United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE
brought this action for writ of habeas corpus seeking release
from immigration detention. The petition was denied on July
17, 2017. ECF No. 29. On July 31, 2017, petitioner filed a
“Motion to Make Additional Findings and Amend the
Judgment.” ECF No. 31. That motion was denied on
December 20, 2017. ECF No. 36. On January 2, 2018, petitioner
filed a “Motion to Appoint Counsel and Proceed in Forma
Pauperis” (ECF No. 37), a “Motion for Release
Pending Appeal” (ECF No. 38), and a Notice of Appeal
(ECF No. 39). As discussed below, the motions to appoint
counsel and to proceed in forma pauperis (“IFP”)
are denied and it is recommended that petitioner's motion
for release be denied.
of Counsel and In Forma Pauperis Status
Request to Proceed IFP
appeal is currently pending before the Ninth Circuit.
Nevertheless, “[t]he decision to allow an appeal to
proceed IFP remains within the jurisdiction of the trial
court after the filing of an appeal.” Zambrano v.
Gipson, No. LA CV 15-01794, 2016 U.S. Dist. LEXIS
124226, 2016 WL 4040649, at *1 (C.D. Cal. July 6, 2016)
(citation omitted). And, although the district judge declined
to issue a certificate of appealability (“COA”)
(ECF No. 29), the standard for granting an application to
proceed IFP is lower than that for a COA. See Gardner v.
Pogue, 558 F.3d 548, 550 (9th Cir. 1977) (“To the
extent that appellant equates the issuance of a certificate
of probable cause with permission to prosecute an appeal in
forma pauperis, he has misstated the law. . . . The test for
granting a certificate of probable cause is
the court must deny petitioner's current request to
proceed IFP. Crucially, he has failed to comply with the
requirements of Fed. R. App. P. 24(a)(1). He has not
provided the required affidavit or otherwise shown his
inability to pay or to give security for fees and costs. Fed.
R. App. P. 24(a)(1)(A). Rather, he simply states that his
savings have “been siphoned by the legal expenses [he]
has incurred” and that he has “no way of paying
for the court fees.” ECF No. 37 at 2. The appellate
rules require an affidavit that “shows the detail
prescribed by Form 4 of the Appendix of Forms.” Fed. R.
App. P. 24(a)(1)(A). That required detail is far greater than
what petitioner has provided. Thus, petitioner's request
to proceed IFP will be denied without prejudice.
Request for Appointment of Counsel
district court may appoint counsel for financially eligible
petitioners seeking relief under 28 U.S.C. § 2241 when
the interests of justice so require. See 18 U.S.C.
§ 3006A (a)(2). The court finds that the interests of
justice do not militate in favor of appointment in this case.
Notably, the court has already denied the current petition
and declined to issue a certificate of appealability. ECF No.
29. Additionally, petitioner's claims are neither novel
nor complex and, based on his petition, he appears capable of
articulating those claims himself.
for Release Pending Appeal
also requests, pursuant to Fed. R. App. P. 23(b),
be released on “reasonable bond and/or reasonable
conditions on (sic) supervision.” ECF No. 38 at 2. The
Ninth Circuit has previously held that the applicable
standard for evaluating such a request is:
the traditional standard for interim injunctive relief,
[according to which] the moving party must show either (1) a
probability of success on the merits and the possibility of
irreparable harm, or (2) that serious legal questions are
raised and the balance of hardships tips sharply in the
moving party's favor.
v. Gonzales, 443 F.3d 1069, 1083 (9th Cir. 2006). As
noted in the foregoing section, this court has already denied
petitioner's claims and declined to issue a certificate
of appealability. For the same reasons that the petition was
denied and no certificate was issued, the court concludes
that petitioner's probability of success on the merits is
the irreparable harm prong, petitioner argues that he has
spent more than 34 months in “prison-like
detention” and the failure to release him pending the
outcome of his appeal would cause him to “be suffering
irreparable harm further (sic).” While the loss of
personal liberty even for limited duration is irreparable,
this prong must be viewed in the context full of detention
considerations under Fed. R. App. P. 23(b). Petitioner argues
that: (1) he considers this country his home; (2) his family
members are United States citizens or lawful permanent
residents; and (3) that he goes to school, church, and works
in Northern California. ECF No. 38 at 2. These are important
considerations but do not take account of the
government's rationale for his continued detention. A
recent decision of the Board of Immigration Appeals
determined that petitioner was ineligible for bond because he
was a flight risk. ECF No. 35 at 12-13. It noted that
petitioner “fled his native Philippines to avoid a
pending homicide charge” and affirmed the Immigration