Cesar Paz Negrete v. Secretary of Homeland Security et al, No. 8:2016cv00112 - Document 26 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER: (1) CONSOLIDATING CASES; AND (2) APPOINTING COUNSEL by Magistrate Judge Suzanne H. Segal. The Federal Public Defender for the Central District of California is hereby appointed as counsel for Petitioner in this consolid ated matter, for the purpose of addressing the mootness contention as well as the underlying merits. The Federal Public Defender is directed to immediately make arrangements with the court clerk to review the files and secure copies of whatever is n ecessary in order to properly consult with and advise Petitioner regarding the viability of his claims and his legal options at this juncture. The attorney assigned to this matter shall enter a Notice of Appearance as soon as possible, but no later than ten days from the date of this Order. The Court sets a telephonic status conference for March 13, 2018 at 11:00 a.m. A separate order will issue with call-in instructions. (See document for further deatils). (mr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CESAR PAZ NEGRETE, 11 Case Nos. SACV 16-0003 GW (SS) SACV 16-0112 GW (SS) Petitioner, 12 v. 13 MEMORANDUM DECISION AND ORDER: SECRETARY OF HOMELAND SECURITY, et al., 14 15 Respondent. (1) CONSOLIDATING CASES; AND (2) APPOINTING COUNSEL 16 17 18 On December 28, 2015, Cesar Paz Negrete (“Petitioner”), then 19 a federal immigration detainee proceeding pro se, constructively 20 filed two Petitions for Writ of Habeas Corpus pursuant to 28 U.S.C. 21 § 2241. 22 16-0003 GW (SS) (the “003 Petition”), and Paz-Negrete v. Sec. 23 Homeland 24 Petition”).1 25 26 27 28 (See Paz-Negrete v. Sec. Homeland Security, C.D. Cal. SACV Security, Both C.D. Cal. SACV 16-0112 Petitions name the GW (SS) “Secretary (the of “112 Homeland Under the “mailbox rule,” a pro se prisoner’s pleading is deemed filed on the date the prisoner delivers it to prison authorities for mailing to the court clerk, not the date on which the pleading may be received by the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Absent other proof, the Ninth Circuit deems a habeas “petition constructively ‘filed’ on the date it is signed.” 1 1 Security” and “Immigration and Customs Enforcement” as joint 2 respondents. 3 No. 1 at 1-2). 4 2014 conviction for assault with a deadly weapon other than a 5 firearm (Cal. Penal Code § 245(a)(1)), for which Petitioner was 6 sentenced, following a jury trial, to a three-year term in state 7 prison. 8 at 2). (003 Petition, Dkt. No. 1 at 1-2; 112 Petition, Dkt. In addition, both Petitions implicate Petitioner’s (003 Petition, Dkt. No. 1 at 2; 112 Petition, Dkt. No. 1 9 10 The 003 Petition ostensibly challenges Petitioner’s 2014 11 conviction. In the final version of Petitioner’s claims, the 003 12 Petition raises four grounds for federal habeas relief, based on: 13 (1) the trial court’s failure to give a requested jury instruction; 14 (2) 15 (3) Petitioner’s unknowing waiver of the right to testify; and (4) 16 prosecutorial misconduct during closing argument. 17 Dkt. No. 19, at 5-6). 18 federal habeas relief, alleging that DHS improperly obtained an 19 immigration detainer based on Petitioner’s 2014 conviction, even 20 though the conviction was still under appeal and “[t]he possibility ineffective assistance of trial and appellate counsel; (003 Petition, The 112 Petition raises one ground for 21 22 23 24 25 26 27 28 Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see also Butler v. Long, 752 F.3d 1177, 1178 n.1 (9th Cir. 2014) (“We assume that [petitioner] turned his petition over to prison authorities on the same day he signed it and apply the mailbox rule.”). Although the Court received the Petitions in the 003 Petition and the 112 Petition three weeks apart, both were executed on December 28, 2015. Because neither Petition attached a proof of service, the Court adopts the date the Petitions were signed as their constructive filing date. 2 1 of proving [Petitioner’s] innocence still exists.”2 (112 Petition, 2 Dkt. No. 1 at 4). 3 Petition and the 112 Petition, Petitioner was deported to Mexico 4 on May 23, 2017. 5 Dkt. No. 19 at 2, 5). 6 a private residence in Santa Ana, California, the return address 7 on the envelope containing his most recent communication with the 8 Court appears to be a private residence in Tijuana, Mexico. 9 Petition, Dkt. No. 30 at 2). According to evidence submitted in both the 003 (003 Petition, Dkt. No. 33 at 2, 5; 112 Petition, While Petitioner’s address of record remains (003 Although the Court entered judgment 10 in the 112 Petition in November 2017 based on Petitioner’s apparent 11 failure to prosecute, (id., Dkt. No. 24), on February 6, 2018, the 12 Court vacated that judgment and re-opened the case. 13 No. 25). (Id., Dkt. 14 15 Pursuant to Federal Rule of Civil Procedure 42, “[i]f actions 16 before the court involve a common question of law or fact, the 17 court may . . . consolidate the actions.” Fed. R. Civ. P. 42(a)(2). 18 “A district court generally has ‘broad’ discretion to consolidate 19 actions,” which is reviewed under an abuse of discretion standard. 20 Pierce v. Cnty. of Orange, 526 F.3d 1190, 1203 (9th Cir. 2008); 21 see also Investors Research Co. v. U.S. Dist. Court for Cent. Dist. 22 of California, 877 F.2d 777, 777 (9th Cir. 1989) (broad discretion 23 to consolidate actions pending in the same district). 24 25 26 27 28 The Court notes that its initial order dated February 22, 2016 advised Respondent that “[w]here the Petitioner challenges a final order of removal, Respondent SHALL NOT remove Petitioner prior to the resolution of this action without providing reasonable notice to the Court.” (Dkt. No. 3 at 2, ¶ 3). A review of the docket indicates that Respondent failed to comply with this aspect of the Court’s Order. 2 3 1 Although Petitioner split his claims into the 003 and 112 2 Petitions, the issues they raise are intertwined. 3 and 112 Petitions together, Petitioner appears to contend that he 4 was improperly detained because the purported justification for 5 his detention was an invalid underlying conviction. 6 Circuit 7 underlying conviction is never moot simply because, subsequent to 8 its 9 Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003) (quoting 10 Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) (finding that 11 as long as there is a possibility of collateral consequences from 12 a conviction, the release of a prisoner does not moot his habeas 13 petition)). 14 petitioner’s deportation does not automatically render his claim 15 moot. Abdala v. I.N.S., 488 F.3d 1061, 1064 (9th Cir. 2007) (citing 16 Chacon and Zegarra-Gomez v. INS, 314 F.3d 1124, 1126-27 (9th Cir. 17 2003)). 18 avoid unnecessary costs or delay, the Court ORDERS that these 19 actions are consolidated as one action under case number SACV 16- 20 0003 GW (SS). instructs filing, the that “‘[a] petitioner habeas has been petition released Reading the 003 The Ninth challenging from the custody.’” Furthermore, the Ninth Circuit has also found that a Accordingly, in the interest of judicial economy and to 21 22 Furthermore, based upon its review of the Petitions, the Court 23 finds that Petitioner’s claims raise complex issues of law and fact 24 that would be difficult to litigate pro se in light of Petitioner’s 25 removal to Mexico while his claims were pending. 26 Court concludes that the interests of justice would be served by 27 the appointment of counsel here. 28 4 Accordingly, the The Court has the inherent 1 authority under 18 U.S.C. § 3006A to appoint counsel in these 2 circumstances. 3 4 Accordingly, the Federal Public Defender for the Central 5 District of California 6 Petitioner in 7 addressing the 8 merits. 9 make arrangements with the court clerk to review the files and 10 secure copies of whatever is necessary in order to properly consult 11 with and advise Petitioner regarding the viability of his claims 12 and his legal options at this juncture. 13 this matter shall enter a Notice of Appearance as soon as possible, 14 but no later than ten days from the date of this Order. this is hereby consolidated mootness appointed matter, contention as for well as as counsel the purpose the for of underlying The Federal Public Defender is directed to immediately The attorney assigned to 15 16 The Court sets a telephonic status conference for March 13, 17 2018 at 11:00 a.m. 18 A separate order will issue with call-in instructions. 19 20 IT IS SO ORDERED. 21 22 DATED: February 27, 2018 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 5
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