Beyene v. Wolf

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 SAMUEL BEYENE, Case No. 20-cv-01703-BAS-MSB 12 Petitioner, ORDER SETTING BRIEFING 13 v. SCHEDULE 14 CHAD F. WOLF, et al., 15 Respondents. [16] 17 Mr. Beyene is a national of Eritrea who seeks release from the custody of United 18 States Immigration and Customs Enforcement (ICE) pending removal. He brought the 19 present action under 28 U.S. § 2241, arguing that he is eligible for release under Zadvydas 20 v. Davis, 533 U.S. 678 (2001), because he has been held in the custody of ICE for more 21 than fourteen months after his removal order and his removal is not reasonably foreseeable. 22 (ECF No. 1.) Mr. Beyene also moves for an appointment of counsel. (ECF No. 3.) 23 The Court may appoint counsel for financially eligible persons seeking habeas relief 24 if “the interests of justice so require.” 28 U.S.C. § 3006A(a)(2)(B). “In deciding whether 25 to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood 26 of success on the merits as well as the ability of the petitioner to articulate his claims pro 27 se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 F.2d 28 1 || 952, 954 (9th Cir. 1983). Under the Rules Governing Section 2254 proceedings,! the court 2 appoint counsel “[i]f necessary for effective discovery” or “if an evidentiary hearing 3 |/1s warranted.” 28 U.S.C. § 2254 Rules 6(a), 8(c); Weygandt, 718 F.2d at 954 . 4 The Court finds that further briefing is necessary to determine whether evidentiary 5 issues exist in this case. Accordingly, the Court ORDERS Respondents to file an answer 6 || to Mr. Beyene’s Petition (ECF No. 1) and Motion for Appointment of Counsel (ECF No. 3) 7 ||no later than October 14, 2020. Petitioner may file a reply no later than November 4, 8 ||2020. Further, the Court directs the Clerk of Court to serve a copy of this Order on the 9 || United States Attorney’s Office for the Southern District of California. 10 IT IS SO ORDERED. 12 || DATED: September 22, 2020 ( yi 4 (Hiphanr 6 13 United States District Judge [25] 26 || ———_ | The district court may apply the Rules Governing § 2254 Cases to habeas actions filed under 28 27 ||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.