to examine the petition in this case together with the petition filed in case number Civ. S-09-1923 GEB GGH P. Examination of the two shows that the petition filed in case number 09-1923 is nearly identical to the one filed in this case. Therefore, the cases are related within the meaning of Local Rule 83-123(a) (E.D. Cal. 1997). Under the regular practice of this court, related cases are generally assigned to the judge and magistrate judge to whom the first filed action was assigned. Accordingly, the cases are reassigned at the conclusion of the order.
Given that the two petitions are nearly identical it is also apparent that the cases should be consolidated. Accordingly, the later filed case, Civ. S-09-1923, will be consolidate with this action, see Fed. R. Civ. P. 42(a), and the Clerk will be directed to administratively close that file and all pleadings shall be filed in this action.
Finally, the petitioner has requested appointment of counsel. There currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). The court may appointment counsel at any stage of the proceedings "if the interests of justice so require." See 18 U.S.C. § 3006A; see also, Rule 8(c), Rules Governing Section 2254 Cases. The court will defer the question of counsel until after receiving the response to the petition, which raises a number of complex issues. Accordingly, the request for appointment of counsel is denied without prejudice but the court intends to revisit the question upon the filing of a responsive pleading.
As noted, the clerk mistook the July petition as a motion for preliminary injunction. There is no pending motion that requests an order for specific preliminary injunctive relief.
Accordingly, it is hereby ordered that:
1. Petitioner's request for leave to proceed in forma pauperis is granted.
2. Respondent shall file and serve either an answer or a motion in response to petitioner's application within 45 days from the date of this order. Any response shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application.
3. Petitioner's reply, if any, shall be filed and served within 30 days of service of an answer.
4. If the response to petitioner's application is a motion, petitioner's opposition or statement of non-opposition shall be filed and served within 30 days of service of the motion, and respondents' reply, if any, shall be filed within 15 days thereafter.
5. The Clerk of the Court shall serve a copy of this order together with a copy of the May 1, 2009, petition for a writ of habeas corpus with any and all attachments on United States Attorney Lawrence G. Brown. The Clerk shall also serve on ...