2005 Nevada Revised Statutes - Chapter 34 — Writs: Certiorari; Mandamus; Prohibition; Habeas Corpus

CHAPTER 34 - WRITS: CERTIORARI; MANDAMUS;PROHIBITION; HABEAS CORPUS

CERTIORARI

NRS 34.010 Writof certiorari denominated writ of review.

NRS 34.020 Writmay be granted by Supreme Court and district courts; when writ may issue.

NRS 34.030 Applicationfor writ made on affidavit; notice to adverse party may be required.

NRS 34.040 Writmay be directed to inferior tribunal, board or officer.

NRS 34.050 Courtmay order return and hearing at any time.

NRS 34.060 Contentsof writ.

NRS 34.070 Suspensionof proceedings in inferior courts.

NRS 34.080 Serviceof writ.

NRS 34.090 Extentof review.

NRS 34.100 Perfectionof defective return; hearing and judgment.

NRS 34.110 Copyof judgment to be transmitted to inferior tribunal, board or officer.

NRS 34.120 Judgmentroll; appeal from judgment.

NRS 34.130 Rulesof practice in certiorari proceedings.

NRS 34.140 Procedurein new trials and appeals in certiorari proceedings.

MANDAMUS

NRS 34.150 Writof mandamus denominated writ of mandate.

NRS 34.160 Writmay be issued by Supreme Court and district courts; when writ may issue.

NRS 34.170 Writto issue when no plain, speedy and adequate remedy in law.

NRS 34.180 Writmay be made returnable; hearing.

NRS 34.185 Applicationalleging unconstitutional prior restraint; court required to render judgment onapplication not later than 30 days after application is filed.

NRS 34.190 Writmust be either alternative or peremptory; substance of writ.

NRS 34.200 Issuanceof alternative or peremptory writ; notice of application; case heard by courtwhether adverse party appears or not.

NRS 34.210 Adverseparty may show cause by answer under oath.

NRS 34.220 Ifanswer raises essential question of fact, court may order jury trial.

NRS 34.230 Applicantmay object to sufficiency of answer or countervail it by proof.

NRS 34.240 Motionfor new trial and new trial.

NRS 34.250 Clerkto transmit verdict to court where writ is pending, after which hearing may behad on application for writ.

NRS 34.260 Courtmay grant time for reply to answer; hearing by court.

NRS 34.270 Recoveryof damages by applicant; execution may issue to enforce judgment.

NRS 34.280 Serviceof writ.

NRS 34.290 Penaltiesfor refusal or neglect to obey writ; state and county officers.

NRS 34.300 Rulesof practice in mandamus proceedings.

NRS 34.310 Procedurein new trials and appeals in mandamus proceedings.

PROHIBITION

NRS 34.320 Writof prohibition defined.

NRS 34.330 Writmay be issued by Supreme Court or district court when no plain, speedy andadequate remedy in law.

NRS 34.340 Writmust be alternative or peremptory; form of writ.

NRS 34.350 Courtmay order return and hearing at any time.

HABEAS CORPUS

General Provisions

NRS 34.360 Personswho may prosecute writ.

NRS 34.370 Applicationfor writ; verification required; contents; supporting documents.

NRS 34.390 Judgeto grant writ without delay; exceptions; effect of writ.

NRS 34.400 Contentsof writ.

NRS 34.410 Serviceof writ.

NRS 34.420 Proceedingsupon disobedience of writ.

NRS 34.430 Returnand answer: Service and filing; contents; signature and verification.

NRS 34.440 Personserved must bring body of person in his custody; exceptions.

NRS 34.450 Sicknessor infirmity of person restrained; hearing may proceed or be adjourned.

NRS 34.470 Answerto return; summary proceeding; attendance of witnesses.

NRS 34.480 Ifno legal cause shown, judge shall discharge person from custody.

NRS 34.500 Groundsfor discharge in certain cases.

NRS 34.510 Defectof form in warrant or commitment not ground for discharge.

NRS 34.520 Ifcharge defectively set forth in process or warrant, judge shall examinewitnesses and discharge or recommit person.

NRS 34.530 Writfor purposes of bail.

NRS 34.540 Bailin habeas corpus proceedings.

NRS 34.550 Judgeto remand to custody if party not entitled to discharge or is not bailed.

NRS 34.560 Judgemay order change of custody; enforcement of commitment order stayed; appeal toSupreme Court.

NRS 34.570 Pendingjudgment on proceedings, judge may commit or place in custody.

NRS 34.575 Appealfrom order of district court granting or denying writ.

NRS 34.580 Defectof form in writ immaterial.

NRS 34.590 Caseswhere imprisonment after discharge is permitted.

NRS 34.600 Incertain cases warrant may issue instead of writ.

NRS 34.610 Judgemay include in warrant order for arrest of person charged with illegaldetention.

NRS 34.620 Executionof warrant.

NRS 34.630 Return,answer and hearing on warrant.

NRS 34.640 Partymay be discharged or remanded.

NRS 34.650 Writof process may issue on Sunday or nonjudicial day.

NRS 34.660 Clerkto issue writs, warrants, processes and subpoenas; when returnable.

NRS 34.670 Damagesrecoverable for failure to issue or obey writ.

NRS 34.680 Penaltiesfor custodian or accessory disobeying or avoiding writ.

 

Petitions for Pretrial Relief

NRS 34.700 Timefor filing; waiver and consent of accused respecting date of trial.

NRS 34.710 Limitationson submission and consideration of pretrial petition.

 

Petitions for Postconviction Relief

NRS 34.720 Scopeof provisions.

NRS 34.722 Petitiondefined.

NRS 34.724 Personswho may file petition; effect of filing.

NRS 34.726 Limitationson time to file; stay of sentence.

NRS 34.730 Petition:Verification; title; service; filing by clerk; prerequisites for hearing.

NRS 34.735 Petition:Form.

NRS 34.738 Petition:Filing in appropriate county; limitation on scope.

NRS 34.740 Petition:Expeditious judicial examination.

NRS 34.745 Judicialorder to file answer and return; when order is required; form of order; summarydismissal of successive petitions; record of proceeding.

NRS 34.750 Appointmentof counsel for indigents; pleadings supplemental to petition; response tomotion to dismiss.

NRS 34.760 Contentsof respondents answer; supplemental material.

NRS 34.770 Judicialdetermination of need for evidentiary hearing: Dismissal of petition orgranting of writ.

NRS 34.780 Applicabilityof Nevada Rules of Civil Procedure; discovery.

NRS 34.790 Recordof evidentiary hearing after writ is granted; submission of additionalmaterial.

NRS 34.800 Dismissalof petition for delay in filing.

NRS 34.810 Additionalreasons for dismissal of petition.

NRS 34.820 Procedurein cases where petitioner has been sentenced to death.

NRS 34.830 Contentsand notice of order finally disposing of petition.

_________

CERTIORARI

NRS 34.010 Writof certiorari denominated writ of review. Thewrit of certiorari may be denominated the writ of review.

[1911 CPA 741; RL 5683; NCL 9230]

NRS 34.020 Writmay be granted by Supreme Court and district courts; when writ may issue.

1. This writ may be granted, on application, by theSupreme Court, a district court, or a judge of the district court. When thewrit is issued by the district court or a judge of the district court it shallbe made returnable before the district court.

2. The writ shall be granted in all cases when aninferior tribunal, board or officer, exercising judicial functions, hasexceeded the jurisdiction of such tribunal, board or officer and there is noappeal, nor, in the judgment of the court, any plain, speedy and adequateremedy.

3. In any case prosecuted for the violation of astatute or municipal ordinance wherein an appeal has been taken from a JusticeCourt or from a municipal court, and wherein the district court has passed uponthe constitutionality or validity of such statute or ordinance, the writ shallbe granted by the Supreme Court upon application of the State or municipalityor defendant, for the purpose of reviewing the constitutionality or validity ofsuch statute or ordinance, but in no case shall the defendant be tried againfor the same offense.

[1911 CPA 742; A 1939, 114; 1931 NCL 9231]

NRS 34.030 Applicationfor writ made on affidavit; notice to adverse party may be required. The application shall be made on affidavit by the partybeneficially interested, and the court or judge to whom the application is mademay require a notice of the application to be given to the adverse party, ormay grant an order to show cause why it should not be allowed, or may grant thewrit without further notice.

[1911 CPA 743; RL 5685; NCL 9232]

NRS 34.040 Writmay be directed to inferior tribunal, board or officer. The writ may be directed to the inferior tribunal, boardor officer, or to any other person having the custody of the record orproceedings to be certified. When directed to a tribunal, the clerk, if therebe one, shall return the writ with the transcript required.

[1911 CPA 744; RL 5686; NCL 9233]

NRS 34.050 Courtmay order return and hearing at any time. Thewrit of certiorari may, in the discretion of the court or judge issuing thewrit, be made returnable and a hearing thereon be had at any time.

[Part 1911 CPA 769; RL 5711; NCL 9258]

NRS 34.060 Contentsof writ. The writ of review shall command theparty to whom it is directed to certify fully to the court before which thewrit is returnable, at a specified time and place, and annex to the writ atranscript of the record and proceeding, describing or referring to them withconvenient certainty, that the same may be reviewed by the court, and requiringthe party, in the meantime, to desist from further proceedings in the matter tobe reviewed.

[1911 CPA 745; RL 5687; NCL 9234]

NRS 34.070 Suspensionof proceedings in inferior courts. If a stayof proceedings be not intended the words requiring the stay shall be omittedfrom the writ. These words may be inserted or omitted in the sound discretionof the court or the judge issuing the writ, but if omitted, the power of theinferior court or officer shall not be suspended nor the proceedings stayed.

[1911 CPA 746; RL 5688; NCL 9235]

NRS 34.080 Serviceof writ. The writ shall be served in the samemanner as a summons in a civil action, except when otherwise expressly directedby the court or judge issuing the writ.

[1911 CPA 747; RL 5689; NCL 9236]

NRS 34.090 Extentof review. The review upon this writ shall notbe extended further than to determine whether the inferior tribunal, board orofficer has regularly pursued the authority of such tribunal, board or officer.

[1911 CPA 748; RL 5690; NCL 9237]

NRS 34.100 Perfectionof defective return; hearing and judgment. Ifthe return to the writ be defective, the court may order a further return to bemade. When a full return has been made, the court shall proceed to hear theparties, or such of them as may attend for that purpose, and may thereupon givejudgment, either affirming or annulling or modifying the proceedings below.

[1911 CPA 749; RL 5691; NCL 9238]

NRS 34.110 Copyof judgment to be transmitted to inferior tribunal, board or officer. A copy of the judgment, signed by the clerk, shall betransmitted to the inferior tribunal, board or officer having the custody ofthe record or proceeding certified up.

[1911 CPA 750; RL 5692; NCL 9239]

NRS 34.120 Judgmentroll; appeal from judgment. A copy of the judgment,signed by the clerk, entered upon or attached to the writ and return, shall constitutethe judgment roll. If the proceedings be had in any other than the SupremeCourt, an appeal may be taken from the judgment in the same manner and upon thesame terms as from a judgment in a civil action.

[1911 CPA 751; RL 5693; NCL 9240]

NRS 34.130 Rulesof practice in certiorari proceedings. Exceptas otherwise provided in NRS 34.010 to 34.120, inclusive, the provisions of NRSand Nevada Rules of Civil Procedure relative to civil actions in the districtcourt are applicable to and constitute the rules of practice in the proceedingsmentioned in NRS 34.010 to 34.120, inclusive.

[Part 1911 CPA 770; RL 5712; NCL 9259]

NRS 34.140 Procedurein new trials and appeals in certiorari proceedings. Theprovisions of the Nevada Rules of Civil Procedure and Nevada Rules of AppellateProcedure 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 proceedingsmentioned in NRS 34.010 to 34.120, inclusive.

[Part 1911 CPA 771; RL 5713; NCL 9260]

MANDAMUS

NRS 34.150 Writof mandamus denominated writ of mandate. Thewrit of mandamus may be denominated the writ of mandate.

[1911 CPA 752; RL 5694; NCL 9241]

NRS 34.160 Writmay be issued by Supreme Court and district courts; when writ may issue. The writ may be issued by the Supreme Court, a districtcourt or a judge of the district court, to compel the performance of an actwhich the law especially enjoins as a duty resulting from an office, trust orstation; or to compel the admission of a party to the use and enjoyment of aright or office to which he is entitled and from which he is unlawfullyprecluded by such inferior tribunal, corporation, board or person. When issuedby a district court or a judge of the district court it shall be madereturnable before the district court.

[1911 CPA 753; RL 5695; NCL 9242]

NRS 34.170 Writto issue when no plain, speedy and adequate remedy in law. This writ shall be issued in all cases where there is nota plain, speedy and adequate remedy in the ordinary course of law. It shall beissued upon affidavit, on the application of the party beneficially interested.

[1911 CPA 754; RL 5696; NCL 9243]

NRS 34.180 Writmay be made returnable; hearing. Except asotherwise provided in NRS 34.185, thewrit 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)

NRS 34.185 Applicationalleging unconstitutional prior restraint; court required to render judgment onapplication not later than 30 days after application is filed.

1. If the applicant is alleging an unconstitutionalprior restraint of his rights pursuant to the First Amendment to theConstitution of the United States or Section 9 of Article 1 of the Constitutionof the State of Nevada, the applicant shall insert the words First AmendmentPetition in the caption of the application for the writ in at least 10-pointtype.

2. The court shall render judgment on an applicationfor a writ described in subsection 1 not later than 30 days after the date onwhich the application for the writ is filed.

(Added to NRS by 1999, 176)

NRS 34.190 Writmust be either alternative or peremptory; substance of writ.

1. The writ shall be either alternative or peremptory.

2. The alternative writ shall state generally theallegation 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, todo the act required to be performed, or to show cause before the court, at aspecified time and place, why he has not done so.

3. The peremptory writ shall be in a form similar tothe alternative writ, except that the words requiring the party to show causewhy he has not done as commanded shall be omitted, and a return day shall beinserted.

[1911 CPA 755; RL 5697; NCL 9244]

NRS 34.200 Issuanceof alternative or peremptory writ; notice of application; case heard by courtwhether adverse party appears or not. When theapplication to the court or district judge is made without notice to theadverse 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, theperemptory 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 bydefault. The case shall be heard by the court, whether the adverse party appearor not.

[1911 CPA 756; RL 5698; NCL 9245]

NRS 34.210 Adverseparty may show cause by answer under oath. Onthe return day of the alternative, or the day on which the application of thewrit is noticed, or such further day as the court or district judge issuing thewrit may allow, the party on whom the writ or notice shall have been served mayshow cause by answer under oath, made in the same manner as an answer to acomplaint in a civil action.

[1911 CPA 757; RL 5699; NCL 9246]

NRS 34.220 Ifanswer raises essential question of fact, court may order jury trial. If an answer is made, which raises a question as to matterof fact essential to the determination of the motion, and affecting thesubstantial rights of the parties, and upon the supposed truth of theallegation of which the application for a writ is based, the court may, in itsdiscretion, order the question to be tried before a jury, and postpone theargument 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, andthe county shall be designated in which the same shall be had. The order mayalso direct the jury to assess any damages which the applicant may havesustained, in case they find for him.

[1911 CPA 758; RL 5700; NCL 9247]

NRS 34.230 Applicantmay object to sufficiency of answer or countervail it by proof. On the trial, the applicant shall not be precluded by theanswer from any valid objection to its sufficiency, and may countervail it byproof either in direct denial or by way of avoidance.

[1911 CPA 759; RL 5701; NCL 9248]

NRS 34.240 Motionfor new trial and new trial. If either partyis dissatisfied with the verdict of the jury, he may, without a statement insupport of the motion, move for a new trial upon the minutes of the court forany of the causes or grounds for new trials provided in Nevada Rules of CivilProcedure. The motion for a new trial may, upon reasonable notice, be broughton before the judge of the court in which the cause was tried. If a new trialis granted, the jury shall, within 5 days thereafter, unless the parties agreeon a longer time, be summoned to try the issue. After a second verdict in favorof the same party, a new trial shall not be had.

[1911 CPA 760; RL 5702; NCL 9249]

NRS 34.250 Clerkto transmit verdict to court where writ is pending, after which hearing may behad on application for writ. If no notice fora new trial be given or, if given, be denied, the clerk, within 5 days afterthe rendition of the verdict, or denial of the motion, shall transmit to thecourt in which the application for the writ is pending, a certified copy of theverdict attached to the order of trial; after which either party may bring onthe argument of the application, upon reasonable notice to the adverse party.

[1911 CPA 761; RL 5703; NCL 9250]

NRS 34.260 Courtmay grant time for reply to answer; hearing by court. Ifno answer be made, the case shall be heard on the papers of the applicant. Ifan answer be made which does not raise a question such as is mentioned in NRS 34.220, but only such matters as may beexplained or avoided by a reply, the court may, in its discretion, grant timefor replying. If the answer, or answer and reply, raise only questions of lawor put in issue immaterial statements not affecting the substantial rights ofthe parties, the court shall proceed to hear or fix a day for hearing theargument of the case.

[1911 CPA 762; RL 5704; NCL 9251]

NRS 34.270 Recoveryof damages by applicant; execution may issue to enforce judgment. If judgment be given for the applicant, he shall recoverthe damages which he shall have sustained as found by the jury, or as may bedetermined by the court or master, upon a reference to be ordered, togetherwith costs; and for such damages and costs an execution may issue, and aperemptory mandate shall also be awarded without delay.

[1911 CPA 763; RL 5705; NCL 9252]

NRS 34.280 Serviceof writ.

1. The writ shall be served in the same manner as asummons in a civil action, except when otherwise expressly directed by theorder of the court or district judge issuing the writ.

2. Service upon a majority of the members of any boardor body is service upon the board or body, whether at the time of the servicethe board or body was in session or not.

[1911 CPA 764; RL 5706; NCL 9253] + [Part 1911CPA 765; RL 5707; NCL 9254]

NRS 34.290 Penaltiesfor refusal or neglect to obey writ; state and county officers.

1. When a peremptory mandate has been issued anddirected to any inferior tribunal, corporation, board or person, if it appearto the court that any member of such tribunal, corporation or board, or suchperson, upon whom the writ has been personally served, has, without justexcuse, refused or neglected to obey the same, the court may, after notice andhearing, adjudge the party guilty of contempt and upon motion impose a fine notexceeding $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 3months and may make any orders necessary and proper for the completeenforcement of the writ.

3. If a fine be imposed upon a judge or officer whodraws a salary from the State or county, a certified copy of the order shall beforwarded to the State Controller or county treasurer, as the case may be, andthe 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 guiltyof a misdemeanor in office.

[Part 1911 CPA 765; RL 5707; NCL 9254]

NRS 34.300 Rulesof practice in mandamus proceedings. Except asotherwise provided in NRS 34.150 to 34.290, inclusive, the provisions of NRSand Nevada Rules of Civil Procedure relative to civil actions in the districtcourt are applicable to and constitute the rules of practice in the proceedingsmentioned in NRS 34.150 to 34.290, inclusive.

[1911 CPA 770; RL 5712; NCL 9259](NRS A 1999, 176)

NRS 34.310 Procedurein new trials and appeals in mandamus proceedings. Theprovisions of the Nevada Rules of Civil Procedure and Nevada Rules of AppellateProcedure 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 proceedingsmentioned in NRS 34.150 to 34.290, inclusive.

[1911 CPA 771; RL 5713; NCL 9260]

PROHIBITION

NRS 34.320 Writof prohibition defined. The writ ofprohibition is the counterpart of the writ of mandate. It arrests theproceedings of any tribunal, corporation, board or person exercising judicialfunctions, when such proceedings are without or in excess of the jurisdictionof such tribunal, corporation, board or person.

[1911 CPA 766; RL 5708; NCL 9255]

NRS 34.330 Writmay be issued by Supreme Court or district court when no plain, speedy andadequate remedy in law. The writ may be issuedonly by the Supreme Court or a district court to an inferior tribunal, or to acorporation, board or person, in all cases where there is not a plain, speedyand 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)

NRS 34.340 Writmust be alternative or peremptory; form of writ.

1. The writ must be either alternative or peremptory.

2. The alternative writ must state generally theallegation against the party to whom it is directed and command such party todesist or refrain from further proceedings in the action or matter specifiedtherein, until the further order of the court from which it is issued, and toshow cause before such court, at a specified time and place, why such partyshould not be absolutely restrained from any further proceedings in such actionor matter.

3. The peremptory writ must be in a form similar tothe alternative writ, except that the words requiring the party to show causewhy he should not be absolutely restrained from any further proceedings in suchaction or matter, must be omitted and a return day inserted.

[1911 CPA 768; RL 5710; NCL 9257]

NRS 34.350 Courtmay order return and hearing at any time. Thewrit of prohibition may, in the discretion of the court issuing the writ, bemade returnable and a hearing thereon be had at any time.

[Part 1911 CPA 769; RL 5711; NCL 9258]

HABEAS CORPUS

General Provisions

NRS 34.360 Personswho may prosecute writ. Every personunlawfully committed, detained, confined or restrained of his liberty, underany pretense whatever, may prosecute a writ of habeas corpus to inquire intothe 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)

NRS 34.370 Applicationfor writ; verification required; contents; supporting documents.

1. A petition for a writ of habeas corpus must beverified by the petitioner or his counsel. If the petition is verified bycounsel, he shall also verify that the petitioner personally authorized him tocommence the action.

2. A verified petition for issuance of a writ ofhabeas corpus must specify that the petitioner is imprisoned or restrained ofhis 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 isillegal, the petitioner must state facts which show that the restraint ordetention is illegal.

4. If the petition requests relief from a judgment ofconviction or sentence in a criminal case, the petition must identify theproceedings in which the petitioner was convicted, give the date of entry ofthe final judgment and set forth which constitutional rights of the petitionerwere violated and the acts constituting violations of those rights. Affidavits,records or other evidence supporting the allegations in the petition must beattached unless the petition recites the cause for failure to attach thesematerials. The petition must identify any previous proceeding in state orfederal court initiated by the petitioner to secure relief from his convictionor sentence. Argument, citations and other supporting documents areunnecessary.

[2:93:1862; B 350; BH 3672; C 3745; RL 6227;NCL 11376](NRS A 1985, 1233; 1987, 1215)

NRS 34.390 Judgeto grant writ without delay; exceptions; effect of writ.

1. Any judge empowered to grant a writ of habeascorpus applied for pursuant to this chapter, if it appears that the writ oughtto 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 apetitioner to be discharged from the custody or restraint under which he isheld. The writ requires only the production of the petitioner to determine thelegality 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)

NRS 34.400 Contentsof writ. The writ must be directed to theperson who has the petitioner in custody or under restraint, commanding him tohave the body of the petitioner produced before the district court or SupremeCourt 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)

NRS 34.410 Serviceof writ.

1. If the writ be directed to the sheriff or otherministerial officer, it shall be delivered to such officer without delay by theclerk of the court presided over by the judge issuing the writ.

2. If the writ be directed to any other person, itshall be delivered to the sheriff or his deputy, and shall be by him servedwithout delay upon such person by delivering the same to him.

3. If the officer or person to whom the writ isdirected cannot be found, or shall refuse admittance to the officer or personserving or delivering the writ, it may be served or delivered by leaving it atthe residence of the officer or person to whom it is directed or by affixingthe same on some conspicuous place on the outside of his dwelling house, or ofthe place where the party is confined or under restraint.

4. Service of the writ is made by serving a copy andexhibiting 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]

NRS 34.420 Proceedingsupon disobedience of writ. If the officer orperson 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 apprehendsuch person and bring him immediately before such judge; and upon being sobrought he shall be committed to the jail of the county until he make duereturn to such writ, or be otherwise legally discharged.

[9:93:1862; B 357; BH 3679; C 3751; RL 6234;NCL 11383]

NRS 34.430 Returnand answer: Service and filing; contents; signature and verification.

1. Except as otherwise provided in subsection 1 of NRS 34.745, the respondent shall serve uponthe petitioner and file with the court a return and an answer that must respondto the allegations of the petition within 45 days or a longer period fixed bythe judge or justice.

2. The return must state plainly and unequivocallywhether the respondent has the party in custody, or under his power orrestraint. If the respondent has the petitioner in his custody or power, orunder his restraint, he shall state the authority and cause of the imprisonmentor restraint, setting forth with specificity the basis for custody.

3. If the petitioner is detained by virtue of anyjudgment, writ, warrant or other written authority, a certified or exemplifiedcopy must be annexed to the return.

4. If the respondent has the petitioner in his poweror custody or under his restraint before or after the date of the writ ofhabeas corpus but has transferred custody or restraint to another, the returnmust state particularly to whom, at what time and place, for what cause, and bywhat 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 hisofficial 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)

NRS 34.440 Personserved must bring body of person in his custody; exceptions. If the writ of habeas corpus be served, the person orofficer to whom the same is directed shall also bring the body of the party inhis 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]

NRS 34.450 Sicknessor infirmity of person restrained; hearing may proceed or be adjourned.

1. Whenever, from sickness or infirmity of the persondirected to be produced by any writ of habeas corpus, he cannot, withoutdanger, be brought before the judge, the officer or person in whose custody orpower he is may state that fact in his return to the writ, verifying the sameby affidavit.

2. If the judge be satisfied of the truth of suchallegation of sickness or infirmity, and the return to the writ is otherwisesufficient, the judge may proceed to decide on such return and to dispose ofthe matter as if such party had been produced on the writ, or the hearingthereof 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]

NRS 34.470 Answerto return; summary proceeding; attendance of witnesses.

1. The petitioner brought before the judge on thereturn of the writ may deny or controvert any of the material facts or mattersset forth in the return or answer, deny the sufficiency thereof, or allege anyfact to show either that his imprisonment or detention is unlawful or that heis entitled to his discharge.

2. The judge shall thereupon proceed in a summary wayto hear such allegation and proof as may be produced against or in favor ofsuch imprisonment or detention, and to dispose of the case as justice mayrequire.

3. The judge may compel the attendance of witnesses byprocess of subpoena and attachment and perform all other acts necessary to afull 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)

NRS 34.480 Ifno legal cause shown, judge shall discharge person from custody. If no legal cause be shown for such imprisonment orrestraint, or for the continuation thereof, such judge shall discharge suchparty from the custody or restraint under which he is held.

[18:93:1862; B 366; BH 3688; C 3760; RL 6243;NCL 11392]

NRS 34.500 Groundsfor discharge in certain cases. If it appearson the return of the writ of habeas corpus that the petitioner is in custody byvirtue 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 hasbeen exceeded.

2. When the imprisonment was at first lawful, yet bysome act, omission or event, which has taken place afterwards, the petitionerhas become entitled to be discharged.

3. When the process is defective in some matter ofsubstance required by law, rendering it void.

4. When the process, though proper in form, has beenissued in a case not allowed by law.

5. When the person having the custody of thepetitioner is not the person allowed by law to detain him.

6. Where the process is not authorized by anyjudgment, order or decree of any court, nor by any provision of law.

7. Where the petitioner has been committed or indictedon a criminal charge, including a misdemeanor, except misdemeanor violations ofchapter 484 of NRS or any ordinance adopted bya city or county to regulate traffic, without reasonable or probable cause.

8. Where the petitioner has been committed or indictedon 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 aspecific denial of the petitioners constitutional rights with respect to hisconviction 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)

NRS 34.510 Defectof form in warrant or commitment not ground for discharge. If any person be committed to prison, or be in custody ofany officer on any criminal charge, by virtue of any warrant or commitment of ajustice of the peace, such person shall not be discharged from suchimprisonment or custody on the ground of any defect of form in such warrant orcommitment.

[21:93:1862; B 369; BH 3691; C 3763; RL 6246;NCL 11395]

NRS 34.520 Ifcharge defectively set forth in process or warrant, judge shall examinewitnesses and discharge or recommit person. Ifit shall appear to the judge, by affidavit, or upon hearing of the matter, orotherwise, or upon the inspection of the process or warrant of commitment, andsuch other papers in the proceedings as may be shown to the judge, that theparty is guilty of a criminal offense, or ought not to be discharged, thejudge, although the charge is defectively or unsubstantially set forth in suchprocess or warrant of commitment, shall cause the complainant, or othernecessary witnesses, to be subpoenaed to attend at such time as ordered, totestify before the judge; and upon the examination, he shall discharge suchprisoner, let him to bail, if the offense be bailable, or recommit him tocustody, as may be just and legal.

[22:93:1862; B 370; BH 3692; C 3764; RL 6247;NCL 11396]

NRS 34.530 Writfor purposes of bail. Any person who isimprisoned or detained in custody on any criminal charge before conviction forwant of bail may file a petition for a writ of habeas corpus for the purpose ofgiving bail, upon averring that fact in his petition, without alleging that heis illegally confined.

[23:93:1862; B 371; BH 3693; C 3765; RL 6248;NCL 11397](NRS A 1987, 1216)

NRS 34.540 Bailin habeas corpus proceedings. Any SupremeCourt justice or judge, before whom any person who has been committed on acriminal charge before conviction is brought on a writ of habeas corpus, ifthat person is bailable, may take a recognizance from that person, as in othercases, and shall file the same in the proper court without delay. In no casewhere the applicant for a writ of habeas corpus has been admitted to bail andfailed to appear before the Supreme Court justice, the judge or presiding judgeof the court wherein the bail was fixed may the proceedings for a writ ofhabeas corpus be dismissed, except upon good cause shown. Upon the failure ofthat person to appear, the justice, district judge or presiding judge shallcause a bench warrant to be issued and that person arrested and brought beforethe justice, judge or court as upon contempt.

[24:93:1862; A 1953, 257](NRS A 1987, 1216)

NRS 34.550 Judgeto remand to custody if party not entitled to discharge or is not bailed. If a party brought before the judge on the return of thewrit is not entitled to his discharge, and is not bailed where such bail isallowable, the judge shall remand him to custody or place him under therestraint from which he was taken, if the person under whose custody orrestraint he was is legally entitled thereto.

[25:93:1862; B 373; BH 3695; C 3767; RL 6250;NCL 11399]

NRS 34.560 Judgemay order change of custody; enforcement of commitment order stayed; appeal toSupreme Court.

1. In cases where any party is held under illegalrestraint or custody, or any other person is entitled to the restraint orcustody of such party, the judge may order such party to be committed to therestraint or custody of such person as is by law entitled thereto.

2. If a party is ordered committed to the restraint orcustody of an officer from a jurisdiction outside the State of Nevada, the districtjudge ordering such commitment shall stay the enforcement thereof for 5 days,during which time an aggrieved party may file a notice of appeal therefrom tothe Supreme Court.

3. Upon the filing of a notice of appeal as providedin subsection 2, the enforcement of such order of commitment shall be stayedduring the pendency of the appeal.

4. During any period of stay as provided in thissection, the local officer having custody of such party shall retain custodythereof.

[26:93:1862; B 374; BH 3696; C 3768; RL 6251;NCL 11400](NRS A 1959, 18)

NRS 34.570 Pendingjudgment on proceedings, judge may commit or place in custody. Until judgment is given on a petition, the judge beforewhom any party may be brought on the petition may:

1. Commit him to the custody of the sheriff of thecounty; or

2. Place him in such care or under such custody as hisage or circumstances may require.

[27:93:1862; B 375; BH 3697; C 3769; RL 6252;NCL 11401](NRS A 1999,145)

NRS 34.575 Appealfrom order of district court granting or denying writ.

1. An applicant who, after conviction or while nocriminal action is pending against him, has petitioned the district court for awrit of habeas corpus and whose application for the writ is denied, may appealto the Supreme Court from the order and judgment of the district court, but theappeal must be made within 30 days after service by the court of written noticeof entry of the order or judgment.

2. The State of Nevada is an interested party inproceedings for a writ of habeas corpus. If the district court grants the writand orders the discharge or a change in custody of the petitioner, the districtattorney of the county in which the application for the writ was made, or thecity attorney of a city which is situated in the county in which theapplication for the writ was made, or the Attorney General on behalf of theState, may appeal to the Supreme Court from the order of the district judgewithin 30 days after the service by the court of written notice of entry of theorder.

3. Whenever an appeal is taken from an order of thedistrict court discharging a petitioner or committing him to the custody ofanother person after granting a pretrial petition for habeas corpus based onalleged want of probable cause, or otherwise challenging the courts right orjurisdiction to proceed to trial of a criminal charge, the clerk of thedistrict court shall forthwith certify and transmit to the Supreme Court, asthe record on appeal, the original papers on which the petition was heard in thedistrict court and, if the appellant or respondent demands it, a transcript ofany evidentiary proceedings had in the district court. The district court shallrequire its court reporter to expedite the preparation of the transcript inpreference to any request for a transcript in a civil matter. When the appealis docketed in the Supreme Court, it stands submitted without further briefs ororal argument unless the Supreme Court otherwise orders.

(Added to NRS by 1991, 74)

NRS 34.580 Defectof form in writ immaterial. No writ of habeascorpus shall be disobeyed for defect of form if it sufficiently appeartherefrom in whose custody or under whose restraint the party imprisoned orrestrained is, the officer or person detaining him, and the judge before whomhe is to be brought.

[28:93:1862; B 376; BH 3698; C 3770; RL 6253;NCL 11402]

NRS 34.590 Caseswhere imprisonment after discharge is permitted. Noperson who has been discharged by the order of the judge upon habeas corpusissued pursuant to the provisions of this chapter shall be again imprisoned,restrained or kept in custody for the same cause, except in the followingcases:

1. If he shall have been discharged from custody on acriminal charge and be afterwards committed for the same offense by legal orderor process.

2. If after a discharge for defect of proof, or forany defect of the process, warrant or commitment in a criminal case, theprisoner be again arrested on sufficient proof and committed by legal processfor the same offense.

[29:93:1862; B 377; BH 3699; C 3771; RL 6254;NCL 11403]

NRS 34.600 Incertain cases warrant may issue instead of writ. Wheneverit shall appear by satisfactory proof, by affidavit, to any judge authorized bylaw 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 suchperson will be carried out of the jurisdiction of such judge before whom theapplication is made, or will suffer some irreparable injury before compliancewith the writ of habeas corpus can be enforced, the judge may cause a warrantto be issued, reciting the facts, and directed to the sheriff or any constableof 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, tobe dealt with according to law.

[30:93:1862; B 378; BH 3700; C 3772; RL 6255;NCL 11404]

NRS 34.610 Judgemay include in warrant order for arrest of person charged with illegaldetention. The judge may also, if the same bedeemed necessary, insert in such warrant a command for the apprehension of theperson charged with such illegal detention and restraint.

[31:93:1862; B 379; BH 3701; C 3773; RL 6256;NCL 11405]

NRS 34.620 Executionof warrant. The officer to whom such warrantis delivered shall execute the same by bringing the person or persons thereinnamed 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]

NRS 34.630 Return,answer and hearing on warrant. The personalleged to have such party under illegal confinement or restraint may makereturn to such warrant, as in the case of a writ of habeas corpus, and the samemay be denied, and like allegations, proofs and trial shall be thereon had asupon the return to a writ of habeas corpus.

[33:93:1862; B 381; BH 3703; C 3775; RL 6258;NCL 11407]

NRS 34.640 Partymay be discharged or remanded. If such partybe 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 atliberty, as the case may require.

[34:93:1862; B 382; BH 3704; C 3776; RL 6259;NCL 11408]

NRS 34.650 Writof process may issue on Sunday or nonjudicial day. Anywrit of process authorized by NRS 34.360to 34.830, inclusive, may be issued andserved on Sunday or any other nonjudicial day.

[35:93:1862; B 383; BH 3705; C 3777; RL 6260;NCL 11409]

NRS 34.660 Clerkto issue writs, warrants, processes and subpoenas; when returnable. All writs, warrants, processes and subpoenas authorized bythe provisions of NRS 34.360 to 34.830, inclusive, shall be issued by theclerk 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 aparticular time for any such return.

[36:93:1862; B 384; BH 3706; C 3778; RL 6261;NCL 11410]

NRS 34.670 Damagesrecoverable for failure to issue or obey writ. Ifany judge, after a proper application is made, shall refuse to grant an orderfor a writ of habeas corpus, or if the officer or person to whom such writ maybe directed shall refuse obedience to the command thereof, he shall forfeit andpay to the person aggrieved a sum not exceeding $5,000, to be recovered byaction in any court of competent jurisdiction.

[37:93:1862; B 385; BH 3707; C 3779; RL 6262;NCL 11411]

NRS 34.680 Penaltiesfor custodian or accessory disobeying or avoiding writ.

1. Any person having in his custody or under hisrestraint or power any person for whose relief a writ of habeas corpus shallhave been duly issued pursuant to the provisions of this chapter, who, with theintent to elude the service of such writ or to avoid the effect thereof, shalltransfer such person to the custody of another, or shall place him under thepower or control of another or shall conceal or exchange the place of hisconfinement or restraint, or shall remove him without the jurisdiction of suchjudge, shall be deemed guilty of a gross misdemeanor.

2. Every person who shall knowingly aid or assist inthe commission of any offense specified in subsection 1 shall be punished as insubsection 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

NRS 34.700 Timefor filing; waiver and consent of accused respecting date of trial.

1. Except as provided in subsection 3, a pretrialpetition for a writ of habeas corpus based on alleged lack of probable cause orotherwise challenging the courts right or jurisdiction to proceed to the trialof a criminal charge may not be considered unless:

(a) The petition and all supporting documents are filedwithin 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 anaccused to trial; or

(2) If the petition is not decided within 15days before the date set for trial, consents that the court may, without noticeor hearing, continue the trial indefinitely or to a date designated by thecourt.

2. The arraignment and entry of a plea by the accusedmust not be continued to avoid the requirement that a pretrial petition befiled within the period specified in subsection 1.

3. The court may extend, for good cause, the time tofile a petition. Good cause shall be deemed to exist if the transcript of thepreliminary hearing or of the proceedings before the grand jury is notavailable within 14 days after the accuseds initial appearance and the courtshall 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 givento the prosecuting attorney.

(Added to NRS by 1977, 1350; A 1981, 506; 1985,1233)(Substituted in revision for NRS 34.375)

NRS 34.710 Limitationson submission and consideration of pretrial petition.

1. A district court shall not consider any pretrialpetition for habeas corpus:

(a) Based on alleged lack of probable cause orotherwise challenging the courts right or jurisdiction to proceed to the trialof a criminal charge unless a petition is filed in accordance with NRS 34.700.

(b) Based on a ground which the petitioner could haveincluded as a ground for relief in any prior petition for habeas corpus orother petition for extraordinary relief.

2. If an application is made to a justice of theSupreme Court for a writ of habeas corpus and the application is entertained bythe justice or the Supreme Court, and thereafter denied, the person making theapplication may not submit thereafter an application to the district judge ofthe district in which the applicant is held in custody, nor to any otherdistrict judge in any other judicial district of the State, premised upon theillegality 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

NRS 34.720 Scopeof provisions. The provisions of NRS 34.720 to 34.830, inclusive, apply only to petitionsfor writs of habeas corpus in which the petitioner:

1. Requests relief from a judgment of conviction orsentence in a criminal case; or

2. Challenges the computation of time that he hasserved pursuant to a judgment of conviction.

(Added to NRS by 1985, 1233; A 1987, 1217; 1991, 79)

NRS 34.722 Petitiondefined. As used in NRS 34.720 to 34.830, inclusive, unless the contextotherwise requires, petition means a postconviction petition for habeascorpus filed pursuant to NRS 34.724.

(Added to NRS by 1991, 75)

NRS 34.724 Personswho may file petition; effect of filing.

1. Any person convicted of a crime and under sentenceof death or imprisonment who claims that the conviction was obtained, or thatthe sentence was imposed, in violation of the Constitution of the United Statesor the Constitution or laws of this State, or who claims that the time he hasserved pursuant to the judgment of conviction has been improperly computed,may, without paying a filing fee, file a postconviction petition for a writ ofhabeas corpus to obtain relief from the conviction or sentence or to challengethe computation of time that he has served.

2. Such a petition:

(a) Is not a substitute for and does not affect anyremedies which are incident to the proceedings in the trial court or the remedyof direct review of the sentence or conviction.

(b) Comprehends and takes the place of all othercommon-law, statutory or other remedies which have been available forchallenging the validity of the conviction or sentence, and must be usedexclusively in place of them.

(c) Is the only remedy available to an incarceratedperson to challenge the computation of time that he has served pursuant to ajudgment of conviction.

(Added to NRS by 1991, 75)

NRS 34.726 Limitationson time to file; stay of sentence.

1. Unless there is good cause shown for delay, apetition that challenges the validity of a judgment or sentence must be filedwithin 1 year after entry of the judgment of conviction or, if an appeal hasbeen taken from the judgment, within 1 year after the Supreme Court issues itsremittitur. For the purposes of this subsection, good cause for delay exists ifthe 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 willunduly prejudice the petitioner.

2. The execution of a sentence must not be stayed forthe period provided in subsection 1 solely because a petition may be filedwithin 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 forthe stay.

(Added to NRS by 1991, 75)

NRS 34.730 Petition:Verification; title; service; filing by clerk; prerequisites for hearing.

1. A petition must be verified by the petitioner orhis counsel. If the petition is verified by counsel, he shall also verify thatthe petitioner personally authorized him to commence the action.

2. The petition must be titled Petition for Writ ofHabeas Corpus (Postconviction) and be in substantially the form set forth in NRS 34.735. The petition must name asrespondent and be served by mail upon the officer or other person by whom thepetitioner is confined or restrained. A copy of the petition must be served bymail upon:

(a) The Attorney General; and

(b) In the case of a petition challenging the validityof a judgment of conviction or sentence, the district attorney in the county inwhich 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 separateand 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 towhich it relates; and

(b) Whenever possible, assigned to the original judgeor court.

4. No hearing upon the petition may be set until therequirements of NRS 34.740 to 34.770, inclusive, are satisfied.

(Added to NRS by 1985, 1229; A 1987, 1218; 1991, 79)

NRS 34.735 Petition:Form. A petition must be in substantially thefollowing form, with appropriate modifications if the petition is filed in theSupreme Court:

 

Case No. .............................

Dept. No. .............................

 

IN THE.................. JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN ANDFOR THE COUNTY OF..................

 

.......................................................................

Petitioner,

 

v. PETITIONFOR WRIT

OFHABEAS CORPUS

(POSTCONVICTION)

.......................................................................

Respondent.

 

INSTRUCTIONS:

(1) This petition must be legibly handwritten ortypewritten, signed by the petitioner and verified.

(2) Additional pages are not permitted except wherenoted or with respect to the facts which you rely upon to support your groundsfor relief. No citation of authorities need be furnished. If briefs orarguments are submitted, they should be submitted in the form of a separatememorandum.

(3) If you want an attorney appointed, you mustcomplete the Affidavit in Support of Request to Proceed in Forma Pauperis. Youmust have an authorized officer at the prison complete the certificate as tothe amount of money and securities on deposit to your credit in any account inthe institution.

(4) You must name as respondent the person by whom youare confined or restrained. If you are in a specific institution of theDepartment of Corrections, name the warden or head of the institution. If youare 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 reliefwhich you may have regarding your conviction or sentence. Failure to raise allgrounds in this petition may preclude you from filing future petitionschallenging your conviction and sentence.

(6) You must allege specific facts supporting theclaims in the petition you file seeking relief from any conviction or sentence.Failure to allege specific facts rather than just conclusions may cause yourpetition to be dismissed. If your petition contains a claim of ineffectiveassistance of counsel, that claim will operate to waive the attorney-clientprivilege for the proceeding in which you claim your counsel was ineffective.

(7) When the petition is fully completed, the originaland one copy must be filed with the clerk of the state district court for thecounty in which you were convicted. One copy must be mailed to the respondent,one copy to the Attorney Generals Office, and one copy to the districtattorney of the county in which you were convicted or to the originalprosecutor if you are challenging your original conviction or sentence. Copiesmust conform in all particulars to the original submitted for filing.

 

PETITION

 

1. Name of institution and county in which you arepresently imprisoned or where and how you are presently restrained of yourliberty:

.......................................................................................................................................................

2. Name and location of court which entered thejudgment 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 whichexecution is scheduled:.............

6. Are you presently serving a sentence for aconviction other than the conviction under attack in this motion? Yes ........No ........

If yes, list crime, case number and sentence being servedat this time: ........................

.......................................................................................................................................................

.......................................................................................................................................................

7. Nature of offense involved in conviction beingchallenged: ..................................

.......................................................................................................................................................

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 anindictment or information, and a plea of not guilty to another count of anindictment or information, or if a plea of guilty was negotiated, give details:.....................................

.......................................................................................................................................................

.......................................................................................................................................................

10. If you were found guilty after a plea of notguilty, 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 didnot: ..........................................

.......................................................................................................................................................

.......................................................................................................................................................

15. Other than a direct appeal from the judgment ofconviction and sentence, have you previously filed any petitions, applicationsor motions with respect to this judgment in any court, state or federal? Yes........ No ........

16. If your answer to No. 15 was yes, give thefollowing information:

(a) (1) Name of court: ..........................................................................................................

(2) Nature of proceeding: .............................................................................................

.......................................................................................................................................................

(3) Grounds raised: ........................................................................................................

.......................................................................................................................................................

.......................................................................................................................................................

(4) Did you receive an evidentiary hearing on yourpetition, application or motion? Yes ........ No ........

(5) Result: .......................................................................................................................

(6) Date of result: ...........................................................................................................

(7) If known, citations of any written opinionor 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 onyour petition, application or motion? Yes ........ No ........

(5) Result: .......................................................................................................................

(6) Date of result: ...........................................................................................................

(7) If known, citations of any written opinionor date of orders entered pursuant to such result:

.......................................................................................................................................................

(c) As to any third or subsequent additionalapplications or motions, give the same information as above, list them on aseparate sheet and attach.

(d) Did you appeal to the highest state or federalcourt 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, applicationsor motions? Yes ....... .......................... No........

Citation or date of decision: ..................................................................................

(e) If you did not appeal from the adverse action onany petition, application or motion, explain briefly why you did not. (You mustrelate specific facts in response to this question. Your response may beincluded on paper which is 8 1/2 by 11 inches attached to the petition. Your responsemay not exceed five handwritten or typewritten pages in length.) .........

.......................................................................................................................................................

.......................................................................................................................................................

17. Has any ground being raised in this petition beenpreviously presented to this or any other court by way of petition for habeascorpus, 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 thesegrounds. (You must relate specific facts in response to this question. Yourresponse may be included on paper which is 8 1/2 by 11 inches attached to thepetition. Your response may not exceed five handwritten or typewritten pages inlength.) ........................................................................................................................

.......................................................................................................................................................

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 notpreviously presented in any other court, state or federal, list briefly whatgrounds were not so presented, and give your reasons for not presenting them.(You must relate specific facts in response to this question. Your response maybe included on paper which is 8 1/2 by 11 inches attached to the petition. Yourresponse may not exceed five handwritten or typewritten pages in length.)

.......................................................................................................................................................

19. Are you filing this petition more than 1 year followingthe filing of the judgment of conviction or the filing of a decision on directappeal? If so, state briefly the reasons for the delay. (You must relatespecific facts in response to this question. Your response may be included onpaper which is 8 1/2 by 11 inches attached to the petition. Your response maynot exceed five handwritten or typewritten pages in length.) ....................................................................................................................................

.......................................................................................................................................................

20. Do you have any petition or appeal now pending inany 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 youin the proceeding resulting in your conviction and on direct appeal:

.......................................................................................................................................................

22. Do you have any future sentences to serve afteryou complete the sentence imposed by the judgment under attack? Yes ........ No........

If yes, specify where and when it is to be served, if youknow: .........................................

.......................................................................................................................................................

23. State concisely every ground on which you claimthat you are being held unlawfully. Summarize briefly the facts supporting eachground. If necessary you may attach pages stating additional grounds and factssupporting same.

(a) Ground one: ....................................................................................................................

.......................................................................................................................................................

Supporting FACTS (Tell your story briefly without citingcases or law.): .......................

.......................................................................................................................................................

.......................................................................................................................................................

(b) Ground two: ....................................................................................................................

.......................................................................................................................................................

Supporting FACTS (Tell your story briefly without citingcases or law.): .......................

.......................................................................................................................................................

.......................................................................................................................................................

(c) Ground three: ..................................................................................................................

.......................................................................................................................................................

Supporting FACTS (Tell your story briefly without citingcases or law.): .......................

.......................................................................................................................................................

.......................................................................................................................................................

(d) Ground four: ...................................................................................................................

.......................................................................................................................................................

Supporting FACTS (Tell your story briefly without citingcases or law.): .......................

.......................................................................................................................................................

.......................................................................................................................................................

WHEREFORE, petitioner prays that the court grantpetitioner relief to which he may be entitled in this proceeding.

EXECUTED at ................... on the ....... day ofthe month of ....... of the year .......

 

...............................................................

Signatureof petitioner

...............................................................

Address

...............................................................................

Signature of attorney (if any)

...............................................................................

Attorney for petitioner

...............................................................................

Address

 

VERIFICATION

 

Under penalty of perjury, the undersigned declares thathe is the petitioner named in the foregoing petition and knows the contentsthereof; that the pleading is true of his own knowledge, except as to thosematters stated on information and belief, and as to such matters he believesthem to be true.

 

...............................................................

Petitioner

...............................................................

Attorneyfor petitioner

 

CERTIFICATE OF SERVICEBY MAIL

 

I, ................................, hereby certifypursuant to N.R.C.P. 5(b), thaton this ........ day of the month of ........ of the year ........, I mailed atrue and correct copy of the foregoing PETITION FOR WRIT OF HABEAS CORPUSaddressed to:

 

...............................................................................................................

Respondentprison or jail official

...............................................................................................................

Address

...............................................................................................................

Attorney General

Heroes MemorialBuilding

Capitol Complex

Carson City, Nevada89710

 

...............................................................................................................

DistrictAttorney of County of Conviction

...............................................................................................................

Address

 

...............................................................

Signatureof Petitioner

 

(Added to NRS by 1987, 1210; A 1989, 451; 1991, 79;1993, 243; 1995, 2460; 2001,21; 2001Special Session, 207; 2003, 1473)

NRS 34.738 Petition:Filing in appropriate county; limitation on scope.

1. A petition that challenges the validity of a convictionor sentence must be filed with the clerk of the district court for the countyin which the conviction occurred. Any other petition must be filed with theclerk of the district court for the county in which the petitioner isincarcerated.

2. A petition that is not filed in the district courtfor the appropriate county:

(a) Shall be deemed to be filed on the date it isreceived by the clerk of the district court in which the petition is initiallylodged; and

(b) Must be transferred by the clerk of that court tothe clerk of the district court for the appropriate county.

3. A petition must not challenge both the validity ofa judgment of conviction or sentence and the computation of time that thepetitioner has served pursuant to that judgment. If a petition improperlychallenges both the validity of a judgment of conviction or sentence and thecomputation of time that the petitioner has served pursuant to that judgment,the district court for the appropriate county shall resolve that portion of thepetition that challenges the validity of the judgment of conviction or sentenceand dismiss the remainder of the petition without prejudice.

(Added to NRS by 1991, 76; A 1999, 145)

NRS 34.740 Petition:Expeditious judicial examination. The originalpetition must be presented promptly to a district judge or a justice of theSupreme Court by the clerk of the court. The petition must be examinedexpeditiously by the judge or justice to whom it is assigned.

(Added to NRS by 1985, 1229; A 1991, 85)

NRS 34.745 Judicialorder to file answer and return; when order is required; form of order; summarydismissal of successive petitions; record of proceeding.

1. If a petition challenges the validity of a judgmentof 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 requiredpursuant to NRS 34.770, a return,

within 45days or a longer period fixed by the judge or justice; or

(b) Take other action that the judge or justice deemsappropriate.

2. If a petition challenges the computation of timethat the petitioner has served pursuant to a judgment of conviction, the judgeor justice shall order the attorney general to:

(a) File:

(1) A response or an answer to the petition; and

(2) A return,

within 45days or a longer period fixed by the judge or justice.

(b) Take other action that the judge or justice deemsappropriate.

3. An order entered pursuant to subsection 1 or 2 mustbe in substantially the following form, with appropriate modifications if theorder is entered by a justice of the Supreme Court:

 

Case No. ...........................................................

Dept. No. ...........................................................

 

INTHE .................. JUDICIAL DISTRICT COURT OF THE

STATEOF NEVADA IN AND FOR THE COUNTY OF ..................

 

..................................................................................

Petitioner,

 

v. ORDER

 

..................................................................................

Respondent.

 

Petitioner filed a petition for a writ of habeas corpuson ..... (month) ..... (day), ..... (year). The court has reviewed the petitionand has determined that a response would assist the court in determiningwhether petitioner is illegally imprisoned and restrained of his liberty.Respondent shall, within 45 days after the date of this order, answer orotherwise respond to the petition and file a return in accordance with theprovisions of NRS 34.360 to 34.830, inclusive.

 

Dated ..... (month) ..... (day), ..... (year)

 

.......................................................

DistrictJudge

 

A copy of the order must be served on the petitioner or hiscounsel, the respondent, the Attorney General and the district attorney of thecounty in which the petitioner was convicted.

4. If the petition is a second or successive petitionchallenging the validity of a judgment of conviction or sentence and if itplainly appears from the face of the petition or an amended petition anddocuments and exhibits that are annexed to it, or from records of the courtthat the petitioner is not entitled to relief based on any of the grounds set forthin subsection 2 of NRS 34.810, the judgeor justice shall enter an order for its summary dismissal and cause thepetitioner to be notified of the entry of the order.

5. If the judge or justice relies on the records ofthe court in entering an order pursuant to this section, those records must bemade a part of the record of the proceeding before entry of the order.

(Added to NRS by 1991, 76; A 1999, 145; 2001, 57)

NRS 34.750 Appointmentof counsel for indigents; pleadings supplemental to petition; response tomotion to dismiss.

1. A petition may allege that the petitioner is unableto pay the costs of the proceedings or to employ counsel. If the court issatisfied that the allegation of indigency is true and the petition is notdismissed summarily, the court may appoint counsel to represent the petitioner.In making its determination, the court may consider, among other things, theseverity of the consequences facing the petitioner and whether:

(a) The issues presented are difficult;

(b) The petitioner is unable to comprehend theproceedings; or

(c) Counsel is necessary to proceed with discovery.

2. If the court determines that the petitioner isunable to pay all necessary costs and expenses incident to the proceedings ofthe trial court and the reviewing court, including court costs, stenographicservices, printing and reasonable compensation for legal services, all costsmust be paid from money appropriated to the office of the State Public Defenderfor that purpose. After appropriations for that purpose are exhausted, moneymust be allocated to the office of the State Public Defender from the Reservefor Statutory Contingency Account for the payment of the costs, expenses andcompensation.

3. After appointment by the court, counsel for thepetitioner may file and serve supplemental pleadings, exhibits, transcripts anddocuments within 30 days after:

(a) The date the court orders the filing of an answerand a return; or

(b) The date of his appointment,

whichever islater. If it has not previously been filed, the answer by the respondent mustbe filed within 15 days after receipt of the supplemental pleadings and includeany response to the supplemental pleadings.

4. The petitioner shall respond within 15 days afterservice to a motion by the State to dismiss the action.

5. No further pleadings may be filed except as orderedby the court.

(Added to NRS by 1985, 1230; A 1987, 1218; 1991, 85,1751, 1824)

NRS 34.760 Contentsof respondents answer; supplemental material.

1. The answer must state whether the petitioner haspreviously applied for relief from his conviction or sentence in any proceedingin a state or federal court, including a direct appeal or a petition for a writof habeas corpus or other postconviction relief.

2. The answer must indicate what transcripts ofpretrial, trial, sentencing and postconviction proceedings are available, whenthese transcripts can be furnished and what proceedings have been recorded andnot transcribed. The respondent shall attach to the answer any portions of thetranscripts, except those in the courts file, which he deems relevant. Thecourt on its own motion or upon request of the petitioner may order additionalportions of existing transcripts to be furnished or certain portions of theproceedings which were not transcribed to be transcribed and furnished. If atranscript is not available or procurable, the court may require a narrativesummary of the evidence to be submitted.

3. If the petitioner appealed from the judgment ofconviction or any adverse judgment or order in a prior petition for a writ ofhabeas corpus or postconviction relief, a copy of the petitioners brief onappeal and any opinion of the appellate court must be filed by the respondentwith the answer.

(Added to NRS by 1985, 1230; A 1991, 86)

NRS 34.770 Judicialdetermination of need for evidentiary hearing: Dismissal of petition orgranting of writ.

1. The judge or justice, upon review of the return,answer and all supporting documents which are filed, shall determine whether anevidentiary hearing is required. A petitioner must not be discharged orcommitted to the custody of a person other than the respondent unless anevidentiary hearing is held.

2. If the judge or justice determines that thepetitioner is not entitled to relief and an evidentiary hearing is notrequired, he shall dismiss the petition without a hearing.

3. If the judge or justice determines that anevidentiary hearing is required, he shall grant the writ and shall set a datefor the hearing.

(Added to NRS by 1985, 1230; A 1991, 86)

NRS 34.780 Applicabilityof Nevada Rules of Civil Procedure; discovery.

1. The Nevada Rules of Civil Procedure, to the extentthat they are not inconsistent with NRS34.360 to 34.830, inclusive, applyto proceedings pursuant to NRS 34.720 to34.830, inclusive.

2. After the writ has been granted and a date set forthe hearing, a party may invoke any method of discovery available under theNevada Rules of Civil Procedure if, and to the extent that, the judge orjustice for good cause shown grants leave to do so.

3. A request for discovery which is available underthe Nevada Rules of Civil Procedure must be accompanied by a statement of theinterrogatories or requests for admission and a list of any documents sought tobe produced.

(Added to NRS by 1985, 1231; A 1987, 1219; 1991, 87)

NRS 34.790 Recordof evidentiary hearing after writ is granted; submission of additionalmaterial.

1. If an evidentiary hearing is required, the judge orjustice may direct that the record be expanded by the parties by the inclusionof additional materials relevant to the determination of the merits of thepetition.

2. The expanded record may include, withoutlimitation, letters which predate the filing of the petition in the districtcourt, documents, exhibits and answers under oath to written interrogatoriespropounded by the judge. Affidavits may be submitted and considered as a partof the record.

3. In any case in which the record is expanded, copiesof proposed letters, documents, exhibits and affidavits must be submitted tothe party against whom they are to be offered, and he must be afforded anopportunity to admit or deny their correctness.

4. The court must require the authentication of anymaterial submitted pursuant to subsection 2 or 3.

(Added to NRS by 1985, 1231)

NRS 34.800 Dismissalof petition for delay in filing.

1. A petition may be dismissed if delay in the filingof the petition:

(a) Prejudices the respondent or the State of Nevada inresponding to the petition, unless the petitioner shows that the petition isbased upon grounds of which he could not have had knowledge by the exercise ofreasonable diligence before the circumstances prejudicial to the Stateoccurred; or

(b) Prejudices the State of Nevada in its ability toconduct a retrial of the petitioner, unless the petitioner demonstrates that afundamental miscarriage of justice has occurred in the proceedings resulting inthe judgment of conviction or sentence.

2. A period exceeding 5 years between the filing of ajudgment of conviction, an order imposing a sentence of imprisonment or adecision on direct appeal of a judgment of conviction and the filing of apetition challenging the validity of a judgment of conviction creates arebuttable presumption of prejudice to the State. In a motion to dismiss thepetition based on that prejudice, the respondent or the State of Nevada mustspecifically plead laches. The petitioner must be given an opportunity torespond to the allegations in the pleading before a ruling on the motion ismade.

(Added to NRS by 1985, 1231; A 1987, 1219; 1991, 87)

NRS 34.810 Additionalreasons for dismissal of petition.

1. The court shall dismiss a petition if the courtdetermines that:

(a) The petitioners conviction was upon a plea of guiltyand the petition is not based upon an allegation that the plea wasinvoluntarily or unknowingly entered or that the plea was entered withouteffective assistance of counsel.

(b) The petitioners conviction was the result of atrial and the grounds for the petition could have been:

(1) Presented to the trial court;

(2) Raised in a direct appeal or a priorpetition for a writ of habeas corpus or postconviction relief; or

(3) Raised in any other proceeding that thepetitioner has taken to secure relief from his conviction and sentence,

unless thecourt finds both cause for the failure to present the grounds and actualprejudice to the petitioner.

2. A second or successive petition must be dismissedif the judge or justice determines that it fails to allege new or differentgrounds for relief and that the prior determination was on the merits or, ifnew and different grounds are alleged, the judge or justice finds that thefailure of the petitioner to assert those grounds in a prior petition constitutedan abuse of the writ.

3. Pursuant to subsections 1 and 2, the petitioner hasthe burden of pleading and proving specific facts that demonstrate:

(a) Good cause for the petitioners failure to presentthe claim or for presenting the claim again; and

(b) Actual prejudice to the petitioner.

Thepetitioner shall include in the petition all prior proceedings in which he challengedthe same conviction or sentence.

4. The court may dismiss a petition that fails toinclude any prior proceedings of which the court has knowledge through therecord of the court or through the pleadings submitted by the respondent.

(Added to NRS by 1985, 1232; A 1989, 457; 1995, 2465;2003, 1478)

NRS 34.820 Procedurein cases where petitioner has been sentenced to death.

1. If a petitioner has been sentenced to death and thepetition is the first one challenging the validity of the petitionersconviction or sentence, the court shall:

(a) Appoint counsel to represent the petitioner; and

(b) Stay execution of the judgment pending dispositionof the petition and the appeal.

2. The petition must include the date upon whichexecution is scheduled, if it has been scheduled. The petitioner is notentitled to an evidentiary hearing unless the petition states that:

(a) Each issue of fact to be considered at the hearinghas not been determined in any prior evidentiary hearing in a state or federalcourt; or

(b) For each issue of fact which has been determined ina prior evidentiary hearing, the hearing was not a full and fair considerationof the issue. The petition must specify all respects in which the hearing wasinadequate.

3. If the petitioner has previously filed a petitionfor relief or for a stay of the execution in the same court, the petition mustbe assigned to the judge or justice who considered the previous matter.

4. The court shall inform the petitioner and hiscounsel that all claims which challenge the conviction or imposition of thesentence must be joined in a single petition and that any matter not includedin 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 thedistrict attorney of the county in which the petitioner was convicted.

6. If a district judge conducts an evidentiaryhearing, a daily transcript must be prepared for the purpose of appellatereview.

7. The judge or justice who considers a petition filedby a petitioner who has been sentenced to death shall make all reasonableefforts to expedite the matter and shall render a decision within 60 days aftersubmission of the matter for decision.

(Added to NRS by 1985, 1232; A 1987, 1219; 1991, 87)

NRS 34.830 Contentsand notice of order finally disposing of petition.

1. Any order that finally disposes of a petition,whether or not an evidentiary hearing was held, must contain specific findingsof fact and conclusions of law supporting the decision of the court.

2. A copy of any decision or order discharging thepetitioner from the custody or restraint under which he is held, committing himto the custody of another person, dismissing the petition or denying therequested relief must be served by the clerk of the court upon the petitionerand his counsel, if any, the respondent, the Attorney General and the districtattorney of the county in which the petitioner was convicted.

3. Whenever a decision or order described in thissection is entered by the district court, the clerk of the court shall preparea notice in substantially the following form and mail a copy of the notice toeach person listed in subsection 2:

 

Case No. ...........................................................

Dept. No. ...........................................................

 

IN THE .......JUDICIAL DISTRICT COURT OF THE

STATE OF NEVADA IN ANDFOR THE COUNTY OF ..................

 

..................................................................................

Petitioner,

 

v. NOTICEOF ENTRY OF

DECISIONOR ORDER

 

..................................................................................

Respondent.

 

PLEASE TAKE NOTICE that on ..... (month) ..... (day)..... (year), the court entered a decision or order in this matter, a true andcorrect copy of which is attached to this notice.

You may appeal to the Supreme Court from the decisionor order of this court. If you wish to appeal, you must file a notice of appealwith the clerk of this court within 33 days after the date this notice ismailed to you. This notice was mailed on ..... (month) ..... (day) ..... (year)

Dated ..... (month) ..... (day) ..... (year)

.......................................................

Clerkof court

(SEAL) By.................................................

Deputy

 

(Added to NRS by 1985, 1233; A 1987, 1220; 1991, 88; 2001, 26)

 


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