Opinion
Case # 20-CV-6362-FPG
2021-01-25
Harvel THOMAS, Petitioner, v. Jeffrey SEARLS, Respondent.
Daniel E. Jackson, Corfu, NY, for Petitioner. Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, for Respondent.
Daniel E. Jackson, Corfu, NY, for Petitioner.
Adam A. Khalil, U.S. Attorney's Office, Rochester, NY, for Respondent.
DECISION AND ORDER
FRANK P. GERACI, JR., Chief Judge
INTRODUCTION
This a habeas corpus proceeding pursuant to 28 U.S.C. § 2241 instituted by Petitioner Harvel Thomas while he was detained in the custody of the Department of Homeland Security ("DHS"), Immigrations and Customs Enforcement ("ICE"). On January 4, 2021, the Court issued a decision and order directing Respondent to release Thomas from detention under appropriate conditions of supervision on or before January 14, 2021. ECF No. 14. Thomas has filed a motion for enforcement, ECF No. 27, of the January 4, 2021 order, as well as a motion for appointment of counsel. ECF No. 29. For the reasons discussed below, the enforcement motion, ECF No. 27, is DENIED AS MOOT, and the motion to appoint counsel, ECF No. 29, is GRANTED.
BACKGROUND
On September 28, 2020, the Court issued a decision and order, ECF No. 14, conditionally granting a writ of habeas corpus and directing that Respondent afford Thomas a constitutionally-adequate bond hearing. On October 6, 2020, an immigration judge ("IJ") conducted a bond hearing and denied release on the basis that Thomas was a flight risk, though not a danger to the community. Thomas then moved for enforcement of the Court's bond order, arguing that the IJ committed various procedural and substantive errors at the bond hearing. ECF No. 17.
On January 4, 2021, the Court issued a decision and order, ECF No. 26, finding that the bond hearing did not comply with the conditions set by the Court and that the appropriate remedy was for Thomas to be released from detention. Accordingly, the Court ordered that, "[a]s soon as is practicable, but in no event later than ten (10) days from the date of this order, Respondent shall release Thomas from custody under reasonable and appropriate conditions of supervision to be determined by the Department of Homeland Security/Immigrations and Customs Enforcement." ECF No. 26 at 18 (emphasis added). On January 10, 2021, Daniel E. Jackson, Esq., who is currently representing Thomas pro bono , filed a motion seeking enforcement, ECF No. 27, of the Court's January 4, 2021 order. See ECF No. 27. Thomas informed Jackson that ICE, on January 6, 2021, determined not to release him unless he paid a bond of $5,000. See ECF No. 27, Declaration ¶ 2 (citing ECF No. 27-1 (ICE Form I-286)). Jackson argued the Court's unambiguous order allowed ICE to supervise Thomas in a reasonable manner after release, but did not allow ICE to impose a precondition of release in the form of a $5,000 bond. Id. ¶ 5; see also id. , Memorandum of Law at 2. Jackson further contended that even if there were an ambiguity in the Court's order, continued detention due to Thomas's indigence would violate the due process clause of the Fifth Amendment. Id. at 2–3.
The Court expedited briefing on Thomas's enforcement motion and directed Respondent to respond no later than January 12, 2021, at 5:00 p.m. ECF No. 28. On January 11, 2021, Thomas filed a motion to appoint Jackson as counsel under the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. ECF No. 29; see also ECF No. 36.
Respondent timely filed a response to the enforcement motion. ECF No. 32. Respondent characterized the $5,000 bond as an appropriate condition of supervision and stated that, in any event, Thomas would be released on or before January 14, 2021, the due-date for compliance with the Court's previous order, regardless of whether he can pay the $5,000 bond. According to Respondent, ICE determined that the "supervisory tool of financial bond" "was the best means of ensuring Thomas's appearance at future immigration hearings and his removal from the United States." ECF No. 32-1, Declaration of Deportation Officer Peter Sukmanowski ¶¶ 4-6.
Respondent's interpretation—that the $5,000 bond is not a condition of release, but rather is an appropriate condition of supervision meant to ensure Thomas's future appearance in immigration court—is based on Quituizaca v. Barr , No. 20-CV-403, Dkt. No. 32 at 18 (W.D.N.Y. Jan. 5, 2021) (Vilardo, D.J.), which is attached to the Response as Exhibit B, ECF No. 32-2. Similar to the Court's January 4, 2021 order, in Quituizaca Judge Vilardo directed the release of an immigration detainee "under reasonable and appropriate conditions of supervision" following an IJ's failure to provide the constitutionally adequate bond hearing ordered by the district court. In a footnote regarding the phrase "conditions of supervision," Judge Vilardo cautioned that "[a]ny inability to pay should not be used as an excuse to deprive [the petitioner] of his fundamental right to liberty." Id. at 18 n.9.
Based on the Quituizaca order, "ICE understood that bond was an acceptable condition of supervision, but that failure to pay bond could not be justification for continued detention." ECF No. 32-1 ¶ 9. According to Respondent, ICE advised Thomas he would be "released immediately upon submitting $5,000 bond as a condition of supervision—which his family advised it could post—but, in accordance with this Court's Order, he will undeniably be released no later than January 14, 2021." ECF No. 32 at 3. Respondent did not address the motion to appoint counsel.
Thomas filed a reply on January 12, 2021, ECF No. 33, stating that in view of Respondent's representations that he will be released on or before January 14, 2021, regardless of whether he posts a bond, the "majority of the instant case is now arguably moot[.]" ECF No. 33 at 2. On January 14, 2021, Respondent filed a letter with the Court, stating that Thomas had been released from ICE custody on his own recognizance that day, without posting any bond. ECF No. 34; see also ECF No. 34-1 (Release Order).
DISCUSSION
I. Motion to Enforce
A federal court must ensure that a "live" case or controversy exists at all stages of a proceeding to support the court's subject matter jurisdiction. Preiser v. Hewkirk , 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). When a case becomes moot, the federal court loses subject matter jurisdiction over the action. Fox v. Bd. of Trs. of State Univ. of N.Y. , 42 F.3d 135, 140 (2d Cir. 1994). "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trigona v. Shiff , 702 F.2d 380, 386 (2d Cir. 1983).
Respondent has fully complied with the Court's January 4, 2021 order by releasing Thomas from detention on January 14, 2021. As the "relief sought" in the enforcement motion is "no longer needed." Martin-Trigona , 702 F.2d at 386, the Court agrees that it is moot and should be dismissed for lack of subject matter jurisdiction. See , e.g. , Altman v. Bedford Cent. Sch. Dist. , 245 F.3d 49, 70 (2d Cir. 2001) ("If a claim has become moot prior to the entry of final judgment, the district court generally should dismiss the claim for lack of jurisdiction.").
In his reply, Thomas notes that "whether or not the imposition of a monetary bond is a condition of release or a condition of supervision remains unresolved within this district," ECF No. 33 at 2, and urges that this question falls within the "capable of repetition, yet evading review" exception to the mootness doctrine. Id. (citation omitted). Respondent does not argue that there is a mootness issue but states that guidance from the Court would be welcome as to whether ICE's understanding is correct. ECF No. 32 at 3 n.1.
There is a "judicially created exception for cases ‘capable of repetition, yet evading review.’ " Nat'l Org. for Marriage, Inc. v. Walsh , 714 F.3d 682, 692 (2d Cir. 2013) (quoting FEC v. Wisc. Right to Life, Inc. , 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) ). However, it "applies only in exceptional situations," "where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet , 260 F.3d 114, 119 (2d Cir. 2001) (emphasis added) (quoting Spencer v. Kemna , 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ).
Thomas admits the question at issue is "not strictly relevant to the question of mootness in the instant case," ECF No. 33 at 2, but argues that "its resolution would provide the Respondent and other petitioners clarity in future proceedings[.]" Id. (emphasis supplied). Thomas thus has not established the second circumstance necessary for applying the "capable of repetition" exception—that he reasonably expects to be subject to the same action again.
Courts are without power to "decide questions that cannot affect the rights of litigants in the case before them[.]" Chafin v. Chafin , 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (internal quotation marks omitted). Since, as Thomas concedes, resolution of the question would not affect his rights or Respondent's rights in this case, resolution would be inappropriate. See Camreta v. Greene , 563 U.S. 692, 717, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (stating that a court is "not permitted to render an advisory opinion").
II. Motion to Appoint Counsel
The CJA provides in relevant part that "[w]henever the United States magistrate or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who ... is seeking relief under section 2241, 2254, or 2255 of title 28." 18 U.S.C. § 3006A(a)(2)(B). Thus, the three relevant factors under § 3006A(2)(B) are: (1) the applicant has brought an action for relief under one of the federal habeas statutes, 28 U.S.C. §§ 2241, 2254, or 2255 ; (2) the applicant is financially eligible; and (3) the interests of justice require appointment of counsel. Id.
A. Section 2241 Petitions and the CJA
Courts in this Circuit consistently have declined to limit appointment of CJA counsel to criminal matters, finding that the plain language of the CJA states that it applies to petitions for a writ of habeas corpus under Section 2241. See , e.g. , Saldina v. Thornburgh , 775 F. Supp. 507, 508 (D. Conn. 1991) ("The clear construction of this statute is that any indigent person seeking habeas corpus relief under the provisions of Title 28 is entitled to CJA representation when the interest of justice so requires. This statute is not ambiguous, vague, or confusing. Petitioners[, detained excludable aliens,] are seeking relief under 28 U.S.C. § 2241 and fall within the plain meaning of the language of this statute. Section 2241 ... has never been viewed as available only to challenge criminal convictions."); accord Lawrence v. I.N.S. , No. 00-CV-2154, 2000 WL 1864040, at *3 (S.D.N.Y. Dec. 21, 2000).
Courts also have found no conflict between § 3006A and a provision of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1362, which provides that
[i]n any removal proceedings before an immigration judge and in any appeal proceedings before the Attorney General from any such removal proceedings, the person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel , authorized to practice in such proceedings, as he shall choose.
8 U.S.C. § 1362 (emphasis supplied). As the court noted in Lawrence , the only types of proceedings referenced in Section 1362 are those before an IJ or the Attorney General; the habeas petitions in those cases—just like the habeas petition here—is not such a proceeding. See Lawrence , 2000 WL 1864040, at *5. And, Section 3006A does not entitle the petitioner to appointed counsel. Id. Rather, it confers discretionary authority which "will be used infrequently," given that Section 2241 petitions in immigration cases "are limited to purely legal issues involving violations of the Constitution, laws or treatises of the United States[,]" id. (citations omitted), and courts do not appoint CJA counsel "without consideration of the merits of the case, the complexity of the legal issues raised, and the ability of the petitioner to investigate and present the case." Saldina , 775 F. Supp. at 511–12. Because appointment of counsel in these cases is discretionary, "there is no cause for speculation as to the calamitous [fiscal] results which might occur if all aliens were to receive CJA counsel." Saldina , 775 F. Supp. at 512 ; accord Lawrence , 2000 WL 1864040, at *5.
B. Financial Eligibility
The second factor is easily met. Thomas has submitted a financial affidavit that establishes his indigence at the time the enforcement motion was filed. See ECF No. 36-1. Such a showing demonstrates that he is "financially unable to obtain counsel," 18 U.S.C. § 3006(A)(a). See , e.g. , United States v. Martin-Trigona , 684 F.2d 485, 490 (7th Cir. 1982) ("One need not be indigent, however, to qualify for appointed counsel; one need only be ‘financially unable to obtain counsel.’ " (quoting United States v. Kelly , 467 F.2d 262, 266 (7th Cir. 1972) )). Although Thomas has since been released from custody, he has conveyed to Jackson that his financial status is essentially the same and that he is still unable to afford representation. See ECF No. 36.
C. Interests of Justice
Third and finally, Thomas has shown that the interests of justice warrant appointment of CJA counsel. "[C]ourts in this circuit have looked to such factors as the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case." Gonzalez v. New York , No. 05-CV-9028, 2006 WL 728482, at *1 (S.D.N.Y. Mar. 21, 2006) (internal quotation marks omitted); see also Reese v. Fulcomer , 946 F.2d 247, 263-64 (3d Cir. 1991) ("[T]he district court must first decide if the petitioner has presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and the court." (citing Battle v. Armontrout , 902 F.2d 701, 702 (8th Cir. 1990) )).
Thomas clearly presented a "nonfrivolous claim" in the enforcement motion. As the Court's order referred only to "conditions of supervision," not "conditions of release," it is understandable that Thomas understood his conversations with ICE to mean that his release from detention was being conditioned on the posting of a monetary bond, which he informed ICE that he had no ability to pay. As Jackson argued in the enforcement motion, continued detention based on Thomas's indigence would run afoul of the due process clause. ECF No. 27, Memorandum of Law, at 2–3 (citing Hernandez v. Sessions , 872 F.3d 976, 991–92 (9th Cir. 2017) ("[W]hen the government detains someone based on his or her failure to satisfy a financial obligation, the government cannot reasonably determine if the detention is advancing its purported governmental purpose unless it first considers the individual's financial circumstances and alternative ways of accomplishing its purpose.")). Furthermore, Thomas's ability to present his claims was hampered by his pro se status and his detention. Jackson explained that, at the time the enforcement motion was filed, Thomas had not yet received the Court's January 4, 2021 order. ECF No. 29 at 9. Thus, the enforcement motion would not have been filed without Jackson's involvement in this matter. All of the factors relevant to the interests-of-justice analysis lead the Court to conclude that appointment of CJA counsel is an appropriate exercise of discretion in this case.
D. Retroactivity of Appointment
Jackson indicates that he first undertook work on this matter on January 8, 2021. As he notes in his letter, ECF No. 36, this District's CJA Plan provides that the plan may cover work performed prior to appointment. See W.D.N.Y. CJA Plan § V(D), pp. 7–8 ("Appointment of counsel may be made retroactive to include representation provided prior to appointment."). Accordingly, the Court will order that Jackson's appointment under the CJA be retroactive to January 8, 2021. CONCLUSION
Available at https://www.nywd.uscourts.gov/standing-orders-and-district-plans/03-14-19 Revised CJA Plan Final.pdf (last accessed Jan. 22, 2021).
For the foregoing reasons, Harvel Thomas's motion for enforcement, ECF No. 27, is DISMISSED AS MOOT; and his motion to appoint counsel under the CJA, ECF No. 29, is GRANTED. Accordingly, it is hereby ORDERED that Daniel E. Jackson, Esq. is appointed nunc pro tunc as of January 8, 2021, under the CJA to represent Thomas in connection with his efforts to seek enforcement of the Court's January 4, 2021 order.
IT IS SO ORDERED.