Sergei Totskii v. Christopher Larose

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGEI TOTSKII, Case No. 26-cv-1053-JES-JLB

12 Petitioner, ORDER: 13 v. (1) GRANTING MOTION TO 14 CHRISTOPHER LAROSE, PROCEED IN FORMA PAUPERIS; 15 Respondent. (2) DISMISSING PETITION WITH 16 LEAVE TO AMEND; and 17 (3) DENYING AS MOOT MOTION 18 TO EXPEDITE 19 20 [ECF Nos. 1, 7, 11] 21 Before the Court is Petitioner Sergei Totskii’s (“Petitioner”): (1) Petition for Writ of 22 Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 6.); (2) Request to proceed in forma 23 pauperis (“IFP”) (ECF No. 7); and (3) Motion to expedite (ECF No. 11). 24 Petitioner filed his original petition on December 22, 2025, in the Central District of 25 California. ECF No. 1. The Court dismissed that petition with leave to amend, noting that 26 the petition consisted only of “copy of removal orders, medical records, and other 27 documents” and did not state the grounds for relief. ECF No. 4. Petitioner subsequently 28 1 filed a First Amended Petition (“FAP”), which is the current operative petition. ECF No. 2 6. On the same day, Petitioner filed request to proceed in forma pauperis (“IFP”). ECF No. 3 7. On February 10, 2026, the case was transferred to this Court because Petitioner is 4 detained at Otay Mesa Detention Center, which is located with this district. ECF No. 8. On 5 February 24, 2026, Petitioner filed a motion to expedite and motion for Order to Show 6 Cause. ECF No. 11. 7 First, as to Petitioner’s request to proceed IFP, he claimed to previously have a job 8 from August 2024 to May 2025, but he has been in detention since May and has not earned 9 any income since. ECF No. 7. He claims to have a car but does not claim to have any 10 money in cash or bank accounts. Id. The Court finds Petitioner to have made the requisite 11 showing and GRANTS his request to proceed in forma pauperis. ECF No. 7. 12 Second, upon consideration of a habeas petition under § 2241, the court shall “award 13 the writ or issue an order directing the respondent to show cause why the writ should not 14 be granted, unless it appears from the application that the applicant or person detained is 15 not entitled thereto.” 28 U.S.C. § 2243. “Summary dismissal is appropriate only where the 16 allegations in the petition are vague or conclusory, palpably incredible, or patently 17 frivolous or false.” Kourteva v. I.N.S., 151 F. Supp. 2d 1126, 1128 (N.D. Cal. 2001) (citing 18 Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)). 19 Here, in the first petition, Petitioner only provided copies of various immigration 20 documents, including (1) a December 1, 2025, Immigration Judge order denying bond 21 finding that the government had established by clear and convincing evidence that 22 Petitioner was a flight risk, (2) a Notice of Appeal filed on October 21, 2025, for appeal of 23 his removal order; (3) a September 19, 2025, Order of the Immigration Judge denying 24 Petitioner’s asylum and withholding of removal claims, and ordering him removed to 25 Russia, or in the alternative, removed to Ukraine. ECF No. 1. From these documents, the 26 Court is able to gather the following potential facts. Petitioner entered the country in 2024. 27 ECF No. 1 at 1. He had been “detained for the majority, if not all, of this time in the United 28 1 States.” Id. He has a final order of removal pending against him right now, however it is 2 being appealed. Id. 3 Once that first petition was dismissed for failure to state the grounds of relief, 4 Petitioner filed the FAP, which contained no facts, but stated the following two grounds: 5 violation of the Fifth Amendment right to Due Process and violation of the Administrative 6 Procedure Act. ECF No. 6. 7 From other documents that Petitioner has filed, including his petition to proceed IFP 8 and his motion to expedite, Petitioner has repeatedly stated that he has been detained since 9 May 21, 2025. See ECF No. 11 at 2; ECF No. 7; ECF No. 2. 10 As Petitioner’s current petition stands, the Court must dismiss the case. An amended 11 petition supersedes and effectively replaces the prior petition. See Martell v. United States, 12 No. 3:24-CV-00068-MR, 2024 WL 1260592, at *1 (W.D.N.C. Mar. 25, 2024) (“The 13 Amended § 2241 Petition will supersede and replace the original § 2241 Petition so that 14 any claims not included in the Amended Petition will be waived.”). Thus, while the FAP 15 includes the grounds for relief, it includes no facts to support the grounds for relief and the 16 Court cannot consider the facts in the original petition because that was effectively fully 17 replaced by the FAP. Thus, Petitioner must put both the facts and grounds for relief 18 collectively in a single petition for the Court to consider them together. 19 In addition, the Court notes that there are conflicting or missing material facts in the 20 current submissions. For example, Petitioner does not indicate how he entered the United 21 States in the first place, and at that time, whether he was detained or was ever released by 22 the government at that time on some form of parole or bond. He claims he was detained in 23 May 2025, so it appears that he may have lived for a period in the United States while he 24 was free from detention. However, the Immigration Judge’s bond order states “detained 25 for the majority, if not all, of this time in the United States.” Thus, the Court needs 26 clarification on this point. 27 For the foregoing reasons, the Court cannot find that Petitioner states a claim in his 28 FAP as it stands. Petitioner is permitted to file a second amended petition that must include | the facts supporting his petition (including any missing and conflicting facts that the 2 Court outlines above) and the grounds for relief. Petitioner must file the second amended 3 || petition by April 1, 2026. The Court cautions Petitioner that failure to do so will result in 4 ||this action being dismissed for failure to prosecute. Petitioner’s motion to expedite is 5 || DENIED AS MOOT. 6 IT IS SO ORDERED. 7 || Dated: March 2, 2026 8 a, 9 Honorable James E. Sunmons Jr. 10 United States District Judge 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28