United States District Court, C.D. California
MEMORANDUM DECISION AND ORDER: (1) CONSOLIDATING
CASES; AND (2) APPOINTING COUNSEL
SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE
December 28, 2015, Cesar Paz Negrete
(“Petitioner”), then a federal immigration
detainee proceeding pro se, constructively filed two
Petitions for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241. (See Paz-Negrete v. Sec. Homeland Security, CD.
Cal. SACV 16-0003 GW (SS) (the “003 Petition”),
and Paz-Negrete v. Sec. Homeland Security, CD. Cal. SACV
16-0112 GW (SS) (the “112
Petition”). Both Petitions name the “Secretary
of Homeland Security” and “Immigration and
Customs Enforcement” as joint respondents. (003
Petition, Dkt. No. 1 at 1-2; 112 Petition, Dkt. No. 1 at
1-2). In addition, both Petitions implicate Petitioner's
2014 conviction for assault with a deadly weapon other than a
firearm (Cal. Penal Code § 245(a)(1)), for which
Petitioner was sentenced, following a jury trial, to a
three-year term in state prison. (003 Petition, Dkt. No. 1 at
2; 112 Petition, Dkt. No. 1 at 2).
Petition ostensibly challenges Petitioner's 2014
conviction. In the final version of Petitioner's claims,
the 003 Petition raises four grounds for federal habeas
relief, based on:
trial court's failure to give a requested jury
ineffective assistance of trial and appellate counsel;
Petitioner's unknowing waiver of the right to testify;
and (4) prosecutorial misconduct during closing argument.
(003 Petition, Dkt. No. 19, at 5-6). The 112 Petition raises
one ground for federal habeas relief, alleging that DHS
improperly obtained an immigration detainer based on
Petitioner's 2014 conviction, even though the conviction
was still under appeal and “[t]he possibility Roberts
v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see also
Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014)
(“We assume that [petitioner] turned his petition over
to prison authorities on the same day he signed it and apply
the mailbox rule.”). Although the Court received the
Petitions in the 003 Petition and the 112 Petition three
weeks apart, both were executed on December 28, 2015. Because
neither Petition attached a proof of service, the Court
adopts the date the Petitions were signed as their
constructive filing date. of proving [Petitioner's]
innocence still exists.” (112 Petition, Dkt. No. 1 at 4).
According to evidence submitted in both the 003 Petition and
the 112 Petition, Petitioner was deported to Mexico on May
23, 2017. (003 Petition, Dkt. No. 33 at 2, 5; 112 Petition,
Dkt. No. 19 at 2, 5). While Petitioner's address of
record remains a private residence in Santa Ana, California,
the return address on the envelope containing his most recent
communication with the Court appears to be a private
residence in Tijuana, Mexico. (003 Petition, Dkt. No. 30 at
2). Although the Court entered judgment in the 112 Petition
in November 2017 based on Petitioner's apparent failure
to prosecute, (id., Dkt. No. 24), on February 6, 2018, the
Court vacated that judgment and re-opened the case.
(Id., Dkt. No. 25).
to Federal Rule of Civil Procedure 42, “[i]f actions
before the court involve a common question of law or fact,
the court may . . . consolidate the actions.”
Fed.R.Civ.P. 42(a)(2). “A district court generally has
‘broad' discretion to consolidate actions, ”
which is reviewed under an abuse of discretion standard.
Pierce v. Cnty. of Orange, 526 F.3d 1190, 1203 (9th Cir.
2008); see also Investors Research Co. v. U.S. Dist. Court
for Cent. Dist. of California, 877 F.2d 777, 777 (9th Cir.
1989) (broad discretion to consolidate actions pending in the
Petitioner split his claims into the 003 and 112 Petitions,
the issues they raise are intertwined. Reading the 003 and
112 Petitions together, Petitioner appears to contend that he
was improperly detained because the purported justification
for his detention was an invalid underlying conviction. The
Ninth Circuit instructs that “‘[a] habeas
petition challenging the underlying conviction is never moot
simply because, subsequent to its filing, the petitioner has
been released from custody.'” Wilson v. Terhune,
319 F.3d 477, 479 (9th Cir. 2003) (quoting Chacon v. Wood, 36
F.3d 1459, 1463 (9th Cir. 1994) (finding that as long as
there is a possibility of collateral consequences from a
conviction, the release of a prisoner does not moot his
habeas petition)). Furthermore, the Ninth Circuit has also
found that a petitioner's deportation does not
automatically render his claim moot. Abdala v. I.N.S., 488
F.3d 1061, 1064 (9th Cir. 2007) (citing Chacon and
Zegarra-Gomez v. INS, 314 F.3d 1124, 1126-27 (9th Cir.
2003)). Accordingly, in the interest of judicial economy and
to avoid unnecessary costs or delay, the Court ORDERS that
these actions are consolidated as one action under case
number SACV 16-0003 GW (SS).
based upon its review of the Petitions, the Court finds that
Petitioner's claims raise complex issues of law and fact
that would be difficult to litigate pro se in light of
Petitioner's removal to Mexico while his claims were
pending. Accordingly, the Court concludes that the interests
of justice would be served by the appointment of counsel
here. The Court has the inherent authority under 18 U.S.C.
§ 3006A to appoint counsel in these circumstances.
the Federal Public Defender for the Central District of
California is hereby appointed as counsel for Petitioner in
this consolidated matter, for the purpose of addressing the
mootness contention as well as the underlying merits. The
Federal Public Defender is directed to immediately make
arrangements with the court clerk to review the files and
secure copies of whatever is necessary in order to properly
consult with and advise Petitioner regarding the viability of
his claims and his legal options at this juncture. The
attorney assigned to this matter shall enter a Notice of
Appearance as soon as possible, but no later than ten
days from the date of this Order.
Court sets a telephonic status conference for March 13, 2018
at 11:00 a.m. A separate order will issue with call-in