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Kemp v. Baker

United States District Court, D. Nevada

January 14, 2020

CHARLES EUGENE KEMP, Petitioner,
v.
R. BAKER, et al., Respondents.

          ORDER

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Petitioner has submitted an application to proceed in forma pauperis (ECF No. 1), a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a motion for appointment of counsel. The application to proceed in forma pauperis is incomplete, as Petitioner acknowledges. Petitioner will need to file a complete application or pay the filing fee. The Court has nonetheless reviewed the petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The petition appears to be successive without authorization. The petition also appears to be untimely. Petitioner will therefore need to show cause why the Court should not dismiss the action.

         II. BACKGROUND

         Petitioner has attached to the petition a copy of a state district court order denying a motion correct an illegal sentence or to modify a sentence. Additionally, the Court takes judicial notice of an earlier habeas corpus petition that petitioner filed in this District, Kemp v. Del Papa (“Kemp I”), No. 3:99-cv-00102-DWH-RAM, in particular the order denying that petition, ECF No. 41.

         On January 4, 1994, a state-court jury found petitioner guilty of two counts of sexual assault of a child under fourteen and seven counts of lewdness with a child under fourteen. (ECF No. 1-1, at 13.[1]) On February 8, 1994, the state district court entered the judgment of conviction. (Id.) Petitioner appealed. The Nevada Supreme Court dismissed the appeal on March 30, 1995. Kemp I, at ECF No. 41, at 3. Petitioner filed a post-conviction habeas corpus petition in the state district court on February 15, 1996. See Id. The state district court denied the petition on March 1, 1996. See Id. Petitioner appealed. The Nevada Supreme Court dismissed the appeal on December 28, 1998. See id.

         Kemp I commenced on February 26, 1999. On March 25, 2002, this Court denied the petition. See Id. Petitioner appealed. On February 25, 2003, the court of appeals denied a certificate of appealability. See Id. at ECF No. 49.

         On September 8, 2017, Petitioner filed in state district court a motion to alter or amend judgment. The state district court denied the motion. Petitioner appealed. The Nevada Court of Appeals affirmed on August 14, 2018. (ECF No. 1-1 at 14.)

         On November 21, 2018, Petitioner filed in state district court a motion to correct an illegal sentence or to modify a sentence. The state district court denied the motion. Petitioner appealed. The Nevada Court of Appeals affirmed on October 8, 2019. (ECF No. 1-1 at 28.)

         On November 26, 2019, Petitioner dispatched the current federal habeas corpus petition to this Court.

         III. DISCUSSION

         A. PETITIONER'S SENTENCE STRUCTURE

         Petitioner's sentence structure is the issue in this case. Petitioner alleges that, at the sentencing hearing, the judge imposed two sentences of life imprisonment with the possibility of parole for counts I and II, the counts of sexual assault of a child under fourteen years. Those sentences were consecutive. Petitioner then alleges that the judge imposed sentences of six years for counts III through VIII, six counts of lewdness with a child under fourteen. Petitioner alleges that these sentences were consecutive to the sentences for counts I and II but ran concurrently with each other. The judge did not mention count IX, the seventh count of lewdness with a child under fourteen. (ECF No. 1-1 at 3.)

         When Petitioner received the judgment of conviction, he noticed a difference. Counts I and II ran consecutively. Counts III, IV, and V ran consecutively to counts I and II, and they also were to be served consecutively. Counts VI through IX ran concurrently with each other and concurrently with counts III, IV, and V. (ECF No. 1-1 at 4.) In other words, ...


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