Dempsey v. State of Nevada

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 HENRY WILLIAM DEMPSEY, JR., Case No. 3:21-cv-00302-RCJ-WGC 12 Petitioner, ORDER 13 v. 14 STATE OF NEVADA, 15 Respondent. 16 17 This is a habeas corpus action under 28 U.S.C. § 2254. Petitioner Henry Dempsey has 18 filed an application to proceed in forma pauperis. ECF No. 11. The court finds that Dempsey is 19 unable to pay the filing fee. 20 Dempsey also has filed a petition for a writ of habeas corpus and a motion for 21 appointment of counsel. ECF No. 10, ECF No. 12. The court has reviewed the petition under 22 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The 23 petition itself is 9 pages long, with two grounds. Ground 1 is a claim of a constitutional violation 24 during Dempsey's preliminary hearing. Dempsey pleaded guilty, and that guilty plea bars 25 consideration of ground 1. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Ground 2 26 contains around four claims of ineffective assistance of trial counsel. By themselves, the 27 allegations in ground 2 are too vague to warrant relief. However, following the 9 pages of the 28 petition are 428 pages of unenumerated exhibits. What stands out is that Dempsey was evaluated 1 for competence, and the evaluators concluded that Dempsey had an intelligence quotient between 2 50 and 79. Additionally, in those exhibits are transcripts of Dempsey's evidentiary hearing in his 3 state post-conviction habeas corpus proceedings, and those transcripts provide factual support to 4 Dempsey's claims of ineffective assistance of counsel in ground 2. Under these circumstances, 5 the court finds that appointment of counsel is warranted. 6 IT THEREFORE IS ORDERED that the application to proceed in forma pauperis (ECF 7 No. 11) is GRANTED. Petitioner need not pay the filing fee of five dollars ($5.00). 8 IT FURTHER IS ORDERED that petitioner's motion for appointment of counsel (ECF 9 No. 12) is GRANTED. Counsel will represent the petitioner in all federal proceedings related to 10 this matter, including any appeals or certiorari proceedings, unless allowed to withdraw. 11 IT FURTHER IS ORDERED that the Federal Public Defender is appointed provisionally 12 as counsel for petitioner. The Federal Public Defender will have 30 days from the date of entry of 13 this order either to undertake representation of petitioner or to indicate to the court the office's 14 inability to represent petitioner. If the Federal Public Defender is unable to represent petitioner, 15 then the court will appoint alternate counsel, subject again to establishment of financial eligibility. 16 The court will set a deadline for filing of an amended petition or a motion seeking other relief 17 after counsel has appeared. The court does not signify any implied finding of tolling during any 18 time period established or any extension granted. Petitioner always remains responsible for 19 calculating the limitation period of 28 U.S.C. § 2244(d)(1) and timely presenting claims. The 20 court makes no representation that the petition, any amendments to the petition, and any claims in 21 the petition or amendments are not subject to dismissal as untimely. See Sossa v. Diaz, 729 F.3d 22 1225, 1235 (9th Cir. 2013). 23 IT FURTHER IS ORDERED that the clerk add Aaron Ford, Attorney General for the 24 State of Nevada, as counsel for respondents. 25 IT FURTHER IS ORDERED that respondents' counsel must enter a notice of appearance 26 within 21 days of entry of this order, but no further response will be required from respondents 27 until further order of the court. 28 1 IT FURTHER IS ORDERED that the clerk provide copies of this order and all prior 2 | filings to both the Attorney General and the Federal Public Defender in a manner consistent with 3 | the clerk's current practice, such as regeneration of notices of electronic filing. 4 IT FURTHER IS ORDERED that, notwithstanding Local Rule LR IC 2-2(g), paper copies 5 | of any electronically filed exhibits need not be provided to chambers or to the staff attorney, 6 | unless later directed by the court. 7 DATED: November 22, 2021.

BERT C APNES 9 United Stat¢s District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28