Tsymbaliuk v. Beckhelm

• Court: District Court, S.D. California
• Decided: September 13, 2022
• Docket: 3:22-cv-01270
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PETRO LIONIDOVICH TSYMBALIUK, Case No.: 22-CV-1270 JLS (JLB)

12 Petitioner, ORDER TO SHOW CAUSE AND 13 v. DENYING PETITIONER’S MOTION TO APPOINT COUNSEL 14 KELLEY BECKHELM,

15 Respondent. (ECF Nos. 1, 2) 16 17 18 Presently before the Court are Petitioner Petro Lionidovich Tsymbaliuk’s Petition 19 for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (“Pet.,” ECF No. 1) and Motion to 20 Appoint Counsel (“Mot.,” ECF No. 2). 21 Petitioner alleges that he has been in the custody of the United States Department of 22 Homeland Security’s Immigration and Customs Enforcement division since April 2022. 23 Pet. at 2, 4.1 A final order of removal was issued on May 20, 2022, according to Petitioner. 24 See id. at 4. His appeal of the final removal order was denied on May 26, 2022. Id. at 2. 25 Petitioner was granted bond in the amount of $15,000 but claims he is unable to pay that 26

27 1 Pin citations to the Petition refer to the CM/ECF page numbers electronically stamped at the top of each 28 1 amount. Id. Petitioner alleges his removal will not occur “in the near future” due to the 2 “ongoing war in Ukraine.” Id. at 3, 6. For these reasons, Petitioner requests the Court to 3 “[o]rder ICE to release” him from custody. Id. at 7. 4 HABEAS PETITION 5 Having reviewed the Petition, the Court finds that summary dismissal of the petition 6 is unwarranted at this time. See Kourteva v. INS, 151 F. Supp. 2d 1126, 1128 (N.D. Cal. 7 2001) (“Summary dismissal is appropriate only where the allegations in the petition are 8 vague or conclusory, palpably incredible, or patently frivolous or false.”) (citing Hendricks 9 v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)). Accordingly, pursuant to 28 U.S.C. § 2243, 10 Respondent is ORDERED TO SHOW CAUSE why the Petition should not be granted 11 by: 12 (1) filing a written return no later than September 26, 2022; 13 (2) filing copies of all documents, order, and transcripts relevant to the Petition; 14 and 15 (3) filing a memorandum of law and fact fully stating Respondent’s position and 16 making a recommendation regarding the need for an evidentiary hearing on the Petition. 17 Petitioner MAY FILE a traverse no later than October 10, 2022. 18 MOTION TO APPOINT COUNSEL 19 The Sixth Amendment’s right to counsel does not apply in habeas actions. Knaubert 20 v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986), cert. denied, 479 U.S. 867 (1986). 21 Appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B) is in the discretion of the 22 district court unless “the circumstances of a particular case indicate that appointed counsel 23 is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 24 (9th Cir. 1986) (citations omitted). For instance, the district court is obligated to appoint 25 counsel if an evidentiary hearing is required. Terrovona v. Kincheloe, 912 F.2d 1176, 26 1181–82 (9th Cir. 1990). Otherwise, a district court is authorized to appoint counsel to 27 represent a financially eligible petitioner whenever “the court determines that the interests 28 of justice so require.” See 18 U.S.C. § 3006A(a)(2)(B). In deciding whether to appoint 1 counsel, the district court “must evaluate the likelihood of success on the merits as well as 2 || the ability of the petitioner to articulate his claims pro se in light of the complexity of the 3 || legal issues involved.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). 4 In support of his motion, Petitioner states only that he “do[es] not know Law and 5 || would benefit [from] having legal representation.” Mot. at 1. The Court presently cannot 6 ||say whether Petitioner has the capacity to sufficiently articulate and prosecute the claims 7 ||he seeks to bring. Moreover, Petitioner has not shown the likelihood of success on the 8 || merits, nor is a likelihood of success evident from the face of the Petition. See generally 9 Finally, at this stage of the proceedings, the Court is not in a position to determine 10 || whether an evidentiary hearing will be required. See Knaubert, 791 F.2d at 728 (holding 11 |/‘[uJnless an evidentiary hearing is required, the decision to appoint counsel is within the 12 discretion of the district court’). In the event circumstances change materially at a later 13 ||stage in these proceedings and provided Petitioner meets the criteria set forth in 18 U.S.C. 14 || § 3006A, the Court shall reconsider the issue. Nothing in this Order is intended to preclude 15 || Petitioner from retaining counsel on his own. 16 In light of the foregoing, the interests of justice do not require appointment of 17 ||counsel at this time. Accordingly, Petitioner’s Motion to Appoint Counsel is DENIED 18 || WITHOUT PREJUDICE. 19 IT IS SO ORDERED. 20 || Dated: September 13, 2022 . tt f Le 21 on. Janis L. Sammartino United States District Judge 23 24 25 26 27 28