Gahano v. Renaud

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 DENGE LEMO GAHANO, Case No. C20-1094-MJP-MLP 11 Petitioner, ORDER 12 v. 13 NATALIE ASHER, et al., 14 Respondents.

16 I. INTRODUCTION 17 Currently pending before the Court is Petitioner’s: (1) Motion for Leave to Exceed Page Limits (dkt. # 21); (2) Motion to Disqualify the Government Attorney “for the Conflict of Interest” (dkt. # 23); and (3) Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondent’s Motion to Dismiss” (dkt. # 24). Furthermore, the Court has reconsidered its earlier denial of Petitioner’s Motion to Appoint Counsel (dkt. # 17).

22 Having considered the Petitioner’s submissions, the governing law, and the balance of the record, Petitioner’s Motion for Leave to Exceed Page Limits (dkt. # 21) is GRANTED, Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” (dkt.

2 # 23) is DENIED, and Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondent’s Motion to Dismiss” (dkt. # 24) is DENIED. In addition, the Court now GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3), as further explained below.

5 II. DISCUSSION 6 A. Motion for Leave to Exceed Page Limits (dkt. # 21) 7 First, Petitioner’s Motion for Leave to Exceed Page Limits identifies that his Response in Opposition to Respondents’ Motion to Dismiss (“Petitioner’s Response”) (dkt. # 22) exceeded page limits in order to fully address the issues raised by Respondents and Respondents’ attached exhibits. (Dkt. # 21 at 1-2.) Petitioner’s Response totals 29 pages. (See dkt. # 22.) Under Local Rule 7(e)(3), briefs in opposition to a motion to dismiss shall not exceed 24-pages. If the Court grants leave to file an over-length motion, the brief in opposition will automatically be allowed an equal number of additional pages. See Local Rule 7(f)(4). In all cases, the reply brief shall not exceed one-half the total length of the brief filed in opposition. Id. 15 Here, the Court finds Petitioner has provided good cause for filing an over-length Response, and therefore, Petitioner’s Motion for Leave to Exceed Page Limits is GRANTED, and Petitioner’s Response is accepted. Consequently, Respondents are permitted to file a reply brief to Petitioner’s Response, with an additional two (2) pages authorized, for a total of 14 pages.

20 B. Motion to Disqualify the Government Attorney (dkt. # 23) 21 Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” seeks to disqualify the Office of the Attorney General and attorney Tim Ramnitz from appearing in this matter. (Dkt. # 23 at 1-2.) Petitioner generally argues that the Office of Attorney General is not a proper respondent in this action and was included due to Petitioner’s ignorance on the issue. (Id. at 2.) Petitioner additionally argues that Mr. Ramnitz has a conflict of interest in his representation of Respondents in this case because of his familiarity with the immigration judge who adjudicated his immigration status in his immigration proceedings below. (Id. at 3-4.)

5 The United States Attorney General’s Office was previously named by Petitioner as a respondent but was terminated from this action by the Clerk’s Office on August 6, 2020, after Petitioner submitted his amended habeas petition. (See dkt # 9.) Furthermore, Petitioner’s allegations concerning Mr. Ramnitz’s conflict of interest because of his familiarity with the immigration judge who handled Petitioner’s case are merely speculative and conclusory.

10 Accordingly, Petitioner’s Motion to Disqualify the Government Attorney is DENIED.

11 C. Motion to Strike (dkt. # 24) 12 Next, Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondents’ Motion to Dismiss” seeks to have the enumerated exhibits stricken as improperly redacted. (Dkt. # 24 at 1-2.) Petitioner generally argues that Respondents failed to claim that the redactions were privileged, failed to provide evidence that that the redactions were done solely on the basis of personal identifiers, and that the “systematic redaction” of the exhibits violates his due process rights in adjusting his status to a lawful permanent resident. (Id. at 2-3; see dkt. # 16, Exs. B, D, E, J.) Petitioner additionally takes issue with various facts specifically asserted in Exhibit A. (Id. at 4; see dkt. # 16, Ex. A.) However, based on the Court’s review of the record and Respondents’ attached exhibits to its Motion to Dismiss, the Court does not find that Respondent’s exhibits were inappropriately redacted in this matter. Accordingly, Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondent’s Motion to Dismiss” is DENIED.

1 D. Motion to Appoint Counsel (dkt. # 3) 2 Finally, the Court issues this Order sua sponte after reconsidering its earlier denial of Petitioner’s Motion to Appoint Counsel. (Dkt. # 17.) The Court finds that the developments outlined below warrant appointment of counsel.

5 “In proceedings in forma pauperis, the district court ‘may request an attorney to represent any person unable to afford counsel’”—a decision within the Court’s sound discretion. Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting 28 U.S.C. § 1915(e)(1)). In considering a motion to appoint counsel, the Court must evaluate both “the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).

12 The Court finds appointment of counsel appropriate. The Court earlier denied Petitioner’s Motion to Appoint Counsel, finding it unlikely that Petitioner would succeed on the merits, that he was capable of articulating his claims pro se, and that his fear of retaliatory removal was unfounded because the Ninth Circuit stayed his removal. (Dkt. # 17 at 2.) However, three developments warrant reconsideration. First, the Ninth Circuit’s stay of removal is no longer pending, and it appears Respondents are seeking Petitioner’s immediate removal. (See dkt. # 27.)

18 Second, Petitioner’s habeas petition raises novel issues related to the application of Ramos v. Lousiana, 590 U.S. ____ (2020) to the validity of his detention which the Ninth Circuit did not address in ruling on his administrative appeal. See Gahano v. Barr, No. 18-72796, Memorandum, Dkt. No. 61-1 (9th Cir. Sept. 10, 2020). Acting pro se, Petitioner faces significant challenges in litigating a novel and complex legal issue without direct guidance from the Ninth Circuit on which he may well succeed. Third, Petitioner pursues a separate civil case before the Court that raises matters collaterally related to his continued detention. See Gahano v. Langford, et al., C20-5451-MJP-MLP (W.D. Wash.).

3 Given these changed circumstances, the Court finds that appointed counsel would considerably assist in the efficient prosecution of this matter and the Court’s resolution of the matter. The Court therefore reconsiders its prior Order (dkt. # 17), GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3), and refers this matter to Pro Bono Panel to represent Petitioner.

7 After that, the Court will issue an Order appointing an attorney, should one be identified.

8 III. CONCLUSION 9 For the foregoing reasons, the Court hereby ORDERS: 10 (1) Petitioner’s Motion for Leave to Exceed Page Limits (dkt. # 21) is GRANTED, and Petitioner’s over-length motion (dkt. # 22) is accepted. Pursuant to Local Rule 7(f)(4), Respondents are permitted to file a reply brief to Petitioner’s Response by January 29, 2021, with an additional two (2) pages authorized, for a total of 14 pages. The Clerk is directed to re-note the Government’s return memorandum (dkt. # 16) for January 29, 2021; 15 (2) Petitioner’s Motion to Disqualify the Government Attorney “for the Conflict of Interest” (dkt. # 23) is DENIED; 17 (3) Petitioner’s Motion to Strike Respondents’ Exhibits “B, D, E, and J attached to Respondents’ Motion to Dismiss” (dkt. # 24) is DENIED; 19 (4) The Court reconsiders its previous Order Denying Petitioner’s Motion to Appoint Counsel (dkt. # 17) and now GRANTS Petitioner’s Motion to Appoint Counsel (dkt. # 3). This matter is referred to the Pro Bono Panel to represent Petitioner. After that, the Court will issue an Order appointing an attorney, should one be identified; 1 (5) Respondents are directed to respond to Petitioner’s Motion for Stay of Removal (dkt. # 25) on or before January 29, 2021; and 3 (6) The Clerk is directed to send copies of this Order to the parties and to the Honorable Marsha J. Pechman.

5 Dated this 7th day of January, 2021.

A 7 MICHELLE L. PETERSON United States Magistrate Judge