Dempsey v. State of Nevada ( 2021 )

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 Petitioner Henry Dempsey has filed an application to proceed in forma pauperis. ECF No. 18 1. Attached to the application is a motion for appointment of counsel. ECF No. 1-1. Based upon 19 the statements in those documents, the court assumes that Dempsey seeks habeas corpus relief 20 under 28 U.S.C. § 2254. However, he first must correct multiple defects. 21 First, Dempsey's application to proceed in forma pauperis is incomplete. He did not 22 include a financial certificate signed by the appropriate officer and a statement of his inmate 23 account, as required by 28 U.S.C. § 1915(a)(2) and Local Rule LSR 1-2. In a letter attached to 24 the application, Dempsey states that the court can obtain that information itself from the Nevada 25 Department of Corrections. He is incorrect. The Nevada Department of Corrections will not 26 provide that information directly to the court; Dempsey must request that information himself. 27 The court notes that Dempsey has not used this court's application form. The court will send him 28 1 a new form. Dempsey will need to complete a new application to proceed in forma pauperis and 2 submit his request for financial information to the appropriate officials. 3 Second, Dempsey has not submitted a petition for a writ of habeas corpus. The court will 4 send him this court's petition form and instructions. He will file a petition if he wants this action 5 to proceed. Additionally, Dempsey will need to name the correct respondent, who is the warden 6 of the prison where he is held. Rule 2(a), Rules Governing Section 2254 Cases in the United 7 States District Courts. 8 Third, the court cannot grant Dempsey's motion for appointment of counsel. In 9 considering a motion for appointment of counsel, "the district court must evaluate the likelihood 10 of success on the merits as well as the ability of the petitioner to articulate his claims pro se in 11 light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th 12 Cir. 1983). By not yet having filed a petition, Dempsey has no likelihood of success on the 13 merits. The court thus denies the motion for appointment of counsel. 14 IT THEREFORE IS ORDERED that the application to proceed in forma pauperis (ECF 15 No. 1) is DENIED without prejudice. 16 IT FURTHER IS ORDERED that petitioner must file another application for leave to 17 proceed in forma pauperis, accompanied by a signed financial certificate and a statement of his 18 inmate account. The clerk of the court shall send petitioner a blank application form for 19 incarcerated litigants. In the alternative, petitioner must make the necessary arrangements to pay 20 the filing fee of five dollars ($5.00), accompanied by a copy of this order. Petitioner will have 45 21 days from the date that this order is entered to comply. Failure to comply will result in the 22 dismissal of this action. 23 IT FURTHER IS ORDERED that the clerk of the court file the motion for appointment of 24 counsel. 25 IT FURTHER IS ORDERED that the motion for appointment of counsel is DENIED. 26 IT FURTHER IS ORDERED that the clerk of the court send petitioner a petition for a 27 writ of habeas corpus pursuant to 28 U.S.C. § 2254 form with instructions. Petitioner will have 28 45 days from the date that this order is entered to file petition for a writ of habeas corpus. Neither 1 | the foregoing deadline nor any extension thereof signifies or will signify any implied finding of a 2 | basis for tolling during the time period established. Petitioner at all times remains responsible for 3 | calculating the running of the federal limitation period under 28 U.S.C. § 2244(d)(1) and timely 4 | asserting claims. Failure to comply with this order will result in the dismissal of this action. 5 IT FURTHER IS ORDERED that petitioner must place the case number, 3:21-cv-00302- 6 || RCJ-WGC, in the space provided on the form, regardless of any statement that the clerk of the 7 | court will supply the case number. 8 IT FURTHER IS ORDERED that the clerk add Aaron Ford, Attorney General for the 9 | State of Nevada, as counsel for respondents. 10 IT FURTHER IS ORDERED that respondents’ counsel must enter a notice of appearance 11 | within 21 days of entry of this order, but no further response will be required from respondents 12 | until further order of the court. 13 IT FURTHER IS ORDERED that the clerk provide copies of this order and all prior 14 | filings to the Attorney General in a manner consistent with the clerk's current practice, such as 15 || regeneration of notices of electronic filing. 16 DATED: August 9, 2021. 17 bed ERT C. JGHHES 18 United States District Judge 19 20 21 22 23 24 25 26 27 28