USA Statutes : nevada
Title : Title 03 - REMEDIES; SPECIAL ACTIONS AND PROCEEDINGS
Chapter : CHAPTER 34 - WRITS: CERTIORARI; MANDAMUS; PROHIBITION; HABEAS CORPUS
The
writ of certiorari may be denominated the writ of review.
[1911 CPA § 741; RL § 5683; NCL § 9230]
1. This writ may be granted, on application, by the Supreme Court,
a district court, or a judge of the district court. When the writ is
issued by the district court or a judge of the district court it shall be
made returnable before the district court.
2. The writ shall be granted in all cases when an inferior
tribunal, board or officer, exercising judicial functions, has exceeded
the jurisdiction of such tribunal, board or officer and there is no
appeal, nor, in the judgment of the court, any plain, speedy and adequate
remedy.
3. In any case prosecuted for the violation of a statute or
municipal ordinance wherein an appeal has been taken from a Justice Court
or from a municipal court, and wherein the district court has passed upon
the constitutionality or validity of such statute or ordinance, the writ
shall be granted by the Supreme Court upon application of the State or
municipality or defendant, for the purpose of reviewing the
constitutionality or validity of such statute or ordinance, but in no
case shall the defendant be tried again for the same offense.
[1911 CPA § 742; A 1939, 114; 1931 NCL § 9231]
The application shall be made on
affidavit by the party beneficially interested, and the court or judge to
whom the application is made may require a notice of the application to
be given to the adverse party, or may grant an order to show cause why it
should not be allowed, or may grant the writ without further notice.
[1911 CPA § 743; RL § 5685; NCL § 9232]
The writ may be directed to the inferior tribunal, board or
officer, or to any other person having the custody of the record or
proceedings to be certified. When directed to a tribunal, the clerk, if
there be one, shall return the writ with the transcript required.
[1911 CPA § 744; RL § 5686; NCL § 9233]
The
writ of certiorari may, in the discretion of the court or judge issuing
the writ, be made returnable and a hearing thereon be had at any time.
[Part 1911 CPA § 769; RL § 5711; NCL § 9258]
The writ of review shall command the
party to whom it is directed to certify fully to the court before which
the writ is returnable, at a specified time and place, and annex to the
writ a transcript of the record and proceeding, describing or referring
to them with convenient certainty, that the same may be reviewed by the
court, and requiring the party, in the meantime, to desist from further
proceedings in the matter to be reviewed.
[1911 CPA § 745; RL § 5687; NCL § 9234]
If a
stay of proceedings be not intended the words requiring the stay shall be
omitted from the writ. These words may be inserted or omitted in the
sound discretion of the court or the judge issuing the writ, but if
omitted, the power of the inferior court or officer shall not be
suspended nor the proceedings stayed.
[1911 CPA § 746; RL § 5688; NCL § 9235]
The writ shall be served in the same
manner as a summons in a civil action, except when otherwise expressly
directed by the court or judge issuing the writ.
[1911 CPA § 747; RL § 5689; NCL § 9236]
The review upon this writ shall not
be extended further than to determine whether the inferior tribunal,
board or officer has regularly pursued the authority of such tribunal,
board or officer.
[1911 CPA § 748; RL § 5690; NCL § 9237]
If the return to the writ be defective, the court may order a further
return to be made. When a full return has been made, the court shall
proceed to hear the parties, or such of them as may attend for that
purpose, and may thereupon give judgment, either affirming or annulling
or modifying the proceedings below.
[1911 CPA § 749; RL § 5691; NCL § 9238]
A copy of the judgment, signed by the clerk,
shall be transmitted to the inferior tribunal, board or officer having
the custody of the record or proceeding certified up.
[1911 CPA § 750; RL § 5692; NCL § 9239]
A copy of the
judgment, signed by the clerk, entered upon or attached to the writ and
return, shall constitute the judgment roll. If the proceedings be had in
any other than the Supreme Court, an appeal may be taken from the
judgment in the same manner and upon the same terms as from a judgment in
a civil action.
[1911 CPA § 751; RL § 5693; NCL § 9240]
Except as
otherwise provided in NRS 34.010 to
34.120 , inclusive, the provisions of
NRS and Nevada Rules of Civil Procedure relative to civil actions in the
district court are applicable to and constitute the rules of practice in
the proceedings mentioned in NRS 34.010
to 34.120 , inclusive.
[Part 1911 CPA § 770; RL § 5712; NCL § 9259]
The provisions of the Nevada Rules of Civil Procedure and
Nevada Rules of Appellate Procedure relative to new trials in, and
appeals from, the district court, except so far as they are inconsistent
with the provisions of NRS 34.010 to
34.120 , inclusive, apply to the
proceedings mentioned in NRS 34.010 to
34.120 , inclusive.
[Part 1911 CPA § 771; RL § 5713; NCL § 9260]
MANDAMUS
The writ
of mandamus may be denominated the writ of mandate.
[1911 CPA § 752; RL § 5694; NCL § 9241]
The writ may be issued by the Supreme
Court, a district court or a judge of the district court, to compel the
performance of an act which the law especially enjoins as a duty
resulting from an office, trust or station; or to compel the admission of
a party to the use and enjoyment of a right or office to which he is
entitled and from which he is unlawfully precluded by such inferior
tribunal, corporation, board or person. When issued by a district court
or a judge of the district court it shall be made returnable before the
district court.
[1911 CPA § 753; RL § 5695; NCL § 9242]
This writ shall be issued in all cases where there is not a
plain, speedy and adequate remedy in the ordinary course of law. It shall
be issued upon affidavit, on the application of the party beneficially
interested.
[1911 CPA § 754; RL § 5696; NCL § 9243]
Except as
otherwise provided in NRS 34.185 , the
writ of mandamus may, in the discretion of the court or judge issuing the
writ, be made returnable and a hearing thereon be had at any time.
[Part 1911 CPA § 769; RL § 5711; NCL § 9258]—(NRS A 1999, 176
)
1. If the applicant is alleging an unconstitutional prior
restraint of his rights pursuant to the First Amendment to the
Constitution of the United States or Section 9 of Article 1 of the
Constitution of the State of Nevada, the applicant shall insert the words
“First Amendment Petition” in the caption of the application for the writ
in at least 10-point type.
2. The court shall render judgment on an application for a writ
described in subsection 1 not later than 30 days after the date on which
the application for the writ is filed.
(Added to NRS by 1999, 176 )
1. The writ shall be either alternative or peremptory.
2. The alternative writ shall state generally the allegation
against the party to whom it is directed, and command such party,
immediately after the receipt of the writ, or at some other specified
time, to do the act required to be performed, or to show cause before the
court, at a specified time and place, why he has not done so.
3. The peremptory writ shall be in a form similar to the
alternative writ, except that the words requiring the party to show cause
why he has not done as commanded shall be omitted, and a return day shall
be inserted.
[1911 CPA § 755; RL § 5697; NCL § 9244]
When the application to the court or district judge is made without
notice to the adverse party, and the writ is allowed, the alternative
shall be first issued; but if the application be upon due notice, and the
writ is allowed, the peremptory may be issued in the first instance. The
notice of the application, when given, shall be at least 10 days. The
writ shall not be granted by default. The case shall be heard by the
court, whether the adverse party appear or not.
[1911 CPA § 756; RL § 5698; NCL § 9245]
On
the return day of the alternative, or the day on which the application of
the writ is noticed, or such further day as the court or district judge
issuing the writ may allow, the party on whom the writ or notice shall
have been served may show cause by answer under oath, made in the same
manner as an answer to a complaint in a civil action.
[1911 CPA § 757; RL § 5699; NCL § 9246]
If an answer is made, which raises a question as to
matter of fact essential to the determination of the motion, and
affecting the substantial rights of the parties, and upon the supposed
truth of the allegation of which the application for a writ is based, the
court may, in its discretion, order the question to be tried before a
jury, and postpone the argument until such trial can be had and the
verdict certified to the court. The question to be tried shall be
distinctly stated in the order for trial, and the county shall be
designated in which the same shall be had. The order may also direct the
jury to assess any damages which the applicant may have sustained, in
case they find for him.
[1911 CPA § 758; RL § 5700; NCL § 9247]
On the trial, the applicant shall not be
precluded by the answer from any valid objection to its sufficiency, and
may countervail it by proof either in direct denial or by way of
avoidance.
[1911 CPA § 759; RL § 5701; NCL § 9248]
If either party is
dissatisfied with the verdict of the jury, he may, without a statement in
support of the motion, move for a new trial upon the minutes of the court
for any of the causes or grounds for new trials provided in Nevada Rules
of Civil Procedure. The motion for a new trial may, upon reasonable
notice, be brought on before the judge of the court in which the cause
was tried. If a new trial is granted, the jury shall, within 5 days
thereafter, unless the parties agree on a longer time, be summoned to try
the issue. After a second verdict in favor of the same party, a new trial
shall not be had.
[1911 CPA § 760; RL § 5702; NCL § 9249]
If no
notice for a new trial be given or, if given, be denied, the clerk,
within 5 days after the rendition of the verdict, or denial of the
motion, shall transmit to the court in which the application for the writ
is pending, a certified copy of the verdict attached to the order of
trial; after which either party may bring on the argument of the
application, upon reasonable notice to the adverse party.
[1911 CPA § 761; RL § 5703; NCL § 9250]
If no answer be made, the case shall be heard on the papers of
the applicant. If an answer be made which does not raise a question such
as is mentioned in NRS 34.220 , but only
such matters as may be explained or avoided by a reply, the court may, in
its discretion, grant time for replying. If the answer, or answer and
reply, raise only questions of law or put in issue immaterial statements
not affecting the substantial rights of the parties, the court shall
proceed to hear or fix a day for hearing the argument of the case.
[1911 CPA § 762; RL § 5704; NCL § 9251]
If judgment be given for the applicant, he shall
recover the damages which he shall have sustained as found by the jury,
or as may be determined by the court or master, upon a reference to be
ordered, together with costs; and for such damages and costs an execution
may issue, and a peremptory mandate shall also be awarded without delay.
[1911 CPA § 763; RL § 5705; NCL § 9252]
1. The writ shall be served in the same manner as a summons in a
civil action, except when otherwise expressly directed by the order of
the court or district judge issuing the writ.
2. Service upon a majority of the members of any board or body is
service upon the board or body, whether at the time of the service the
board or body was in session or not.
[1911 CPA § 764; RL § 5706; NCL § 9253] + [Part 1911 CPA § 765; RL
§ 5707; NCL § 9254]
1. When a peremptory mandate has been issued and directed to any
inferior tribunal, corporation, board or person, if it appear to the
court that any member of such tribunal, corporation or board, or such
person, upon whom the writ has been personally served, has, without just
excuse, refused or neglected to obey the same, the court may, after
notice and hearing, adjudge the party guilty of contempt and upon motion
impose a fine not exceeding $1,000.
2. In case of persistence in a refusal of obedience, the court may
order the party to be imprisoned for a period not exceeding 3 months and
may make any orders necessary and proper for the complete enforcement of
the writ.
3. If a fine be imposed upon a judge or officer who draws a salary
from the State or county, a certified copy of the order shall be
forwarded to the State Controller or county treasurer, as the case may
be, and the amount thereof may be retained from the salary of such judge
or officer. Such judge or officer for his willful disobedience shall also
be deemed guilty of a misdemeanor in office.
[Part 1911 CPA § 765; RL § 5707; NCL § 9254]
Except as
otherwise provided in NRS 34.150 to
34.290 , inclusive, the provisions of
NRS and Nevada Rules of Civil Procedure relative to civil actions in the
district court are applicable to and constitute the rules of practice in
the proceedings mentioned in NRS 34.150
to 34.290 , inclusive.
[1911 CPA § 770; RL § 5712; NCL § 9259]—(NRS A 1999, 176 )
The provisions of the Nevada Rules of Civil Procedure and
Nevada Rules of Appellate Procedure relative to new trials in, and
appeals from, the district court, except so far as they are inconsistent
with the provisions of NRS 34.150 to
34.290 , inclusive, apply to the
proceedings mentioned in NRS 34.150 to
34.290 , inclusive.
[1911 CPA § 771; RL § 5713; NCL § 9260]
PROHIBITION
The writ of prohibition
is the counterpart of the writ of mandate. It arrests the proceedings of
any tribunal, corporation, board or person exercising judicial functions,
when such proceedings are without or in excess of the jurisdiction of
such tribunal, corporation, board or person.
[1911 CPA § 766; RL § 5708; NCL § 9255]
The writ may be issued
only by the Supreme Court or a district court to an inferior tribunal, or
to a corporation, board or person, in all cases where there is not a
plain, speedy and adequate remedy in the ordinary course of law. It is
issued upon affidavit, on the application of the person beneficially
interested.
[1911 CPA § 767; RL § 5709; NCL § 9256]—(NRS A 2003, 1409 )
1. The writ must be either alternative or peremptory.
2. The alternative writ must state generally the allegation
against the party to whom it is directed and command such party to desist
or refrain from further proceedings in the action or matter specified
therein, until the further order of the court from which it is issued,
and to show cause before such court, at a specified time and place, why
such party should not be absolutely restrained from any further
proceedings in such action or matter.
3. The peremptory writ must be in a form similar to the
alternative writ, except that the words requiring the party to show cause
why he should not be absolutely restrained from any further proceedings
in such action or matter, must be omitted and a return day inserted.
[1911 CPA § 768; RL § 5710; NCL § 9257]
The
writ of prohibition may, in the discretion of the court issuing the writ,
be made returnable and a hearing thereon be had at any time.
[Part 1911 CPA § 769; RL § 5711; NCL § 9258]
HABEAS CORPUS
General Provisions
Every person
unlawfully committed, detained, confined or restrained of his liberty,
under any pretense whatever, may prosecute a writ of habeas corpus to
inquire into the cause of such imprisonment or restraint.
[1:93:1862; B § 349; BH § 3671; C § 3744; RL § 6226; NCL §
11375]—(NRS A 1967, 1469; 1969, 106)
1. A petition for a writ of habeas corpus must be verified by the
petitioner or his counsel. If the petition is verified by counsel, he
shall also verify that the petitioner personally authorized him to
commence the action.
2. A verified petition for issuance of a writ of habeas corpus
must specify that the petitioner is imprisoned or restrained of his
liberty, the officer or other person by whom he is confined or
restrained, and the place where he is confined, naming all the parties if
they are known, or describing them if they are not known.
3. If the petitioner claims that the imprisonment is illegal, the
petitioner must state facts which show that the restraint or detention is
illegal.
4. If the petition requests relief from a judgment of conviction
or sentence in a criminal case, the petition must identify the
proceedings in which the petitioner was convicted, give the date of entry
of the final judgment and set forth which constitutional rights of the
petitioner were violated and the acts constituting violations of those
rights. Affidavits, records or other evidence supporting the allegations
in the petition must be attached unless the petition recites the cause
for failure to attach these materials. The petition must identify any
previous proceeding in state or federal court initiated by the petitioner
to secure relief from his conviction or sentence. Argument, citations and
other supporting documents are unnecessary.
[2:93:1862; B § 350; BH § 3672; C § 3745; RL § 6227; NCL §
11376]—(NRS A 1985, 1233; 1987, 1215)
1. Any judge empowered to grant a writ of habeas corpus applied
for pursuant to this chapter, if it appears that the writ ought to issue,
shall grant the writ without delay, except as otherwise provided in NRS
34.720 to 34.830 , inclusive.
2. A writ of habeas corpus does not entitle a petitioner to be
discharged from the custody or restraint under which he is held. The writ
requires only the production of the petitioner to determine the legality
of his custody or restraint.
[4:93:1862; B § 352; BH § 3674; C § 3746 1/2; RL § 6229; NCL §
11378]—(NRS A 1985, 1235; 1991, 77)
The writ must be directed to the
person who has the petitioner in custody or under restraint, commanding
him to have the body of the petitioner produced before the district court
or Supreme Court at a time which the judge or justice directs.
[5:93:1862; B § 353; BH § 3675; C § 3747; RL § 6230; NCL §
11379]—(NRS A 1985, 1235)
1. If the writ be directed to the sheriff or other ministerial
officer, it shall be delivered to such officer without delay by the clerk
of the court presided over by the judge issuing the writ.
2. If the writ be directed to any other person, it shall be
delivered to the sheriff or his deputy, and shall be by him served
without delay upon such person by delivering the same to him.
3. If the officer or person to whom the writ is directed cannot be
found, or shall refuse admittance to the officer or person serving or
delivering the writ, it may be served or delivered by leaving it at the
residence of the officer or person to whom it is directed or by affixing
the same on some conspicuous place on the outside of his dwelling house,
or of the place where the party is confined or under restraint.
4. Service of the writ is made by serving a copy and exhibiting
the original, and where posting is required, by posting a copy.
[6:93:1862; B § 354; BH § 3676; C § 3748; RL § 6231; NCL § 11380] +
[7:93:1862; B § 355; BH § 3677; C § 3749; RL § 6232; NCL § 11381] +
[8:93:1862; B § 356; BH § 3678; C § 3750; RL § 6233; NCL § 11382]
If the officer
or person to whom such writ is directed refuse, after service, to obey
the same, the judge shall, upon affidavit, issue an attachment against
such person, directed to the sheriff, or, if the sheriff be the
defendant, to an elisor, appointed for the purpose by the judge,
commanding him forthwith to apprehend such person and bring him
immediately before such judge; and upon being so brought he shall be
committed to the jail of the county until he make due return to such
writ, or be otherwise legally discharged.
[9:93:1862; B § 357; BH § 3679; C § 3751; RL § 6234; NCL § 11383]
1. Except as otherwise provided in subsection 1 of NRS 34.745
, the respondent shall serve upon the
petitioner and file with the court a return and an answer that must
respond to the allegations of the petition within 45 days or a longer
period fixed by the judge or justice.
2. The return must state plainly and unequivocally whether the
respondent has the party in custody, or under his power or restraint. If
the respondent has the petitioner in his custody or power, or under his
restraint, he shall state the authority and cause of the imprisonment or
restraint, setting forth with specificity the basis for custody.
3. If the petitioner is detained by virtue of any judgment, writ,
warrant or other written authority, a certified or exemplified copy must
be annexed to the return.
4. If the respondent has the petitioner in his power or custody or
under his restraint before or after the date of the writ of habeas corpus
but has transferred custody or restraint to another, the return must
state particularly to whom, at what time and place, for what cause, and
by what authority the transfer took place.
5. The return must be signed by the respondent and, unless the
respondent is a sworn public officer who makes the return in his official
capacity, verified under oath or affirmation.
[10:93:1862; B § 358; BH § 3680; C § 3752; RL § 6235; NCL §
11384]—(NRS A 1985, 1235; 1991, 77; 1999, 144 )
If the writ of habeas corpus be served, the person or
officer to whom the same is directed shall also bring the body of the
party in his custody or under his restraint, according to the command of
the writ, except in the cases specified in NRS 34.450 .
[11:93:1862; B § 359; BH § 3681; C § 3753; RL § 6236; NCL § 11385]
1. Whenever, from sickness or infirmity of the person directed to
be produced by any writ of habeas corpus, he cannot, without danger, be
brought before the judge, the officer or person in whose custody or power
he is may state that fact in his return to the writ, verifying the same
by affidavit.
2. If the judge be satisfied of the truth of such allegation of
sickness or infirmity, and the return to the writ is otherwise
sufficient, the judge may proceed to decide on such return and to dispose
of the matter as if such party had been produced on the writ, or the
hearing thereof may be adjourned until such party can be produced.
[12:93:1862; B § 360; BH § 3682; C § 3754; RL § 6237; NCL § 11386]
+ [13:93:1862; B § 361; BH § 3683; C § 3755; RL § 6238; NCL § 11387]
1. The petitioner brought before the judge on the return of the
writ may deny or controvert any of the material facts or matters set
forth in the return or answer, deny the sufficiency thereof, or allege
any fact to show either that his imprisonment or detention is unlawful or
that he is entitled to his discharge.
2. The judge shall thereupon proceed in a summary way to hear such
allegation and proof as may be produced against or in favor of such
imprisonment or detention, and to dispose of the case as justice may
require.
3. The judge may compel the attendance of witnesses by process of
subpoena and attachment and perform all other acts necessary to a full
and fair hearing and determination of the case.
[15:93:1862; B § 363; BH § 3685; C § 3757; RL § 6240; NCL § 11389]
+ [16:93:1862; B § 364; BH § 3686; C § 3758; RL § 6241; NCL § 11390] +
[17:93:1862; B § 365; BH § 3687; C § 3759; RL § 6242; NCL § 11391]—(NRS A
1985, 1236)
If no legal cause be shown for such imprisonment or
restraint, or for the continuation thereof, such judge shall discharge
such party from the custody or restraint under which he is held.
[18:93:1862; B § 366; BH § 3688; C § 3760; RL § 6243; NCL § 11392]
If it appears
on the return of the writ of habeas corpus that the petitioner is in
custody by virtue of process from any court of this State, or judge or
officer thereof, the petitioner may be discharged in any one of the
following cases:
1. When the jurisdiction of the court or officer has been exceeded.
2. When the imprisonment was at first lawful, yet by some act,
omission or event, which has taken place afterwards, the petitioner has
become entitled to be discharged.
3. When the process is defective in some matter of substance
required by law, rendering it void.
4. When the process, though proper in form, has been issued in a
case not allowed by law.
5. When the person having the custody of the petitioner is not the
person allowed by law to detain him.
6. Where the process is not authorized by any judgment, order or
decree of any court, nor by any provision of law.
7. Where the petitioner has been committed or indicted on a
criminal charge, including a misdemeanor, except misdemeanor violations
of chapter 484 of NRS or any ordinance adopted by a city or county to regulate
traffic, without reasonable or probable cause.
8. Where the petitioner has been committed or indicted on any
criminal charge under a statute or ordinance that is unconstitutional, or
if constitutional on its face is unconstitutional in its application.
9. Where the court finds that there has been a specific denial of
the petitioner’s constitutional rights with respect to his conviction or
sentence in a criminal case.
[20:93:1862; B § 368; BH § 3690; C § 3762; RL § 6245; NCL §
11394]—(NRS A 1967, 1469; 1971, 773; 1985, 1236)
If any person be committed to prison, or be in custody of any
officer on any criminal charge, by virtue of any warrant or commitment of
a justice of the peace, such person shall not be discharged from such
imprisonment or custody on the ground of any defect of form in such
warrant or commitment.
[21:93:1862; B § 369; BH § 3691; C § 3763; RL § 6246; NCL § 11395]
If it
shall appear to the judge, by affidavit, or upon hearing of the matter,
or otherwise, or upon the inspection of the process or warrant of
commitment, and such other papers in the proceedings as may be shown to
the judge, that the party is guilty of a criminal offense, or ought not
to be discharged, the judge, although the charge is defectively or
unsubstantially set forth in such process or warrant of commitment, shall
cause the complainant, or other necessary witnesses, to be subpoenaed to
attend at such time as ordered, to testify before the judge; and upon the
examination, he shall discharge such prisoner, let him to bail, if the
offense be bailable, or recommit him to custody, as may be just and legal.
[22:93:1862; B § 370; BH § 3692; C § 3764; RL § 6247; NCL § 11396]
Any person who is
imprisoned or detained in custody on any criminal charge before
conviction for want of bail may file a petition for a writ of habeas
corpus for the purpose of giving bail, upon averring that fact in his
petition, without alleging that he is illegally confined.
[23:93:1862; B § 371; BH § 3693; C § 3765; RL § 6248; NCL §
11397]—(NRS A 1987, 1216)
Any Supreme Court
justice or judge, before whom any person who has been committed on a
criminal charge before conviction is brought on a writ of habeas corpus,
if that person is bailable, may take a recognizance from that person, as
in other cases, and shall file the same in the proper court without
delay. In no case where the applicant for a writ of habeas corpus has
been admitted to bail and failed to appear before the Supreme Court
justice, the judge or presiding judge of the court wherein the bail was
fixed may the proceedings for a writ of habeas corpus be dismissed,
except upon good cause shown. Upon the failure of that person to appear,
the justice, district judge or presiding judge shall cause a bench
warrant to be issued and that person arrested and brought before the
justice, judge or court as upon contempt.
[24:93:1862; A 1953, 257]—(NRS A 1987, 1216)
If a party brought before the judge on the
return of the writ is not entitled to his discharge, and is not bailed
where such bail is allowable, the judge shall remand him to custody or
place him under the restraint from which he was taken, if the person
under whose custody or restraint he was is legally entitled thereto.
[25:93:1862; B § 373; BH § 3695; C § 3767; RL § 6250; NCL § 11399]
1. In cases where any party is held under illegal restraint or
custody, or any other person is entitled to the restraint or custody of
such party, the judge may order such party to be committed to the
restraint or custody of such person as is by law entitled thereto.
2. If a party is ordered committed to the restraint or custody of
an officer from a jurisdiction outside the State of Nevada, the district
judge ordering such commitment shall stay the enforcement thereof for 5
days, during which time an aggrieved party may file a notice of appeal
therefrom to the Supreme Court.
3. Upon the filing of a notice of appeal as provided in subsection
2, the enforcement of such order of commitment shall be stayed during the
pendency of the appeal.
4. During any period of stay as provided in this section, the
local officer having custody of such party shall retain custody thereof.
[26:93:1862; B § 374; BH § 3696; C § 3768; RL § 6251; NCL §
11400]—(NRS A 1959, 18)
Until judgment is given on a petition, the judge
before whom any party may be brought on the petition may:
1. Commit him to the custody of the sheriff of the county; or
2. Place him in such care or under such custody as his age or
circumstances may require.
[27:93:1862; B § 375; BH § 3697; C § 3769; RL § 6252; NCL §
11401]—(NRS A 1999, 145 )
1. An applicant who, after conviction or while no criminal action
is pending against him, has petitioned the district court for a writ of
habeas corpus and whose application for the writ is denied, may appeal to
the Supreme Court from the order and judgment of the district court, but
the appeal must be made within 30 days after service by the court of
written notice of entry of the order or judgment.
2. The State of Nevada is an interested party in proceedings for a
writ of habeas corpus. If the district court grants the writ and orders
the discharge or a change in custody of the petitioner, the district
attorney of the county in which the application for the writ was made, or
the city attorney of a city which is situated in the county in which the
application for the writ was made, or the Attorney General on behalf of
the State, may appeal to the Supreme Court from the order of the district
judge within 30 days after the service by the court of written notice of
entry of the order.
3. Whenever an appeal is taken from an order of the district court
discharging a petitioner or committing him to the custody of another
person after granting a pretrial petition for habeas corpus based on
alleged want of probable cause, or otherwise challenging the court’s
right or jurisdiction to proceed to trial of a criminal charge, the clerk
of the district court shall forthwith certify and transmit to the Supreme
Court, as the record on appeal, the original papers on which the petition
was heard in the district court and, if the appellant or respondent
demands it, a transcript of any evidentiary proceedings had in the
district court. The district court shall require its court reporter to
expedite the preparation of the transcript in preference to any request
for a transcript in a civil matter. When the appeal is docketed in the
Supreme Court, it stands submitted without further briefs or oral
argument unless the Supreme Court otherwise orders.
(Added to NRS by 1991, 74)
No writ of habeas
corpus shall be disobeyed for defect of form if it sufficiently appear
therefrom in whose custody or under whose restraint the party imprisoned
or restrained is, the officer or person detaining him, and the judge
before whom he is to be brought.
[28:93:1862; B § 376; BH § 3698; C § 3770; RL § 6253; NCL § 11402]
No person who has been discharged by the order of the judge upon habeas
corpus issued pursuant to the provisions of this chapter shall be again
imprisoned, restrained or kept in custody for the same cause, except in
the following cases:
1. If he shall have been discharged from custody on a criminal
charge and be afterwards committed for the same offense by legal order or
process.
2. If after a discharge for defect of proof, or for any defect of
the process, warrant or commitment in a criminal case, the prisoner be
again arrested on sufficient proof and committed by legal process for the
same offense.
[29:93:1862; B § 377; BH § 3699; C § 3771; RL § 6254; NCL § 11403]
Whenever it shall appear by satisfactory proof, by affidavit, to any
judge authorized by law to grant a writ of habeas corpus, that anyone is
illegally held in custody, confinement or restraint, and that there is
good reason to believe that such person will be carried out of the
jurisdiction of such judge before whom the application is made, or will
suffer some irreparable injury before compliance with the writ of habeas
corpus can be enforced, the judge may cause a warrant to be issued,
reciting the facts, and directed to the sheriff or any constable of the
county, commanding such officer to take such person thus held in custody,
confinement or restraint and forthwith bring him or her before such
judge, to be dealt with according to law.
[30:93:1862; B § 378; BH § 3700; C § 3772; RL § 6255; NCL § 11404]
The judge may also, if the same be
deemed necessary, insert in such warrant a command for the apprehension
of the person charged with such illegal detention and restraint.
[31:93:1862; B § 379; BH § 3701; C § 3773; RL § 6256; NCL § 11405]
The officer to whom such warrant
is delivered shall execute the same by bringing the person or persons
therein named before the judge who may have directed the issuing of such
warrant.
[32:93:1862; B § 380; BH § 3702; C § 3774; RL § 6257; NCL § 11406]
The person
alleged to have such party under illegal confinement or restraint may
make return to such warrant, as in the case of a writ of habeas corpus,
and the same may be denied, and like allegations, proofs and trial shall
be thereon had as upon the return to a writ of habeas corpus.
[33:93:1862; B § 381; BH § 3703; C § 3775; RL § 6258; NCL § 11407]
If such party be
held under illegal restraint or custody, he shall be discharged, and if
not, he shall be restored to the custody of the person entitled thereto,
or left at liberty, as the case may require.
[34:93:1862; B § 382; BH § 3704; C § 3776; RL § 6259; NCL § 11408]
Any writ of process authorized by NRS 34.360 to 34.830 ,
inclusive, may be issued and served on Sunday or any other nonjudicial
day.
[35:93:1862; B § 383; BH § 3705; C § 3777; RL § 6260; NCL § 11409]
All writs, warrants, processes and subpoenas
authorized by the provisions of NRS 34.360 to 34.830 ,
inclusive, shall be issued by the clerk of the court, and, except
subpoenas, sealed with the seal of the court, and shall be served and
returned forthwith, unless the judge shall specify a particular time for
any such return.
[36:93:1862; B § 384; BH § 3706; C § 3778; RL § 6261; NCL § 11410]
If any judge, after a proper application is made, shall refuse to grant
an order for a writ of habeas corpus, or if the officer or person to whom
such writ may be directed shall refuse obedience to the command thereof,
he shall forfeit and pay to the person aggrieved a sum not exceeding
$5,000, to be recovered by action in any court of competent jurisdiction.
[37:93:1862; B § 385; BH § 3707; C § 3779; RL § 6262; NCL § 11411]
1. Any person having in his custody or under his restraint or
power any person for whose relief a writ of habeas corpus shall have been
duly issued pursuant to the provisions of this chapter, who, with the
intent to elude the service of such writ or to avoid the effect thereof,
shall transfer such person to the custody of another, or shall place him
under the power or control of another or shall conceal or exchange the
place of his confinement or restraint, or shall remove him without the
jurisdiction of such judge, shall be deemed guilty of a gross misdemeanor.
2. Every person who shall knowingly aid or assist in the
commission of any offense specified in subsection 1 shall be punished as
in subsection 1 mentioned.
[38:93:1862; B § 386; BH § 3708; C § 3780; RL § 6263; NCL § 11412]
+ [39:93:1862; B § 387; BH § 3709; C § 3781; RL § 6264; NCL § 11413] +
[40:93:1862; B § 388; BH § 3710; C § 3782; RL § 6265; NCL § 11414]—(NRS A
1967, 528)
Petitions for Pretrial Relief
1. Except as provided in subsection 3, a pretrial petition for a
writ of habeas corpus based on alleged lack of probable cause or
otherwise challenging the court’s right or jurisdiction to proceed to the
trial of a criminal charge may not be considered unless:
(a) The petition and all supporting documents are filed within 21
days after the first appearance of the accused in the district court; and
(b) The petition contains a statement that the accused:
(1) Waives the 60-day limitation for bringing an accused to
trial; or
(2) If the petition is not decided within 15 days before the
date set for trial, consents that the court may, without notice or
hearing, continue the trial indefinitely or to a date designated by the
court.
2. The arraignment and entry of a plea by the accused must not be
continued to avoid the requirement that a pretrial petition be filed
within the period specified in subsection 1.
3. The court may extend, for good cause, the time to file a
petition. Good cause shall be deemed to exist if the transcript of the
preliminary hearing or of the proceedings before the grand jury is not
available within 14 days after the accused’s initial appearance and the
court shall grant an ex parte application to extend the time for filing a
petition. All other applications may be made only after appropriate
notice has been given to the prosecuting attorney.
(Added to NRS by 1977, 1350; A 1981, 506; 1985, 1233)—(Substituted
in revision for NRS 34.375)
1. A district court shall not consider any pretrial petition for
habeas corpus:
(a) Based on alleged lack of probable cause or otherwise
challenging the court’s right or jurisdiction to proceed to the trial of
a criminal charge unless a petition is filed in accordance with NRS
34.700 .
(b) Based on a ground which the petitioner could have included as a
ground for relief in any prior petition for habeas corpus or other
petition for extraordinary relief.
2. If an application is made to a justice of the Supreme Court for
a writ of habeas corpus and the application is entertained by the justice
or the Supreme Court, and thereafter denied, the person making the
application may not submit thereafter an application to the district
judge of the district in which the applicant is held in custody, nor to
any other district judge in any other judicial district of the State,
premised upon the illegality of the same charge upon which the applicant
is held in custody.
[3:93:1862; A 1953, 257]—(NRS A 1959, 17; 1971, 235; 1973, 502;
1977, 768, 1350, 1352; 1979, 312; 1981, 507; 1985, 1234; 1987, 1216;
1991, 78)
Petitions for Postconviction Relief
The provisions of NRS 34.720
to 34.830 , inclusive, apply only to petitions for writs
of habeas corpus in which the petitioner:
1. Requests relief from a judgment of conviction or sentence in a
criminal case; or
2. Challenges the computation of time that he has served pursuant
to a judgment of conviction.
(Added to NRS by 1985, 1233; A 1987, 1217; 1991, 79)
As used in NRS 34.720 to 34.830 ,
inclusive, unless the context otherwise requires, “petition” means a
postconviction petition for habeas corpus filed pursuant to NRS 34.724
.
(Added to NRS by 1991, 75)
1. Any person convicted of a crime and under sentence of death or
imprisonment who claims that the conviction was obtained, or that the
sentence was imposed, in violation of the Constitution of the United
States or the Constitution or laws of this State, or who claims that the
time he has served pursuant to the judgment of conviction has been
improperly computed, may, without paying a filing fee, file a
postconviction petition for a writ of habeas corpus to obtain relief from
the conviction or sentence or to challenge the computation of time that
he has served.
2. Such a petition:
(a) Is not a substitute for and does not affect any remedies which
are incident to the proceedings in the trial court or the remedy of
direct review of the sentence or conviction.
(b) Comprehends and takes the place of all other common-law,
statutory or other remedies which have been available for challenging the
validity of the conviction or sentence, and must be used exclusively in
place of them.
(c) Is the only remedy available to an incarcerated person to
challenge the computation of time that he has served pursuant to a
judgment of conviction.
(Added to NRS by 1991, 75)
1. Unless there is good cause shown for delay, a petition that
challenges the validity of a judgment or sentence must be filed within 1
year after entry of the judgment of conviction or, if an appeal has been
taken from the judgment, within 1 year after the Supreme Court issues its
remittitur. For the purposes of this subsection, good cause for delay
exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly
prejudice the petitioner.
2. The execution of a sentence must not be stayed for the period
provided in subsection 1 solely because a petition may be filed within
that period. A stay of sentence must not be granted unless:
(a) A petition is actually filed; and
(b) The petitioner establishes a compelling basis for the stay.
(Added to NRS by 1991, 75)
1. A petition must be verified by the petitioner or his counsel.
If the petition is verified by counsel, he shall also verify that the
petitioner personally authorized him to commence the action.
2. The petition must be titled “Petition for Writ of Habeas Corpus
(Postconviction)” and be in substantially the form set forth in NRS
34.735 . The petition must name as
respondent and be served by mail upon the officer or other person by whom
the petitioner is confined or restrained. A copy of the petition must be
served by mail upon:
(a) The Attorney General; and
(b) In the case of a petition challenging the validity of a
judgment of conviction or sentence, the district attorney in the county
in which the petitioner was convicted.
3. Except as otherwise provided in this subsection, the clerk of
the district court shall file a petition as a new action separate and
distinct from any original proceeding in which a conviction has been had.
If a petition challenges the validity of a conviction or sentence, it
must be:
(a) Filed with the record of the original proceeding to which it
relates; and
(b) Whenever possible, assigned to the original judge or court.
4. No hearing upon the petition may be set until the requirements
of NRS 34.740 to 34.770 , inclusive, are satisfied.
(Added to NRS by 1985, 1229; A 1987, 1218; 1991, 79)
A petition must be in substantially
the following form, with appropriate modifications if the petition is
filed in the Supreme Court:
Case No. .............................
Dept. No. .............................
IN THE .................. JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF..................
.......................................................................
Petitioner,
v.
PETITION FOR WRIT
OF HABEAS CORPUS
(POSTCONVICTION)
.......................................................................
Respondent.
INSTRUCTIONS:
(1) This petition must be legibly handwritten or typewritten,
signed by the petitioner and verified.
(2) Additional pages are not permitted except where noted or with
respect to the facts which you rely upon to support your grounds for
relief. No citation of authorities need be furnished. If briefs or
arguments are submitted, they should be submitted in the form of a
separate memorandum.
(3) If you want an attorney appointed, you must complete the
Affidavit in Support of Request to Proceed in Forma Pauperis. You must
have an authorized officer at the prison complete the certificate as to
the amount of money and securities on deposit to your credit in any
account in the institution.
(4) You must name as respondent the person by whom you are confined
or restrained. If you are in a specific institution of the Department of
Corrections, name the warden or head of the institution. If you are not
in a specific institution of the Department but within its custody, name
the Director of the Department of Corrections.
(5) You must include all grounds or claims for relief which you may
have regarding your conviction or sentence. Failure to raise all grounds
in this petition may preclude you from filing future petitions
challenging your conviction and sentence.
(6) You must allege specific facts supporting the claims in the
petition you file seeking relief from any conviction or sentence. Failure
to allege specific facts rather than just conclusions may cause your
petition to be dismissed. If your petition contains a claim of
ineffective assistance of counsel, that claim will operate to waive the
attorney-client privilege for the proceeding in which you claim your
counsel was ineffective.
(7) When the petition is fully completed, the original and one copy
must be filed with the clerk of the state district court for the county
in which you were convicted. One copy must be mailed to the respondent,
one copy to the Attorney General’s Office, and one copy to the district
attorney of the county in which you were convicted or to the original
prosecutor if you are challenging your original conviction or sentence.
Copies must conform in all particulars to the original submitted for
filing.
PETITION
1. Name of institution and county in which you are presently
imprisoned or where and how you are presently restrained of your liberty:
...........................................................................
...........................................................................
.
2. Name and location of court which entered the judgment of
conviction under attack:
...........................................................................
...........................................................................
.
3. Date of judgment of conviction:
...........................................................................
.......
4. Case number:
...........................................................................
........................................
5. (a) Length of sentence:
...........................................................................
.......................
...........................................................................
...........................................................................
.
(b) If sentence is death, state any date upon which execution is
scheduled:.............
6. Are you presently serving a sentence for a conviction other
than the conviction under attack in this motion? Yes ........ No ........
If “yes,” list crime, case number and sentence being served at this time:
........................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
7. Nature of offense involved in conviction being challenged:
..................................
...........................................................................
...........................................................................
.
8. What was your plea? (check one)
(a) Not guilty ........
(b) Guilty ........
(c) Nolo contendere ........
9. If you entered a plea of guilty to one count of an indictment
or information, and a plea of not guilty to another count of an
indictment or information, or if a plea of guilty was negotiated, give
details: .....................................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
10. If you were found guilty after a plea of not guilty, was the
finding made by: (check one)
(a) Jury ........
(b) Judge without a jury ........
11. Did you testify at the trial? Yes ........ No ........
12. Did you appeal from the judgment of conviction? Yes ........
No ........
13. If you did appeal, answer the following:
(a) Name of court:
...........................................................................
.....................................
(b) Case number or citation:
...........................................................................
....................
(c) Result:
...........................................................................
...................................................
(d) Date of result:
...........................................................................
......................................
(Attach copy of order or decision, if available.)
14. If you did not appeal, explain briefly why you did not:
..........................................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
15. Other than a direct appeal from the judgment of conviction and
sentence, have you previously filed any petitions, applications or
motions with respect to this judgment in any court, state or federal? Yes
........ No ........
16. If your answer to No. 15 was “yes,” give the following
information:
(a) (1) Name of court:
...........................................................................
...............................
(2) Nature of proceeding:
...........................................................................
..................
...........................................................................
...........................................................................
.
(3) Grounds raised:
...........................................................................
.............................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
(4) Did you receive an evidentiary hearing on your petition,
application or motion? Yes ........ No ........
(5) Result:
...........................................................................
............................................
(6) Date of result:
...........................................................................
................................
(7) If known, citations of any written opinion or date of
orders entered pursuant to such result:
...........................................................................
...........................................................................
.
(b) As to any second petition, application or motion, give the same
information:
(1) Name of court:
...........................................................................
...............................
(2) Nature of proceeding:
...........................................................................
..................
(3) Grounds raised:
...........................................................................
.............................
(4) Did you receive an evidentiary hearing on your petition,
application or motion? Yes ........ No ........
(5) Result:
...........................................................................
............................................
(6) Date of result:
...........................................................................
................................
(7) If known, citations of any written opinion or date of
orders entered pursuant to such result:
...........................................................................
...........................................................................
.
(c) As to any third or subsequent additional applications or
motions, give the same information as above, list them on a separate
sheet and attach.
(d) Did you appeal to the highest state or federal court having
jurisdiction, the result or action taken on any petition, application or
motion?
(1) First petition, application or motion? Yes ........ No
........
Citation or date of decision:
...........................................................................
.......
(2) Second petition, application or motion? Yes ........ No
.........
Citation or date of decision:
...........................................................................
.......
(3) Third or subsequent petitions, applications or motions?
Yes ....... ..........................
No ........
Citation or date of decision:
...........................................................................
.......
(e) If you did not appeal from the adverse action on any petition,
application or motion, explain briefly why you did not. (You must relate
specific facts in response to this question. Your response may be
included on paper which is 8 1/2 by 11 inches attached to the petition.
Your response may not exceed five handwritten or typewritten pages in
length.) .........
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
17. Has any ground being raised in this petition been previously
presented to this or any other court by way of petition for habeas
corpus, motion, application or any other postconviction proceeding? If
so, identify:
(a) Which of the grounds is the same:
...........................................................................
..
...........................................................................
...........................................................................
.
(b) The proceedings in which these grounds were raised:
...........................................
...........................................................................
...........................................................................
.
(c) Briefly explain why you are again raising these grounds. (You
must relate specific facts in response to this question. Your response
may be included on paper which is 8 1/2 by 11 inches attached to the
petition. Your response may not exceed five handwritten or typewritten
pages in length.)
...........................................................................
.............................................
...........................................................................
...........................................................................
.
18. If any of the grounds listed in Nos. 23(a), (b), (c) and (d),
or listed on any additional pages you have attached, were not previously
presented in any other court, state or federal, list briefly what grounds
were not so presented, and give your reasons for not presenting them.
(You must relate specific facts in response to this question. Your
response may be included on paper which is 8 1/2 by 11 inches attached to
the petition. Your response may not exceed five handwritten or
typewritten pages in length.)
...........................................................................
...........................................................................
.
19. Are you filing this petition more than 1 year following the
filing of the judgment of conviction or the filing of a decision on
direct appeal? If so, state briefly the reasons for the delay. (You must
relate specific facts in response to this question. Your response may be
included on paper which is 8 1/2 by 11 inches attached to the petition.
Your response may not exceed five handwritten or typewritten pages in
length.)
...........................................................................
.........................................................
...........................................................................
...........................................................................
.
20. Do you have any petition or appeal now pending in any court,
either state or federal, as to the judgment under attack? Yes ........ No
........
If yes, state what court and the case number:
.......................................................................
...........................................................................
...........................................................................
.
21. Give the name of each attorney who represented you in the
proceeding resulting in your conviction and on direct appeal:
...........................................................................
...........................................................................
.
22. Do you have any future sentences to serve after you complete
the sentence imposed by the judgment under attack? Yes ........ No
........
If yes, specify where and when it is to be served, if you know:
.........................................
...........................................................................
...........................................................................
.
23. State concisely every ground on which you claim that you are
being held unlawfully. Summarize briefly the facts supporting each
ground. If necessary you may attach pages stating additional grounds and
facts supporting same.
(a) Ground one:
...........................................................................
.........................................
...........................................................................
...........................................................................
.
Supporting FACTS (Tell your story briefly without citing cases or law.):
.......................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
(b) Ground two:
...........................................................................
.........................................
...........................................................................
...........................................................................
.
Supporting FACTS (Tell your story briefly without citing cases or law.):
.......................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
(c) Ground three:
...........................................................................
.......................................
...........................................................................
...........................................................................
.
Supporting FACTS (Tell your story briefly without citing cases or law.):
.......................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
(d) Ground four:
...........................................................................
........................................
...........................................................................
...........................................................................
.
Supporting FACTS (Tell your story briefly without citing cases or law.):
.......................
...........................................................................
...........................................................................
.
...........................................................................
...........................................................................
.
WHEREFORE, petitioner prays that the court grant petitioner relief
to which he may be entitled in this proceeding.
EXECUTED at ................... on the ....... day of the month of
....... of the year .......
...............................................................
Signature of petitioner
...............................................................
Address
...........................................................................
....
Signature of attorney (if any)
...........................................................................
....
Attorney for petitioner
...........................................................................
....
Address
VERIFICATION
Under penalty of perjury, the undersigned declares that he is the
petitioner named in the foregoing petition and knows the contents
thereof; that the pleading is true of his own knowledge, except as to
those matters stated on information and belief, and as to such matters he
believes them to be true.
...............................................................
Petitioner
...............................................................
Attorney for petitioner
CERTIFICATE OF SERVICE BY MAIL
I, ................................, hereby certify pursuant to
N.R.C.P. 5 (b), that on this ........ day of the month of ........ of the
year ........, I mailed a true and correct copy of the foregoing PETITION
FOR WRIT OF HABEAS CORPUS addressed to:
...........................................................................
....................................
Respondent prison or jail official
...........................................................................
....................................
Address
...........................................................................
....................................
Attorney General
Heroes’ Memorial Building
Capitol Complex
Carson City, Nevada 89710
...........................................................................
....................................
District
Attorney of County of Conviction
...........................................................................
....................................
Address
...............................................................
Signature of Petitioner
(Added to NRS by 1987, 1210; A 1989, 451; 1991, 79; 1993, 243;
1995, 2460; 2001, 21 ; 2001 Special Session, 207 ; 2003, 1473 )
1. A petition that challenges the validity of a conviction or
sentence must be filed with the clerk of the district court for the
county in which the conviction occurred. Any other petition must be filed
with the clerk of the district court for the county in which the
petitioner is incarcerated.
2. A petition that is not filed in the district court for the
appropriate county:
(a) Shall be deemed to be filed on the date it is received by the
clerk of the district court in which the petition is initially lodged; and
(b) Must be transferred by the clerk of that court to the clerk of
the district court for the appropriate county.
3. A petition must not challenge both the validity of a judgment
of conviction or sentence and the computation of time that the petitioner
has served pursuant to that judgment. If a petition improperly challenges
both the validity of a judgment of conviction or sentence and the
computation of time that the petitioner has served pursuant to that
judgment, the district court for the appropriate county shall resolve
that portion of the petition that challenges the validity of the judgment
of conviction or sentence and dismiss the remainder of the petition
without prejudice.
(Added to NRS by 1991, 76; A 1999, 145 )
The
original petition must be presented promptly to a district judge or a
justice of the Supreme Court by the clerk of the court. The petition must
be examined expeditiously by the judge or justice to whom it is assigned.
(Added to NRS by 1985, 1229; A 1991, 85)
1. If a petition challenges the validity of a judgment of
conviction or sentence and is the first petition filed by the petitioner,
the judge or justice shall order the district attorney or the Attorney
General, whichever is appropriate, to:
(a) File:
(1) A response or an answer to the petition; and
(2) If an evidentiary hearing is required pursuant to NRS
34.770 , a return,
Ê within 45 days or a longer period fixed by the judge or justice; or
(b) Take other action that the judge or justice deems appropriate.
2. If a petition challenges the computation of time that the
petitioner has served pursuant to a judgment of conviction, the judge or
justice shall order the attorney general to:
(a) File:
(1) A response or an answer to the petition; and
(2) A return,
Ê within 45 days or a longer period fixed by the judge or justice.
(b) Take other action that the judge or justice deems appropriate.
3. An order entered pursuant to subsection 1 or 2 must be in
substantially the following form, with appropriate modifications if the
order is entered by a justice of the Supreme Court:
Case No. ...........................................................
Dept. No. ...........................................................
IN THE .................. JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF ..................
...........................................................................
.......
Petitioner,
v. ORDER
...........................................................................
.......
Respondent.
Petitioner filed a petition for a writ of habeas corpus on .....
(month) ..... (day), ..... (year). The court has reviewed the petition
and has determined that a response would assist the court in determining
whether petitioner is illegally imprisoned and restrained of his liberty.
Respondent shall, within 45 days after the date of this order, answer or
otherwise respond to the petition and file a return in accordance with
the provisions of NRS 34.360 to 34.830
, inclusive.
Dated ..... (month) ..... (day), ..... (year)
.......................................................
District Judge
A copy of the order must be served on the petitioner or his counsel, the
respondent, the Attorney General and the district attorney of the county
in which the petitioner was convicted.
4. If the petition is a second or successive petition challenging
the validity of a judgment of conviction or sentence and if it plainly
appears from the face of the petition or an amended petition and
documents and exhibits that are annexed to it, or from records of the
court that the petitioner is not entitled to relief based on any of the
grounds set forth in subsection 2 of NRS 34.810 , the judge or justice shall enter an order for
its summary dismissal and cause the petitioner to be notified of the
entry of the order.
5. If the judge or justice relies on the records of the court in
entering an order pursuant to this section, those records must be made a
part of the record of the proceeding before entry of the order.
(Added to NRS by 1991, 76; A 1999, 145 ; 2001, 57 )
1. A petition may allege that the petitioner is unable to pay the
costs of the proceedings or to employ counsel. If the court is satisfied
that the allegation of indigency is true and the petition is not
dismissed summarily, the court may appoint counsel to represent the
petitioner. In making its determination, the court may consider, among
other things, the severity of the consequences facing the petitioner and
whether:
(a) The issues presented are difficult;
(b) The petitioner is unable to comprehend the proceedings; or
(c) Counsel is necessary to proceed with discovery.
2. If the court determines that the petitioner is unable to pay
all necessary costs and expenses incident to the proceedings of the trial
court and the reviewing court, including court costs, stenographic
services, printing and reasonable compensation for legal services, all
costs must be paid from money appropriated to the office of the State
Public Defender for that purpose. After appropriations for that purpose
are exhausted, money must be allocated to the office of the State Public
Defender from the Reserve for Statutory Contingency Account for the
payment of the costs, expenses and compensation.
3. After appointment by the court, counsel for the petitioner may
file and serve supplemental pleadings, exhibits, transcripts and
documents within 30 days after:
(a) The date the court orders the filing of an answer and a return;
or
(b) The date of his appointment,
Ê whichever is later. If it has not previously been filed, the answer by
the respondent must be filed within 15 days after receipt of the
supplemental pleadings and include any response to the supplemental
pleadings.
4. The petitioner shall respond within 15 days after service to a
motion by the State to dismiss the action.
5. No further pleadings may be filed except as ordered by the
court.
(Added to NRS by 1985, 1230; A 1987, 1218; 1991, 85, 1751, 1824)
1. The answer must state whether the petitioner has previously
applied for relief from his conviction or sentence in any proceeding in a
state or federal court, including a direct appeal or a petition for a
writ of habeas corpus or other postconviction relief.
2. The answer must indicate what transcripts of pretrial, trial,
sentencing and postconviction proceedings are available, when these
transcripts can be furnished and what proceedings have been recorded and
not transcribed. The respondent shall attach to the answer any portions
of the transcripts, except those in the court’s file, which he deems
relevant. The court on its own motion or upon request of the petitioner
may order additional portions of existing transcripts to be furnished or
certain portions of the proceedings which were not transcribed to be
transcribed and furnished. If a transcript is not available or
procurable, the court may require a narrative summary of the evidence to
be submitted.
3. If the petitioner appealed from the judgment of conviction or
any adverse judgment or order in a prior petition for a writ of habeas
corpus or postconviction relief, a copy of the petitioner’s brief on
appeal and any opinion of the appellate court must be filed by the
respondent with the answer.
(Added to NRS by 1985, 1230; A 1991, 86)
1. The judge or justice, upon review of the return, answer and all
supporting documents which are filed, shall determine whether an
evidentiary hearing is required. A petitioner must not be discharged or
committed to the custody of a person other than the respondent unless an
evidentiary hearing is held.
2. If the judge or justice determines that the petitioner is not
entitled to relief and an evidentiary hearing is not required, he shall
dismiss the petition without a hearing.
3. If the judge or justice determines that an evidentiary hearing
is required, he shall grant the writ and shall set a date for the hearing.
(Added to NRS by 1985, 1230; A 1991, 86)
1. The Nevada Rules of Civil Procedure, to the extent that they
are not inconsistent with NRS 34.360 to
34.830 , inclusive, apply to proceedings
pursuant to NRS 34.720 to 34.830 , inclusive.
2. After the writ has been granted and a date set for the hearing,
a party may invoke any method of discovery available under the Nevada
Rules of Civil Procedure if, and to the extent that, the judge or justice
for good cause shown grants leave to do so.
3. A request for discovery which is available under the Nevada
Rules of Civil Procedure must be accompanied by a statement of the
interrogatories or requests for admission and a list of any documents
sought to be produced.
(Added to NRS by 1985, 1231; A 1987, 1219; 1991, 87)
1. If an evidentiary hearing is required, the judge or justice may
direct that the record be expanded by the parties by the inclusion of
additional materials relevant to the determination of the merits of the
petition.
2. The expanded record may include, without limitation, letters
which predate the filing of the petition in the district court,
documents, exhibits and answers under oath to written interrogatories
propounded by the judge. Affidavits may be submitted and considered as a
part of the record.
3. In any case in which the record is expanded, copies of proposed
letters, documents, exhibits and affidavits must be submitted to the
party against whom they are to be offered, and he must be afforded an
opportunity to admit or deny their correctness.
4. The court must require the authentication of any material
submitted pursuant to subsection 2 or 3.
(Added to NRS by 1985, 1231)
1. A petition may be dismissed if delay in the filing of the
petition:
(a) Prejudices the respondent or the State of Nevada in responding
to the petition, unless the petitioner shows that the petition is based
upon grounds of which he could not have had knowledge by the exercise of
reasonable diligence before the circumstances prejudicial to the State
occurred; or
(b) Prejudices the State of Nevada in its ability to conduct a
retrial of the petitioner, unless the petitioner demonstrates that a
fundamental miscarriage of justice has occurred in the proceedings
resulting in the judgment of conviction or sentence.
2. A period exceeding 5 years between the filing of a judgment of
conviction, an order imposing a sentence of imprisonment or a decision on
direct appeal of a judgment of conviction and the filing of a petition
challenging the validity of a judgment of conviction creates a rebuttable
presumption of prejudice to the State. In a motion to dismiss the
petition based on that prejudice, the respondent or the State of Nevada
must specifically plead laches. The petitioner must be given an
opportunity to respond to the allegations in the pleading before a ruling
on the motion is made.
(Added to NRS by 1985, 1231; A 1987, 1219; 1991, 87)
1. The court shall dismiss a petition if the court determines that:
(a) The petitioner’s conviction was upon a plea of guilty and the
petition is not based upon an allegation that the plea was involuntarily
or unknowingly entered or that the plea was entered without effective
assistance of counsel.
(b) The petitioner’s conviction was the result of a trial and the
grounds for the petition could have been:
(1) Presented to the trial court;
(2) Raised in a direct appeal or a prior petition for a writ
of habeas corpus or postconviction relief; or
(3) Raised in any other proceeding that the petitioner has
taken to secure relief from his conviction and sentence,
Ê unless the court finds both cause for the failure to present the
grounds and actual prejudice to the petitioner.
2. A second or successive petition must be dismissed if the judge
or justice determines that it fails to allege new or different grounds
for relief and that the prior determination was on the merits or, if new
and different grounds are alleged, the judge or justice finds that the
failure of the petitioner to assert those grounds in a prior petition
constituted an abuse of the writ.
3. Pursuant to subsections 1 and 2, the petitioner has the burden
of pleading and proving specific facts that demonstrate:
(a) Good cause for the petitioner’s failure to present the claim or
for presenting the claim again; and
(b) Actual prejudice to the petitioner.
Ê The petitioner shall include in the petition all prior proceedings in
which he challenged the same conviction or sentence.
4. The court may dismiss a petition that fails to include any
prior proceedings of which the court has knowledge through the record of
the court or through the pleadings submitted by the respondent.
(Added to NRS by 1985, 1232; A 1989, 457; 1995, 2465; 2003, 1478
)
1. If a petitioner has been sentenced to death and the petition is
the first one challenging the validity of the petitioner’s conviction or
sentence, the court shall:
(a) Appoint counsel to represent the petitioner; and
(b) Stay execution of the judgment pending disposition of the
petition and the appeal.
2. The petition must include the date upon which execution is
scheduled, if it has been scheduled. The petitioner is not entitled to an
evidentiary hearing unless the petition states that:
(a) Each issue of fact to be considered at the hearing has not been
determined in any prior evidentiary hearing in a state or federal court;
or
(b) For each issue of fact which has been determined in a prior
evidentiary hearing, the hearing was not a full and fair consideration of
the issue. The petition must specify all respects in which the hearing
was inadequate.
3. If the petitioner has previously filed a petition for relief or
for a stay of the execution in the same court, the petition must be
assigned to the judge or justice who considered the previous matter.
4. The court shall inform the petitioner and his counsel that all
claims which challenge the conviction or imposition of the sentence must
be joined in a single petition and that any matter not included in the
petition will not be considered in a subsequent proceeding.
5. If relief is granted or the execution is stayed, the clerk
shall forthwith notify the respondent, the Attorney General and the
district attorney of the county in which the petitioner was convicted.
6. If a district judge conducts an evidentiary hearing, a daily
transcript must be prepared for the purpose of appellate review.
7. The judge or justice who considers a petition filed by a
petitioner who has been sentenced to death shall make all reasonable
efforts to expedite the matter and shall render a decision within 60 days
after submission of the matter for decision.
(Added to NRS by 1985, 1232; A 1987, 1219; 1991, 87)
1. Any order that finally disposes of a petition, whether or not
an evidentiary hearing was held, must contain specific findings of fact
and conclusions of law supporting the decision of the court.
2. A copy of any decision or order discharging the petitioner from
the custody or restraint under which he is held, committing him to the
custody of another person, dismissing the petition or denying the
requested relief must be served by the clerk of the court upon the
petitioner and his counsel, if any, the respondent, the Attorney General
and the district attorney of the county in which the petitioner was
convicted.
3. Whenever a decision or order described in this section is
entered by the district court, the clerk of the court shall prepare a
notice in substantially the following form and mail a copy of the notice
to each person listed in subsection 2:
Case No. ...........................................................
Dept. No. ...........................................................
IN THE ....... JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA IN AND FOR THE COUNTY OF ..................
...........................................................................
.......
Petitioner,
v. NOTICE OF ENTRY OF
DECISION OR ORDER
...........................................................................
.......
Respondent.
PLEASE TAKE NOTICE that on ..... (month) ..... (day) ..... (year),
the court entered a decision or order in this matter, a true and correct
copy of which is attached to this notice.
You may appeal to the Supreme Court from the decision or order of
this court. If you wish to appeal, you must file a notice of appeal with
the clerk of this court within 33 days after the date this notice is
mailed to you. This notice was mailed on ..... (month) ..... (day) .....
(year)
Dated ..... (month) ..... (day) ..... (year)
.......................................................
Clerk of court
(SEAL)
By .................................................
Deputy
(Added to NRS by 1985, 1233; A 1987, 1220; 1991, 88; 2001, 26)
