[Rev. 11/21/2013 8:59:08 AM--2013]

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

CERTIORARI

NRS 34.010             Writ of certiorari denominated writ of review.

NRS 34.020             Writ may be granted by Supreme Court and district courts; when writ may issue. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.020             Writ may be granted by appellate and district courts; when writ may issue. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

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

NRS 34.050             Court may order return and hearing at any time.

NRS 34.060             Contents of writ.

NRS 34.070             Suspension of proceedings in inferior courts.

NRS 34.080             Service of writ.

NRS 34.090             Extent of review.

NRS 34.100             Perfection of defective return; hearing and judgment.

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

NRS 34.120             Judgment roll; appeal from judgment.

NRS 34.130             Rules of practice in certiorari proceedings.

NRS 34.140             Procedure in new trials and appeals in certiorari proceedings.

MANDAMUS

NRS 34.150             Writ of mandamus denominated writ of mandate.

NRS 34.160             Writ may be issued by Supreme Court and district courts; when writ may issue. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.160             Writ may be issued by appellate and district courts; when writ may issue. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

NRS 34.180             Writ may be made returnable; hearing.

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

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

NRS 34.200             Issuance of alternative or peremptory writ; notice of application; case heard by court whether adverse party appears or not.

NRS 34.210             Adverse party may show cause by answer under oath.

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

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

NRS 34.240             Motion for new trial and new trial.

NRS 34.250             Clerk to transmit verdict to court where writ is pending, after which hearing may be had on application for writ.

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

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

NRS 34.280             Service of writ.

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

NRS 34.300             Rules of practice in mandamus proceedings.

NRS 34.310             Procedure in new trials and appeals in mandamus proceedings.

PROHIBITION

NRS 34.320             Writ of prohibition defined.

NRS 34.330             Writ may be issued by Supreme Court or district court when no plain, speedy and adequate remedy in law. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.330             Writ may be issued by appellate or district court when no plain, speedy and adequate remedy in law. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.340             Writ must be alternative or peremptory; form of writ.

NRS 34.350             Court may order return and hearing at any time.

HABEAS CORPUS

General Provisions

NRS 34.360             Persons who may prosecute writ.

NRS 34.370             Application for writ; verification required; contents; supporting documents.

NRS 34.390             Judge to grant writ without delay; exceptions; effect of writ.

NRS 34.400             Contents of writ. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.400             Contents of writ. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.410             Service of writ.

NRS 34.420             Proceedings upon disobedience of writ.

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

NRS 34.440             Person served must bring body of person in custody; exceptions.

NRS 34.450             Sickness or infirmity of party restrained; hearing may proceed or be adjourned.

NRS 34.470             Answer to return; summary proceeding; attendance of witnesses.

NRS 34.480             If no legal cause shown, judge shall discharge person from custody.

NRS 34.500             Grounds for discharge in certain cases.

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

NRS 34.520             If charge defectively set forth in process or warrant, judge shall examine witnesses and discharge or recommit person.

NRS 34.530             Writ for purposes of bail.

NRS 34.540             Bail in habeas corpus proceedings. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.540             Bail in habeas corpus proceedings. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

NRS 34.560             Judge may order change of custody; enforcement of commitment order stayed; appeal to Supreme Court. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.560             Judge may order change of custody; enforcement of commitment order stayed; appeal. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

NRS 34.575             Appeal from order of district court granting or denying writ. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.575             Appeal from order of district court granting or denying writ. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.580             Defect of form in writ immaterial.

NRS 34.590             Cases where imprisonment after discharge is permitted.

NRS 34.600             In certain cases warrant may issue instead of writ.

NRS 34.610             Judge may include in warrant order for arrest of person charged with illegal detention.

NRS 34.620             Execution of warrant.

NRS 34.630             Return, answer and hearing on warrant.

NRS 34.640             Party may be discharged or remanded.

NRS 34.650             Writ of process may issue on Sunday or nonjudicial day.

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

NRS 34.670             Damages recoverable for failure to issue or obey writ.

NRS 34.680             Penalties for custodian or accessory disobeying or avoiding writ.

 

Petitions for Pretrial Relief

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

NRS 34.710             Limitations on submission and consideration of pretrial petition. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.710             Limitations on submission and consideration of pretrial petition. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

 

Petitions for Postconviction Relief

NRS 34.720             Scope of provisions.

NRS 34.722             “Petition” defined.

NRS 34.724             Persons who may file petition; effect of filing.

NRS 34.726             Limitations on time to file; stay of sentence. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.726             Limitations on time to file; stay of sentence. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

NRS 34.735             Petition: Form. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.735             Petition: Form. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

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

NRS 34.740             Petition: Expeditious judicial examination. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.740             Petition: Expeditious judicial examination. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.745             Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.745             Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.750             Appointment of counsel for indigents; pleadings supplemental to petition; response to motion to dismiss.

NRS 34.760             Contents of respondent’s answer; supplemental material.

NRS 34.770             Judicial determination of need for evidentiary hearing: Dismissal of petition or granting of writ.

NRS 34.780             Applicability of Nevada Rules of Civil Procedure; discovery.

NRS 34.790             Record of evidentiary hearing after writ is granted; submission of additional material.

NRS 34.800             Dismissal of petition for delay in filing.

NRS 34.810             Additional reasons for dismissal of petition.

NRS 34.820             Procedure in cases where petitioner has been sentenced to death.

NRS 34.830             Contents and notice of order finally disposing of petition. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

NRS 34.830             Contents and notice of order finally disposing of petition. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

_________

 

CERTIORARI

      NRS 34.010  Writ of certiorari denominated writ of review.  The writ of certiorari may be denominated the writ of review.

      [1911 CPA § 741; RL § 5683; NCL § 9230]

      NRS 34.020  Writ may be granted by Supreme Court and district courts; when writ may issue. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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]

      NRS 34.020  Writ may be granted by appellate and district courts; when writ may issue. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      1.  This writ may be granted, on application, by the Supreme Court, the Court of Appeals, 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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution 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]—(NRS A 2013, 1733, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.030  Application for writ made on affidavit; notice to adverse party may be required.  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]

      NRS 34.040  Writ may be directed to inferior tribunal, board or officer.  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]

      NRS 34.050  Court may order return and hearing at any time.  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]

      NRS 34.060  Contents of writ.  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]

      NRS 34.070  Suspension of proceedings in inferior courts.  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]

      NRS 34.080  Service of writ.  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]

      NRS 34.090  Extent of review.  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]

      NRS 34.100  Perfection of defective return; hearing and judgment.  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]

      NRS 34.110  Copy of judgment to be transmitted to inferior tribunal, board or officer.  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]

      NRS 34.120  Judgment roll; appeal from judgment.  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]

      NRS 34.130  Rules of practice in certiorari proceedings.  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]

      NRS 34.140  Procedure in new trials and appeals in certiorari proceedings.  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

      NRS 34.150  Writ of mandamus denominated writ of mandate.  The writ of mandamus may be denominated the writ of mandate.

      [1911 CPA § 752; RL § 5694; NCL § 9241]

      NRS 34.160  Writ may be issued by Supreme Court and district courts; when writ may issue. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  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 the party is entitled and from which the party 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]

      NRS 34.160  Writ may be issued by appellate and district courts; when writ may issue. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  The writ may be issued by the Supreme Court, the Court of Appeals, 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 the party is entitled and from which the party 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]—(NRS A 2013, 1734, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.170  Writ to issue when no plain, speedy and adequate remedy in law.  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]

      NRS 34.180  Writ may be made returnable; hearing.  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)

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

      1.  If the applicant is alleging an unconstitutional prior restraint of the applicant’s 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)

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

      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 the party 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 the party has not done as commanded shall be omitted, and a return day shall be inserted.

      [1911 CPA § 755; RL § 5697; NCL § 9244]

      NRS 34.200  Issuance of alternative or peremptory writ; notice of application; case heard by court whether adverse party appears or not.  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]

      NRS 34.210  Adverse party may show cause by answer under oath.  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]

      NRS 34.220  If answer raises essential question of fact, court may order jury trial.  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 the applicant.

      [1911 CPA § 758; RL § 5700; NCL § 9247]

      NRS 34.230  Applicant may object to sufficiency of answer or countervail it by proof.  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]

      NRS 34.240  Motion for new trial and new trial.  If either party is dissatisfied with the verdict of the jury, the party 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]

      NRS 34.250  Clerk to transmit verdict to court where writ is pending, after which hearing may be had on application for writ.  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]

      NRS 34.260  Court may grant time for reply to answer; hearing by court.  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]

      NRS 34.270  Recovery of damages by applicant; execution may issue to enforce judgment.  If judgment be given for the applicant, the applicant shall recover the damages which the applicant 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]

      NRS 34.280  Service of writ.

      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]

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

      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 such willful disobedience shall also be deemed guilty of a misdemeanor in office.

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

      NRS 34.300  Rules of practice in mandamus proceedings.  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)

      NRS 34.310  Procedure in new trials and appeals in mandamus proceedings.  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

      NRS 34.320  Writ of prohibition defined.  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]

      NRS 34.330  Writ may be issued by Supreme Court or district court when no plain, speedy and adequate remedy in law. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  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)

      NRS 34.330  Writ may be issued by appellate or district court when no plain, speedy and adequate remedy in law. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  The writ may be issued only by the Supreme Court, the Court of Appeals 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; 2013, 1734, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.340  Writ must be alternative or peremptory; form of writ.

      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 the party 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]

      NRS 34.350  Court may order return and hearing at any time.  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

      NRS 34.360  Persons who may prosecute writ.  Every person unlawfully committed, detained, confined or restrained of his or her 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)

      NRS 34.370  Application for writ; verification required; contents; supporting documents.

      1.  A petition for a writ of habeas corpus must be verified by the petitioner or the petitioner’s counsel. If the petition is verified by counsel, counsel shall also verify that the petitioner personally authorized counsel 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 the petitioner’s liberty, the officer or other person by whom the petitioner is confined or restrained, and the place where the petitioner 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 the petitioner’s 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)

      NRS 34.390  Judge to grant writ without delay; exceptions; effect of writ.

      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 the petitioner is held. The writ requires only the production of the petitioner to determine the legality of the petitioner’s 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  Contents of writ. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  The writ must be directed to the person who has the petitioner in custody or under restraint, commanding the person 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)

      NRS 34.400  Contents of writ. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  The writ must be directed to the person who has the petitioner in custody or under restraint, commanding the person to have the body of the petitioner produced before the district court, Court of Appeals 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; 2013, 1734, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.410  Service of writ.

      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 the sheriff’s deputy, and shall be served by the sheriff or the sheriff’s deputy without delay upon such person by delivering the same to the person.

      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 the officer’s or person’s 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]

      NRS 34.420  Proceedings upon disobedience of writ.  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 the sheriff or elisor forthwith to apprehend such person and bring the person immediately before such judge; and upon being so brought the person shall be committed to the jail of the county until the person makes due return to such writ, or be otherwise legally discharged.

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

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

      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 the respondent’s power or restraint. If the respondent has the petitioner in the respondent’s custody or power, or under the respondent’s restraint, the respondent 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 the respondent’s power or custody or under the respondent’s 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 the respondent’s 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)

      NRS 34.440  Person served must bring body of person in custody; exceptions.  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 the person’s or officer’s custody or under the person’s or officer’s 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  Sickness or infirmity of party restrained; hearing may proceed or be adjourned.

      1.  Whenever, from sickness or infirmity of the party directed to be produced by any writ of habeas corpus, the party cannot, without danger, be brought before the judge, the officer or person in whose custody or power the party is may state that fact in the officer’s or person’s 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]

      NRS 34.470  Answer to return; summary proceeding; attendance of witnesses.

      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 the petitioner’s imprisonment or detention is unlawful or that the petitioner is entitled to 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)

      NRS 34.480  If no legal cause shown, judge shall discharge person from custody.  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 the party is held.

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

      NRS 34.500  Grounds for discharge in certain cases.  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 the petitioner.

      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 chapters 484A to 484E, inclusive, 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 the petitioner’s 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)

      NRS 34.510  Defect of form in warrant or commitment not ground for discharge.  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]

      NRS 34.520  If charge defectively set forth in process or warrant, judge shall examine witnesses and discharge or recommit person.  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, the judge shall discharge such prisoner, let the prisoner to bail, if the offense be bailable, or recommit the prisoner to custody, as may be just and legal.

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

      NRS 34.530  Writ for purposes of bail.  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 the person’s petition, without alleging that the person is illegally confined.

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

      NRS 34.540  Bail in habeas corpus proceedings. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  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)

      NRS 34.540  Bail in habeas corpus proceedings. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  Any Supreme Court justice, judge of the Court of Appeals 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 of the Court of Appeals, 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, judge of the Court of Appeals, 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; 2013, 1734, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.550  Judge to remand to custody if party not entitled to discharge or is not bailed.  If a party brought before the judge on the return of the writ is not entitled to discharge, and is not bailed where such bail is allowable, the judge shall remand the party to custody or place the party under the restraint from which the party was taken, if the person under whose custody or restraint the party was is legally entitled thereto.

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

      NRS 34.560  Judge may order change of custody; enforcement of commitment order stayed; appeal to Supreme Court. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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)

      NRS 34.560  Judge may order change of custody; enforcement of commitment order stayed; appeal. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution.

      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; 2013, 1734, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

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

      1.  Commit the party to the custody of the sheriff of the county; or

      2.  Place the party in such care or under such custody as the party’s age or circumstances may require.

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

      NRS 34.575  Appeal from order of district court granting or denying writ. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      1.  An applicant who, after conviction or while no criminal action is pending against the applicant, 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 a petitioner 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)

      NRS 34.575  Appeal from order of district court granting or denying writ. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      1.  An applicant who, after conviction or while no criminal action is pending against the applicant, has petitioned the district court for a writ of habeas corpus and whose application for the writ is denied, may appeal to the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution 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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution 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 a petitioner 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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution, 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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court, it stands submitted without further briefs or oral argument unless the appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court otherwise orders.

      (Added to NRS by 1991, 74; A 2013, 1735, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.580  Defect of form in writ immaterial.  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 the party, and the judge before whom the party is to be brought.

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

      NRS 34.590  Cases where imprisonment after discharge is permitted.  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 the person 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 person 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]

      NRS 34.600  In certain cases warrant may issue instead of writ.  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]

      NRS 34.610  Judge may include in warrant order for arrest of person charged with illegal detention.  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]

      NRS 34.620  Execution of warrant.  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]

      NRS 34.630  Return, answer and hearing on warrant.  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]

      NRS 34.640  Party may be discharged or remanded.  If such party be held under illegal restraint or custody, the party shall be discharged, and if not, the party 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]

      NRS 34.650  Writ of process may issue on Sunday or nonjudicial day.  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]

      NRS 34.660  Clerk to issue writs, warrants, processes and subpoenas; when returnable.  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]

      NRS 34.670  Damages recoverable for failure to issue or obey writ.  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, the judge, officer or person 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]

      NRS 34.680  Penalties for custodian or accessory disobeying or avoiding writ.

      1.  Any person having in his or her custody or under his or her 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 the person under the power or control of another or shall conceal or exchange the place of the person’s confinement or restraint, or shall remove the person 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

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

      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)

      NRS 34.710  Limitations on submission and consideration of pretrial petition. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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)

      NRS 34.710  Limitations on submission and consideration of pretrial petition. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 the Court of Appeals for a writ of habeas corpus and the application is entertained by the Court of Appeals, 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.  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 Court of Appeals, 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; 2013, 1735, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

Petitions for Postconviction Relief

      NRS 34.720  Scope of provisions.  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 the petitioner has served pursuant to a judgment of conviction.

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

      NRS 34.722  “Petition” defined.  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)

      NRS 34.724  Persons who may file petition; effect of filing.

      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 the person 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 the person 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 the person has served pursuant to a judgment of conviction.

      (Added to NRS by 1991, 75)

      NRS 34.726  Limitations on time to file; stay of sentence. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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)

      NRS 34.726  Limitations on time to file; stay of sentence. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 appellate court of competent jurisdiction pursuant to the rules fixed by the Supreme Court pursuant to Section 4 of Article 6 of the Nevada Constitution 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; A 2013, 1736, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

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

      1.  A petition must be verified by the petitioner or the petitioner’s counsel. If the petition is verified by counsel, counsel shall also verify that the petitioner personally authorized counsel 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)

      NRS 34.735  Petition: Form. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  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) Guilty but mentally ill ........

       (d) Nolo contendere ........

       9.  If you entered a plea of guilty or guilty but mentally ill 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 or guilty but mentally ill was negotiated, give details:       

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

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

       10.  If you were found guilty or guilty but mentally ill 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 petitioner 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 the undersigned is the petitioner named in the foregoing petition and knows the contents thereof; that the pleading is true of the undersigned’s own knowledge, except as to those matters stated on information and belief, and as to such matters the undersigned 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; 2007, 1429)

      NRS 34.735  Petition: Form. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  A petition must be in substantially the following form, with appropriate modifications if the petition is filed in the Court of Appeals or 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) Guilty but mentally ill ........

       (d) Nolo contendere ........

       9.  If you entered a plea of guilty or guilty but mentally ill 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 or guilty but mentally ill was negotiated, give details:       

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

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

       10.  If you were found guilty or guilty but mentally ill 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 petitioner 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 the undersigned is the petitioner named in the foregoing petition and knows the contents thereof; that the pleading is true of the undersigned’s own knowledge, except as to those matters stated on information and belief, and as to such matters the undersigned 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; 2007, 1429; 2013, 1736, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

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

      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)

      NRS 34.740  Petition: Expeditious judicial examination. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  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)

      NRS 34.740  Petition: Expeditious judicial examination. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]  The original petition must be presented promptly to a district judge, a judge of the Court of Appeals 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; 2013, 1741, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.745  Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 petitioner’s 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

 

Ê A copy of the order must be served on the petitioner or the petitioner’s 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)

      NRS 34.745  Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 judge of the Court of Appeals or 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 petitioner’s 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

 

Ê A copy of the order must be served on the petitioner or the petitioner’s 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; 2013, 1741, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)

      NRS 34.750  Appointment of counsel for indigents; pleadings supplemental to petition; response to motion to dismiss.

      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 counsel’s 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)

      NRS 34.760  Contents of respondent’s answer; supplemental material.

      1.  The answer must state whether the petitioner has previously applied for relief from the petitioner’s 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 the respondent 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)

      NRS 34.770  Judicial determination of need for evidentiary hearing: Dismissal of petition or granting of writ.

      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, the judge or justice shall dismiss the petition without a hearing.

      3.  If the judge or justice determines that an evidentiary hearing is required, the judge or justice shall grant the writ and shall set a date for the hearing.

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

      NRS 34.780  Applicability of Nevada Rules of Civil Procedure; discovery.

      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)

      NRS 34.790  Record of evidentiary hearing after writ is granted; submission of additional material.

      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 the party 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)

      NRS 34.800  Dismissal of petition for delay in filing.

      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 the petitioner 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)

      NRS 34.810  Additional reasons for dismissal of petition.

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

      (a) The petitioner’s conviction was upon a plea of guilty or guilty but mentally ill 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 the petitioner’s 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 the petitioner 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; 2007, 1435)

      NRS 34.820  Procedure in cases where petitioner has been sentenced to death.

      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 the petitioner’s 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)

      NRS 34.830  Contents and notice of order finally disposing of petition. [Effective through December 31, 2014, and after that date unless the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 the petitioner is held, committing the petitioner 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 the petitioner’s 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)

      NRS 34.830  Contents and notice of order finally disposing of petition. [Effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election.]

      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 the petitioner is held, committing the petitioner 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 the petitioner’s 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 appellate court of competent jurisdiction pursuant to the rules fixed by 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; 2013, 1743, effective January 1, 2015, if the provisions of Senate Joint Resolution No. 14 (2011) are approved and ratified by the voters at the 2014 General Election)