1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CELESTINO RIOS DIAZ (A-240-173- No. 1:26-cv-3310 DC CSK 829), 12 Petitioner, 13 ORDER AND FINDINGS & v. RECOMMENDATIONS 14 WARDEN OF THE GOLDEN STATE 15 ANNEX FACILITY, et al., 16 Respondents. 17 18 Petitioner Celestino Rios Diaz (A-240-173-829), a citizen and native of Mexico, entered 19 the United States on or around April 2003 without inspection, and filed pro se a petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2241.1 Petitioner was detained by U.S. Immigration 21 and Customs Enforcement (“ICE”) on April 20, 2026. This habeas action concerns petitioner’s 22 detention. For the reasons that follow, the Court recommends denying the petition for a writ of 23 habeas corpus. 24 I. FACTUAL BACKGROUND 25 Petitioner is a national and citizen of Mexico. (ECF No. 7-1 at 1.) On or around April 26 2003, petitioner entered the United States without inspection. (ECF No. 1 at 4.) On September 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, 28 and Local Rule 302(c)(17). 1 29, 2016, petitioner was convicted of cultivating marijuana in violation of California Health and 2 Safety Code § 11358. (ECF No. 7-1 at 15.) On April 4, 2026, petitioner was arrested for driving 3 under the influence in violation of California Vehicle Code § 23152(a) and driving without a 4 license in violation of California Penal Code § 12500. (Id. at 17.) On April 20, 2026, petitioner’s 5 custody was transferred from the Fresno County Jail to ICE. (Id. at 2.) This was petitioner’s first 6 encounter with immigration authorities. (Id. at 3.) Petitioner has been in continuous detention 7 since April 20, 2026. (See ECF No. 1.) 8 II. PROCEDURAL BACKGROUND 9 On April 30, 2026, petitioner filed the petition for writ of habeas corpus and a motion to 10 appoint counsel. (ECF Nos. 1, 3.) On May 8, 2026, respondents filed a timely response to the 11 petition. (ECF No. 7.) Petitioner did not file a reply. (See Docket.) Briefing is now complete. 12 III. LEGAL STANDARD 13 The Constitution guarantees the availability of the writ of habeas corpus “to every individual 14 detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., 15 Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in custody upon the legality 16 of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” 17 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a 18 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law. 19 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of reviewing 20 the legality of Executive detention, and it is in that context that its protections have been strongest.” 21 I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction includes challenges 22 to immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 23 IV. DISCUSSION 24 Petitioner challenges his continued detention on the grounds that his prolonged detention 25 violates the Fifth Amendment due process clause. (ECF No. 1 at 17-18.) Respondents argue 26 that petitioner is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c)(1) as his 27 conviction for cultivating marijuana is an aggravated felony, rendering petitioner inadmissible 28 / / / 1 under 8 U.S.C. § 1227(a)(2)(A)(iii).2 (ECF No. 7 at 2.) 2 A. Due Process Claim 3 In analyzing petitioner’s challenge to his detention, the court “must first identify the 4 statutory provision that purports to confer” authority for his detention. See Prieto-Romero v. 5 Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Respondents argue that petitioner is subject to 6 mandatory detention pursuant to 8 U.S.C. § 1226(c)(1) because his conviction of an aggravated 7 felony renders him inadmissible under 8 U.S.C. § 1227(a)(2)(A)(iii.) (ECF No. 7 at 2.) 8 Section 1226(c)(1)(B) mandates detention for any noncitizen who is removable by reason 9 of having committed any offense covered in section 8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), 10 (C) or (D). 8 U.S.C. § 1227(a)(2)(A)(iii) provides that an alien convicted of an aggravated felony 11 after admission is removable. A conviction for marijuana cultivation in violation of California 12 Health and Safety Code § 11358 is an aggravated felony rendering petitioner removable under 13 8 U.S.C. § 1227(a)(2)(A)(iii). See Masters v. Schiltgen, 28 Fed. Appx. 712, 714 (9th Cir. 2002) 14 (“Master’s California conviction for marijuana cultivation in violation of Section 11358 of the 15 California Health and Safety Code is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), 16 rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).”). 17 This Court observes that on May 31, 2017, petitioner’s felony conviction for violating 18 California Health and Safety Code § 11358 was reclassified as a misdemeanor pursuant to 19 California Health and Safety Code § 11361.8. (See ECF No. 7-1 at 15-16.) On November 8, 20 2016, California voters passed the Control, Regulate and Tax Adult Use of Marijuana Act 21 (“Proposition 64”), which reduced various drug offenses from felonies to misdemeanors. See 22 Cal. Health & Safety Code § 11359. Proposition 64 also allowed individuals to apply for post- 23 conviction relief to have a felony conviction dismissed or reclassified as a misdemeanor. See Cal. 24 Health & Safety Code § 11361.8(e). Petitioner’s reclassification of his felony conviction to a 25 misdemeanor pursuant to California Health and Safety Code § 11361.8 does not alter the fact that 26 2 Respondents may also be arguing that petitioner is subject to mandatory detention because he 27 is inadmissible for having been convicted of violating a law relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because it is not clear whether respondents raise this 28 argument, this Court will not address this issue in these findings and recommendations. 1 petitioner was convicted of an aggravated felony for immigration purposes.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CELESTINO RIOS DIAZ (A-240-173- No. 1:26-cv-3310 DC CSK 829), 12 Petitioner, 13 ORDER AND FINDINGS & v. RECOMMENDATIONS 14 WARDEN OF THE GOLDEN STATE 15 ANNEX FACILITY, et al., 16 Respondents. 17 18 Petitioner Celestino Rios Diaz (A-240-173-829), a citizen and native of Mexico, entered 19 the United States on or around April 2003 without inspection, and filed pro se a petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2241.1 Petitioner was detained by U.S. Immigration 21 and Customs Enforcement (“ICE”) on April 20, 2026. This habeas action concerns petitioner’s 22 detention. For the reasons that follow, the Court recommends denying the petition for a writ of 23 habeas corpus. 24 I. FACTUAL BACKGROUND 25 Petitioner is a national and citizen of Mexico. (ECF No. 7-1 at 1.) On or around April 26 2003, petitioner entered the United States without inspection. (ECF No. 1 at 4.) On September 27 1 This matter proceeds before the undersigned pursuant to 28 U.S.C. § 636, Fed. R. Civ. P. 72, 28 and Local Rule 302(c)(17). 1 29, 2016, petitioner was convicted of cultivating marijuana in violation of California Health and 2 Safety Code § 11358. (ECF No. 7-1 at 15.) On April 4, 2026, petitioner was arrested for driving 3 under the influence in violation of California Vehicle Code § 23152(a) and driving without a 4 license in violation of California Penal Code § 12500. (Id. at 17.) On April 20, 2026, petitioner’s 5 custody was transferred from the Fresno County Jail to ICE. (Id. at 2.) This was petitioner’s first 6 encounter with immigration authorities. (Id. at 3.) Petitioner has been in continuous detention 7 since April 20, 2026. (See ECF No. 1.) 8 II. PROCEDURAL BACKGROUND 9 On April 30, 2026, petitioner filed the petition for writ of habeas corpus and a motion to 10 appoint counsel. (ECF Nos. 1, 3.) On May 8, 2026, respondents filed a timely response to the 11 petition. (ECF No. 7.) Petitioner did not file a reply. (See Docket.) Briefing is now complete. 12 III. LEGAL STANDARD 13 The Constitution guarantees the availability of the writ of habeas corpus “to every individual 14 detained within the United States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. Const., 15 Art I, § 9, cl. 2). “The essence of habeas corpus is an attack by a person in custody upon the legality 16 of that custody, and . . . the traditional function of the writ is to secure release from illegal custody.” 17 Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A writ of habeas corpus may be granted to a 18 petitioner who demonstrates that he is in custody in violation of the Constitution or federal law. 19 28 U.S.C. § 2241(c)(3). Historically, “the writ of habeas corpus has served as a means of reviewing 20 the legality of Executive detention, and it is in that context that its protections have been strongest.” 21 I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). A district court’s habeas jurisdiction includes challenges 22 to immigration detention. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). 23 IV. DISCUSSION 24 Petitioner challenges his continued detention on the grounds that his prolonged detention 25 violates the Fifth Amendment due process clause. (ECF No. 1 at 17-18.) Respondents argue 26 that petitioner is subject to mandatory detention pursuant to 8 U.S.C. § 1226(c)(1) as his 27 conviction for cultivating marijuana is an aggravated felony, rendering petitioner inadmissible 28 / / / 1 under 8 U.S.C. § 1227(a)(2)(A)(iii).2 (ECF No. 7 at 2.) 2 A. Due Process Claim 3 In analyzing petitioner’s challenge to his detention, the court “must first identify the 4 statutory provision that purports to confer” authority for his detention. See Prieto-Romero v. 5 Clark, 534 F.3d 1053, 1057 (9th Cir. 2008). Respondents argue that petitioner is subject to 6 mandatory detention pursuant to 8 U.S.C. § 1226(c)(1) because his conviction of an aggravated 7 felony renders him inadmissible under 8 U.S.C. § 1227(a)(2)(A)(iii.) (ECF No. 7 at 2.) 8 Section 1226(c)(1)(B) mandates detention for any noncitizen who is removable by reason 9 of having committed any offense covered in section 8 U.S.C. § 1227(a)(2)(A)(ii), (A)(iii), (B), 10 (C) or (D). 8 U.S.C. § 1227(a)(2)(A)(iii) provides that an alien convicted of an aggravated felony 11 after admission is removable. A conviction for marijuana cultivation in violation of California 12 Health and Safety Code § 11358 is an aggravated felony rendering petitioner removable under 13 8 U.S.C. § 1227(a)(2)(A)(iii). See Masters v. Schiltgen, 28 Fed. Appx. 712, 714 (9th Cir. 2002) 14 (“Master’s California conviction for marijuana cultivation in violation of Section 11358 of the 15 California Health and Safety Code is an aggravated felony under 8 U.S.C. § 1101(a)(43)(B), 16 rendering him removable under 8 U.S.C. § 1227(a)(2)(A)(iii).”). 17 This Court observes that on May 31, 2017, petitioner’s felony conviction for violating 18 California Health and Safety Code § 11358 was reclassified as a misdemeanor pursuant to 19 California Health and Safety Code § 11361.8. (See ECF No. 7-1 at 15-16.) On November 8, 20 2016, California voters passed the Control, Regulate and Tax Adult Use of Marijuana Act 21 (“Proposition 64”), which reduced various drug offenses from felonies to misdemeanors. See 22 Cal. Health & Safety Code § 11359. Proposition 64 also allowed individuals to apply for post- 23 conviction relief to have a felony conviction dismissed or reclassified as a misdemeanor. See Cal. 24 Health & Safety Code § 11361.8(e). Petitioner’s reclassification of his felony conviction to a 25 misdemeanor pursuant to California Health and Safety Code § 11361.8 does not alter the fact that 26 2 Respondents may also be arguing that petitioner is subject to mandatory detention because he 27 is inadmissible for having been convicted of violating a law relating to a controlled substance. See 8 U.S.C. § 1182(a)(2)(A)(i)(II). Because it is not clear whether respondents raise this 28 argument, this Court will not address this issue in these findings and recommendations. 1 petitioner was convicted of an aggravated felony for immigration purposes. This is because 2 “federal immigration law does not recognize a state’s policy decision to expunge (or recall or 3 reclassify) a valid state conviction.” Prado v. Barr, 949 F.3d 438, 441 (9th Cir. 2020). 4 Petitioner’s initial felony conviction for violating California Penal Code § 11358 retained its 5 immigration consequences despite having been reduced to a misdemeanor pursuant to California 6 Health and Safety Code § 11361.8. See Prado, 949 F.3d at 441-43 (felony conviction for 7 possession of marijuana for sale in violation of California Health and Safety Code § 11359, 8 reclassified to a misdemeanor pursuant to Proposition 64, retained its immigration consequences, 9 including being an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii)). 10 Based on the record presently before the Court, this Court concludes that petitioner is 11 detained pursuant to 8 U.S.C. § 1226(c)(1)(B) because he is subject to removal pursuant to 12 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for marijuana cultivation in violation of 13 California Health and Safety Code § 11358. 14 Pursuant to § 1226(c), “detention is mandatory, and a noncitizen of the United States . . . 15 therefore is not statutorily entitled to a bond hearing.” Avilez v. Garland, 69 F.4th 525, 529 (9th 16 Cir. 2023); see 8 U.S.C. § 1226(c)(1); Jennings v. Rodriguez, 583 U.S. 281, 303 (2018). 17 This does not end the inquiry, however, because petitioner has raised a due process claim. 18 While the Supreme Court has rejected a facial challenge to mandatory detention under § 1226(c) 19 in Demore v. Kim, 538 U.S. 510 (2003), an as applied challenge is not foreclosed and Justice 20 Kennedy’s concurring opinion in Demore specifically noted that “since the Due Process Clause 21 prohibits arbitrary deprivations of liberty, a lawful permanent resident alien such as [Kim] could 22 be entitled to an individualized determination as to his risk of flight and dangerousness if the 23 continued detention became unreasonable or unjustified.” Id. at 532. In addition, “[t]he Ninth 24 Circuit has yet to take a position on whether due process requires a bond hearing for noncitizens 25 detained under 8 U.S.C. § 1226(c).” Loba L.M. v. Andrews, et al., No. 1:25-cv-0611 JLT SAB, 26 2025 WL 2939178, at *4 (E.D. Cal. Oct. 16, 2025), report and recommendation adopted, 2025 27 WL 3187577 (E.D. Cal. Nov. 14, 2025); see Avilez, 69 F.4th at 538 (declining to determine 28 whether due process requires a bond hearing for noncitizens detained pursuant to § 1226(c)). 1 “Although the Ninth Circuit has yet to take a position on whether due process requires a bond 2 hearing for noncitizens detained under 8 U.S.C. § 1226(c), the First, Second, and Third Circuits 3 have found that ‘the Due Process Clause imposes some form of ‘reasonableness’ limitation upon 4 the duration of detention . . . under [section 1226(c)].’” Loba L.M., 2025 WL 2939178, at *5 5 (quoting Reid v. Donelan, 17 F.4th 1, 7 (1st Cir. 2021); citing Black v. Decker, 103 F.4th 133, 6 138 (2d Cir. 2024) (“conclud[ing] that a noncitizen's constitutional right to due process precludes 7 his unreasonably prolonged detention under section 1226(c) without a bond hearing”); German 8 Santos v. Warden Pike Cnty. Corr. Facility, 965 F.3d 203, 209-10 (3d Cir. 2020) (holding that 9 after Demore and Jennings, petitioners detained pursuant to § 1226(c) can still bring as-applied 10 challenges to their detention and that due process affords them a bond hearing once detention 11 becomes unreasonable)). “[E]ssentially all district courts that have considered the issue agree that 12 prolonged mandatory detention pending removal proceedings, without a bond hearing, ‘will—at 13 some point—violate the right to due process.’” Martinez v. Clark, No. 2:18-cv-01669-RAJ, 2019 14 WL 5968089, at *6 (W.D. Wash. May 23, 2019), report and recommendation adopted, 2019 WL 15 5962685 (W.D. Wash. Nov. 13, 2019) (citation omitted); see also Loba L.M., 2025 WL 2939178, 16 at *5. This Court joins other courts that have found that unreasonably prolonged detention 17 pursuant to § 1226(c) without a bond hearing can violate due process. See Keo v. Chestnut, et al., 18 No. 1:26-cv-1192 DJC CSK, 2026 WL 747117, at *2 (E.D. Cal. Mar. 17, 2026); Loba L.M., 19 2025 WL 2939178, at *5. 20 The Due Process Clause protects persons in the United States from being deprived of life, 21 liberty, or property without due process of law. U.S. Const. amend. V. “It is clear that 22 commitment for any purpose constitutes a significant deprivation of liberty that requires due 23 process protection.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). “[T]he Due Process Clause 24 applies to all ‘persons’ within the United States, including aliens, whether their presence here is 25 lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693. “The Due Process 26 clause applies to noncitizens in this country in connection with removal proceedings, even if their 27 presence is unlawful or temporary.” Tinoco v. Noem, 2025 WL 3567862, at *5 (E.D. Cal. Dec. 28 14, 2025) (citing Zadvydas, 533 U.S. at 690). 1 The court analyzes petitioner’s due process claim “in two steps: the first asks whether 2 there exists a protected liberty interest under the Due Process Clause, and the second examines 3 the procedures necessary to ensure any deprivation of that protected liberty interest accords with 4 the Constitution.” Garcia v. Andrews, 2025 WL 1927596, at *2 (E.D. Cal. July 14, 2025) (citing 5 Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989)). Because petitioner has 6 been detained for almost two months, this Court finds that petitioner does not yet have a protected 7 liberty interest in freedom from detention. Courts finding protected liberty interests in freedom 8 from detention have based their findings on detention longer than six months. See Pacheco v. 9 Warden, 2026 WL 1067486, at *4 (E.D. Cal. Apr. 17, 2026), findings and recommendations 10 adopted, 2026 WL 1169236 (E.D. Cal. Apr. 28, 2026) (finding petitioner detained for over one 11 year pursuant to §1226(c) had protected liberty interest); Lopez v. Warden, 2026 WL 834573, at 12 * 3 (E.D. Cal. Mar. 26, 2026) (finding petitioner detained for over ten months pursuant to § 13 1226(c) had protected liberty interest); Palencia v. Warden, 2026 WL 818580, at *3 (E.D. Cal. 14 Mar. 25, 2026), findings and recommendations adopted, 2026 WL 939469 (E.D. Cal. Apr. 7, 15 2026) (finding petitioner detained for over eight months pursuant to § 1226(c) had protected 16 liberty interest); Keo, 2026 WL 747117, at *2 (concluding clear liberty interest in freedom from 17 detention where petitioner was detained pursuant to § 1226(c) for over 37 months). Petitioner’s 18 detention does not exceed the time period the Supreme Court noted in Demore: “the detention at 19 stake under § 1226(c) lasts roughly a month and a half in the vast majority of cases in which it is 20 invoked, and about five months in the minority of cases in which the alien chooses to appeal.” 21 Demore, 538 U.S. at 530. Because petitioner has not demonstrated a liberty interest based on his 22 detention of almost two months, the petition for writ of habeas corpus should be denied. See 23 Rakeshkumar H.P. v. Warden, 2026 WL 1146201, at *1-2 (E.D. Cal. Apr. 28, 2026) (finding no 24 liberty interest where petitioner detained for a little over two months pursuant to § 1226(c)). 25 V. MOTION FOR APPOINTMENT OF COUNSEL 26 Petitioner filed a motion for appointment of counsel. (ECF No. 3.) There currently exists 27 no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner, 105 28 F.3d 453, 460 (9th Cir. 1996). Under 18 U.S.C. § 3006A, the court can appoint counsel at any 1 || stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R. Governing § 2254 2 || Cases. The Court concludes that the interests of justice do not require appointment of counsel, 3 || and petitioner’s motion for appointment of counsel is denied without prejudice. 4 | VI. CONCLUSION 5 In summary, the Court recommends that the petition for writ of habeas corpus be denied. 6 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for appointment of 7 || counsel (ECF No. 3) is denied without prejudice. 8 IT IS HEREBY RECOMMENDED that: 9 1. The petition for writ of habeas corpus (ECF No. 1) be DENIED. 10 2. The Clerk of the Court be directed to enter judgment in favor of Respondents and 11 close this case. 12 These findings and recommendations are submitted to the United States District Judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days of the 14 | date of these findings and recommendations, any party may file written objections with the court 15 || and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 16 || Judge’s Findings and Recommendations.” Any response to the objections shall be filed and 17 || served within seven days after service of the objections. The parties are advised that failure to 18 || file objections within the specified time may waive the right to appeal the District Court’s order. 19 || See Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 20 21 | Dated: June 3, 2026 A aA Aan Spe | CHI SOO KIM 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 Diaz3310.157/2 27 28