Beyene v. Wolf

Opinion

SAMUEL BEYENE, Case No. 20-cv-01703-BAS-MSB

Petitioner, ORDER SETTING BRIEFING v. SCHEDULE

CHAD F. WOLF, et al.,

Respondents. Mr. Beyene is a national of Eritrea who seeks release from the custody of United States Immigration and Customs Enforcement (ICE) pending removal. He brought the present action under 28 U.S. § 2241, arguing that he is eligible for release under Zadvydas v. Davis, 533 U.S. 678 (2001), because he has been held in the custody of ICE for more than fourteen months after his removal order and his removal is not reasonably foreseeable. (ECF No. 1.) Mr. Beyene also moves for an appointment of counsel. (ECF No. 3.) The Court may appoint counsel for financially eligible persons seeking habeas relief if “the interests of justice so require.” 28 U.S.C. § 3006A(a)(2)(B). “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 v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Under the Rules Governing Section 2254 proceedings,! the court appoint counsel “[i]f necessary for effective discovery” or “if an evidentiary hearing /1s warranted.” 28 U.S.C. § 2254 Rules 6(a), 8(c); Weygandt, 718 F.2d at 954. The Court finds that further briefing is necessary to determine whether evidentiary issues exist in this case. Accordingly, the Court ORDERS Respondents to file an answer to Mr. Beyene’s Petition (ECF No. 1) and Motion for Appointment of Counsel (ECF No. 3) no later than October 14, 2020. Petitioner may file a reply no later than November 4, 2020. Further, the Court directs the Clerk of Court to serve a copy of this Order on the United States Attorney’s Office for the Southern District of California. DATED: September 22, 2020 ( yi 4 (Hiphanr 6 United States District Judge ———_ The district court may apply the Rules Governing § 2254 Cases to habeas actions filed under 28 U.S.C. § 2241. 28 U.S.C. § 2254 Rule 1(b); Woodall v. Kolender, No. 07-CV-1583 H AJB, 2007 WL 2406901, at *1 (S.D. Cal. Aug. 20, 2007) (“The Court . . . has discretion to apply the Rules Governing Section 2254 Cases to petitioner’s habeas corpus action filed pursuant to 28 U.S.C. § 2241.”). _9.