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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 GERSON GUARDADO CUELLAR, Case No. 1:26-cv-01699-JLT-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENTS’ MOTION TO 13 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER CHESTNUT, et al., ORDER DENYING PETITIONER’S 15 Respondents. MOTION TO APPOINT COUNSEL
16 (ECF No. 3) 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2241. For the reasons discussed herein, the undersigned recommends granting 19 Respondents’ motion to dismiss and dismissing the petition. 20 I. 22 Petitioner is a citizen of El Salvador who was previously removed to El Salvador on 23 February 12, 2020 pursuant to a final order of removal. Petitioner reentered the United States on 24 an unknown date without inspection. (ECF No. 12-1 at 1–2.1) In 2024, Petitioner was convicted 25 of felony inflicting corporal injury in a domestic relationship with a prior, in violation of 26 California Penal Code (“CPC”) § 273.5(f)(1), and felony assault with a deadly weapon (not a 27 1 firearm), in violation of CPC § 245(a)(1). Petitioner was sentenced to four years in prison. (ECF 2 No. 12-1 at 3; ECF No. 12-5 at 19.) 3 Petitioner came to the attention of Immigration and Customs Enforcement (“ICE”) while 4 serving his sentence for his 2024 convictions with a release date of July 10, 2025. (ECF No. 12-1 5 at 2.) On the date of his release from prison, Petitioner was arrested and placed in immigration 6 custody. Petitioner’s prior order of removal was reinstated. (Id. at 3; ECF No. 12-2 at 2.) After an 7 asylum officer determined that Petitioner had a reasonable fear of persecution or torture, 8 Petitioner was referred to an immigration judge (“IJ”) and placed in withholding-only 9 proceedings. (ECF No. 12-2.) 10 On or about January 20, 2026, Petitioner had a bond hearing. (ECF No. 12-5 at 1–2.) The 11 IJ determined that Petitioner was a danger due to his criminal history2 and denied bond. (ECF 12 No. 12-3.) Petitioner reserved appeal of the IJ’s bond order, but he did not file an appeal with the 13 Board of Immigration Appeals (“BIA”) by the deadline. (ECF No. 12 at 3; ECF No. 12-3 at 2.) 14 On March 2, 2026, Petitioner filed the instant petition for writ of habeas corpus, asserting 15 a due process claim for prolonged detention without a bond hearing. (ECF No. 1.) On April 3, 16 2026, Respondents filed a motion to dismiss the petition because Petitioner received a bond 17 hearing and failed to exhaust administrative remedies. (ECF No. 12.) The motion to dismiss was 18 served on Petitioner on April 6, 2026. (ECF No. 13.) To date, opposition or statement of non- 19 opposition has been filed, and the time for doing so has passed. 20 II. 22 A. Motion to Dismiss 23 In the petition, Petitioner asserts a prolonged detention due process claim. (ECF No. 1 at 24 17.) Petitioner alleges that he has been detained since July 9, 2025 and has not been provided 25 with a bond hearing before a neutral decisionmaker because “[p]ursuant to 8 U.S.C. § 1226(c), 26 the Immigration Court lacks jurisdiction and authority to provide Petitioner with a bond hearing
27 2 Petitioner “was convicted in October 2024 of CAL PC 273.5 Domestic Violence and 245a1 Assault With Deadly Weapon. Also has been convicted of DUI, False Imprisonment, a fraud misdemeanor, and a 1 to determine whether Petitioner’s detention is justified.” (ECF No. 1 at 5.) Petitioner contends 2 that “[a]bsent intervention by this Court, Petitioner cannot and will not be provided with a bond 3 hearing by a neutral decision maker to assess the propriety of Petitioner’s continued detention.” 4 (ECF No. 1 at 5.) Respondents argue that the petition should be dismissed because “Petitioner 5 has received a bond hearing from an immigration judge and chose not to pursue administrative 6 review with the BIA.” (ECF No. 12 at 4.) 7 The undersigned recommends finding that Petitioner is not entitled to habeas relief on his 8 prolonged detention due process claim because Petitioner received a bond hearing before an 9 immigration judge in January 2026.3 To the extent the petition can be construed as challenging 10 the adequacy of the bond hearing, the undersigned recommends finding that such a claim should 11 be dismissed for failure to exhaust administrative remedies. 12 “As a prudential matter, courts require that habeas petitioners exhaust all available 13 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 14 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 15 prerequisite, exhaustion can be waived. Id. (citations omitted). “Courts may require prudential 16 exhaustion if”: 17 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation 18 of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to 19 allow the agency to correct its own mistakes and to preclude the need for judicial review. 20 21 Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (citations omitted)). “Nonetheless, even if 22 the three Puga factors weigh in favor of prudential exhaustion, a court may waive the prudential 23 exhaustion requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of 24 administrative remedies would be a futile gesture, irreparable injury will result, or the 25 administrative proceedings would be void.’” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 26 2017) (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 27 3 Given that Petitioner has failed to oppose the motion to dismiss, the Court declines to construe the 1 Here, Petitioner has failed to oppose the motion to dismiss and has not shown that waiver 2 of the exhaustion requirement is appropriate. Accordingly, Respondents’ motion to dismiss for 3 failure to exhaust administrative remedies should be granted. See Leonardo v. Crawford, 646 4 F.3d 1157, 1160 (9th Cir. 2011) (“Here, Leonardo pursued habeas review of the IJ’s adverse 5 bond determination before appealing to the BIA. This short cut was improper. Leonardo should 6 have exhausted administrative remedies by appealing to the BIA before asking the federal 7 district court to review the IJ’s decision. . . . Once the BIA rendered its decision, Leonardo could 8 have properly pursued habeas relief in the district court[.]”). 9 B. Motion for Appointment of Counsel 10 Petitioner has moved for appointment of counsel. (ECF No. 3.) There currently exists no 11 absolute right to appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 12 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). 13 However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the 14 proceeding for financially eligible persons if “the interests of justice so require.” See Rule 8(c), 15 Rules Governing Section 2254 Cases.
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 GERSON GUARDADO CUELLAR, Case No. 1:26-cv-01699-JLT-EPG-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENTS’ MOTION TO 13 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS 14 CHRISTOPHER CHESTNUT, et al., ORDER DENYING PETITIONER’S 15 Respondents. MOTION TO APPOINT COUNSEL
16 (ECF No. 3) 17 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2241. For the reasons discussed herein, the undersigned recommends granting 19 Respondents’ motion to dismiss and dismissing the petition. 20 I. 22 Petitioner is a citizen of El Salvador who was previously removed to El Salvador on 23 February 12, 2020 pursuant to a final order of removal. Petitioner reentered the United States on 24 an unknown date without inspection. (ECF No. 12-1 at 1–2.1) In 2024, Petitioner was convicted 25 of felony inflicting corporal injury in a domestic relationship with a prior, in violation of 26 California Penal Code (“CPC”) § 273.5(f)(1), and felony assault with a deadly weapon (not a 27 1 firearm), in violation of CPC § 245(a)(1). Petitioner was sentenced to four years in prison. (ECF 2 No. 12-1 at 3; ECF No. 12-5 at 19.) 3 Petitioner came to the attention of Immigration and Customs Enforcement (“ICE”) while 4 serving his sentence for his 2024 convictions with a release date of July 10, 2025. (ECF No. 12-1 5 at 2.) On the date of his release from prison, Petitioner was arrested and placed in immigration 6 custody. Petitioner’s prior order of removal was reinstated. (Id. at 3; ECF No. 12-2 at 2.) After an 7 asylum officer determined that Petitioner had a reasonable fear of persecution or torture, 8 Petitioner was referred to an immigration judge (“IJ”) and placed in withholding-only 9 proceedings. (ECF No. 12-2.) 10 On or about January 20, 2026, Petitioner had a bond hearing. (ECF No. 12-5 at 1–2.) The 11 IJ determined that Petitioner was a danger due to his criminal history2 and denied bond. (ECF 12 No. 12-3.) Petitioner reserved appeal of the IJ’s bond order, but he did not file an appeal with the 13 Board of Immigration Appeals (“BIA”) by the deadline. (ECF No. 12 at 3; ECF No. 12-3 at 2.) 14 On March 2, 2026, Petitioner filed the instant petition for writ of habeas corpus, asserting 15 a due process claim for prolonged detention without a bond hearing. (ECF No. 1.) On April 3, 16 2026, Respondents filed a motion to dismiss the petition because Petitioner received a bond 17 hearing and failed to exhaust administrative remedies. (ECF No. 12.) The motion to dismiss was 18 served on Petitioner on April 6, 2026. (ECF No. 13.) To date, opposition or statement of non- 19 opposition has been filed, and the time for doing so has passed. 20 II. 22 A. Motion to Dismiss 23 In the petition, Petitioner asserts a prolonged detention due process claim. (ECF No. 1 at 24 17.) Petitioner alleges that he has been detained since July 9, 2025 and has not been provided 25 with a bond hearing before a neutral decisionmaker because “[p]ursuant to 8 U.S.C. § 1226(c), 26 the Immigration Court lacks jurisdiction and authority to provide Petitioner with a bond hearing
27 2 Petitioner “was convicted in October 2024 of CAL PC 273.5 Domestic Violence and 245a1 Assault With Deadly Weapon. Also has been convicted of DUI, False Imprisonment, a fraud misdemeanor, and a 1 to determine whether Petitioner’s detention is justified.” (ECF No. 1 at 5.) Petitioner contends 2 that “[a]bsent intervention by this Court, Petitioner cannot and will not be provided with a bond 3 hearing by a neutral decision maker to assess the propriety of Petitioner’s continued detention.” 4 (ECF No. 1 at 5.) Respondents argue that the petition should be dismissed because “Petitioner 5 has received a bond hearing from an immigration judge and chose not to pursue administrative 6 review with the BIA.” (ECF No. 12 at 4.) 7 The undersigned recommends finding that Petitioner is not entitled to habeas relief on his 8 prolonged detention due process claim because Petitioner received a bond hearing before an 9 immigration judge in January 2026.3 To the extent the petition can be construed as challenging 10 the adequacy of the bond hearing, the undersigned recommends finding that such a claim should 11 be dismissed for failure to exhaust administrative remedies. 12 “As a prudential matter, courts require that habeas petitioners exhaust all available 13 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 14 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). However, because it is not a jurisdictional 15 prerequisite, exhaustion can be waived. Id. (citations omitted). “Courts may require prudential 16 exhaustion if”: 17 (1) agency expertise makes agency consideration necessary to generate a proper record and reach a proper decision; (2) relaxation 18 of the requirement would encourage the deliberate bypass of the administrative scheme; and (3) administrative review is likely to 19 allow the agency to correct its own mistakes and to preclude the need for judicial review. 20 21 Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007) (citations omitted)). “Nonetheless, even if 22 the three Puga factors weigh in favor of prudential exhaustion, a court may waive the prudential 23 exhaustion requirement if ‘administrative remedies are inadequate or not efficacious, pursuit of 24 administrative remedies would be a futile gesture, irreparable injury will result, or the 25 administrative proceedings would be void.’” Hernandez v. Sessions, 872 F.3d 976, 988 (9th Cir. 26 2017) (quoting Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004)). 27 3 Given that Petitioner has failed to oppose the motion to dismiss, the Court declines to construe the 1 Here, Petitioner has failed to oppose the motion to dismiss and has not shown that waiver 2 of the exhaustion requirement is appropriate. Accordingly, Respondents’ motion to dismiss for 3 failure to exhaust administrative remedies should be granted. See Leonardo v. Crawford, 646 4 F.3d 1157, 1160 (9th Cir. 2011) (“Here, Leonardo pursued habeas review of the IJ’s adverse 5 bond determination before appealing to the BIA. This short cut was improper. Leonardo should 6 have exhausted administrative remedies by appealing to the BIA before asking the federal 7 district court to review the IJ’s decision. . . . Once the BIA rendered its decision, Leonardo could 8 have properly pursued habeas relief in the district court[.]”). 9 B. Motion for Appointment of Counsel 10 Petitioner has moved for appointment of counsel. (ECF No. 3.) There currently exists no 11 absolute right to appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 12 F.2d 1191, 1196 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). 13 However, 18 U.S.C. § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the 14 proceeding for financially eligible persons if “the interests of justice so require.” See Rule 8(c), 15 Rules Governing Section 2254 Cases. To determine whether to appoint counsel, the “court must 16 evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate 17 his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 18 F.2d 952, 954 (9th Cir. 1983). 19 Upon review of the petition, the Court finds that Petitioner appears to have a sufficient 20 grasp of his claims and the legal issues involved and that he is able to articulate those claims 21 adequately. As set forth above, habeas relief is not warranted, and thus, Petitioner does not 22 demonstrate a likelihood of success on the merits such that the interests of justice require the 23 appointment of counsel. 26 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: 27 1. Respondents’ motion to dismiss (ECF No. 12) be GRANTED; and ] Further, Petitioner’s motion for appointment of counsel (ECF No. 3) is DENIED. 2 This Findings and Recommendation is submitted to the assigned United States District 3 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 4 | Rules of Practice for the United States District Court, Eastern District of California. Within 5 | FOURTEEN (14) days after service of the Findings and Recommendation, any party may file 6 | written objections, no longer than fifteen (15) pages, including exhibits, with the Court and 7 | serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 8 | Judge’s Findings and Recommendation.” Replies to the objections shall be served and filed 9 | within fourteen (14) days after service of the objections. The assigned United States District 10 | Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). 11 | The parties are advised that failure to file objections within the specified time may waive the 12 | right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 | 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14
16] Dated: _ June 9, 2026 [Je hey — 7 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28