WRITS; PETITION TO ESTABLISH FACTUAL INNOCENCE

Nev. Rev. Stat. 34
in effect

Nev. Rev. Stat. § 34.005 Prosecuting agency” defined.

As used in this chapter, “prosecuting agency” means: 1. The district attorney of the county in which the judgment of conviction or sentence being challenged in a petition for a writ of habeas corpus was obtained, if the district attorney or a deputy district attorney prosecuted the petitioner in the original proceeding which led to the judgment of conviction or sentence; or 2. The Attorney General, if the Attorney General or a deputy attorney general prosecuted the petitioner in the original proceeding which led to the judgment of conviction or sentence being challenged in a petition for a writ of habeas corpus.

Nev. Rev. Stat. § 34.010 Writ of certiorari denominated writ of review.

The writ of certiorari may be denominated the writ of review.

Nev. Rev. Stat. § 34.020 Writ may be granted by appellate and district courts; when writ may issue.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.150 Writ of mandamus denominated writ of mandate.

The writ of mandamus may be denominated the writ of mandate.

Nev. Rev. Stat. § 34.160 Writ may be issued by appellate and district courts; when writ may issue.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.330 Writ may be issued by appellate or district court when no plain, speedy and adequate remedy in law.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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 judgment of conviction or sentence. Argument, citations and other supporting documents are unnecessary.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.400 Contents of writ.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.540 Bail in habeas corpus proceedings.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.560 Judge may order change of custody; enforcement of commitment order stayed; appeal.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.575 Appeal from order of district court granting or denying writ.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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 agency.

Nev. Rev. Stat. § 34.710 Limitations on submission and consideration of pretrial petition.

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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 34.722 “Petition” defined.

As used in NRS 34.720 to 34.830, inclusive, unless the context otherwise requires, “petition” means a petition to obtain relief from a judgment of conviction or sentence or to challenge the computation of time a person has served filed pursuant to NRS 34.724.

Nev. Rev. Stat. § 34.724 Persons who may file petition; no filing fee required; 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, after exhausting all available administrative remedies, claims that the time the person has served pursuant to the judgment of conviction has been improperly computed may file a petition to obtain relief from the judgment of conviction or sentence or to challenge the computation of time that the person has served. A person must not be required to pay a filing fee to file such a petition. 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 judgment of 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, after all available administrative remedies have been exhausted. 3. For the purposes of this section, a motion to withdraw a plea of guilty, guilty but mentally ill or nolo contendere pursuant to NRS 176.165 that is made after sentence is imposed or imposition of sentence is suspended is a remedy which is incident to the proceedings in the trial court if: (a) The person has not filed a prior motion to withdraw the plea and has not filed a prior petition; (b) The motion is filed within 1 year after the date on which the person was convicted, unless the person pleads specific facts demonstrating that some impediment external to the defense precluded bringing the motion earlier; (c) At the time the person files the motion to withdraw the plea, the person is not incarcerated for the charge for which the person entered the plea; and (d) The motion is not barred by the doctrine of laches. A motion filed more than 5 years after the date on which the person was convicted creates a rebuttable presumption of prejudice to the State on the basis of laches. 4. The court shall not appoint counsel to represent a person for the purpose of subsection 3.

Nev. Rev. Stat. § 34.726 Limitations on time to file; stay of sentence.

1. Unless there is good cause shown for delay, a petition that challenges the validity of a judgment of conviction 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.

Nev. Rev. Stat. § 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. A petition that challenges: (a) The computation of time that the petitioner has served pursuant to a judgment of conviction must be titled “Petition for Writ of Habeas Corpus (Computation of Time)” and be in substantially the form set forth in NRS 34.733 . (b) The validity of a judgment of conviction or sentence must be titled “Petition for Writ of Habeas Corpus (Validity of Judgment of Conviction or Sentence)” and be in substantially the form set forth in NRS 34.735 . 3. A petition must name as respondent and be served by mail or electronic means upon the officer or other person by whom the petitioner is confined or restrained. A copy of the petition must be served by mail or electronic means upon the Attorney General and, if applicable, any other prosecuting agency. 4. 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 judgment of 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. 5. No hearing upon the petition may be set until the requirements of NRS 34.740 to 34.770 , inclusive, are satisfied.

Nev. Rev. Stat. § 34.731 Petition: Service or filing by electronic means; response or answer may be filed electronically; decision or order and notice of decision or order may be filed or served electronically; acceptance by clerk.

1. A petition that challenges the computation of time that the petitioner has served pursuant to a judgment of conviction or that challenges the validity of a judgment of conviction may be served by electronic means upon the officer or other person by whom the petitioner is confined or restrained. A copy of the petition may also be served by electronic means upon the Attorney General or any other prosecuting agency. 2. A petition filed with the clerk of the district court for the county in which the conviction occurred pursuant to NRS 34.738 may be filed electronically. 3. A response or answer to a petition filed by a prosecuting agency pursuant to NRS 34.745 may be filed electronically. 4. A decision or order prepared by the court pursuant to NRS 34.830 may be filed electronically. A copy of the decision or order may be served by electronic means upon the petitioner and the petitioner’s counsel. A notice of a decision or order may be electronically delivered to the petitioner by the clerk of the court. 5. The clerk of the court may accept a petition and a response or answer to the petition that is filed electronically. A petition, response or answer that is filed electronically may be converted into a printed document and served upon a respondent or petitioner, as applicable, in the same manner as a petition, response or answer that is not filed electronically. 6. A petition, response, answer, order or decision that is filed electronically shall be deemed to be filed on the date that it is filed electronically if it is filed not later than 11:59 p.m. on that date.

Nev. Rev. Stat. § 34.733 Petition: Form for challenging computation of time that petitioner has served.

A petition for a writ of habeas corpus that challenges the computation of time that the petitioner has served pursuant to a judgment of conviction 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 (COMPUTATION OF TIME) ............................................................................ Respondent. INSTRUCTIONS: (1) Use this form if you are currently serving a sentence pursuant to a judgment of conviction and are challenging the postconviction computation of your time served, the revocation of your parole or the forfeiture of your credits. Do not use this form if you are requesting relief from a judgment of conviction. (2) This petition must be legibly handwritten or typewritten, signed by the petitioner and verified. (3) You must include facts which support your grounds for relief. You do not need to cite law or authorities. You may submit additional pages if necessary with this form. (4) If you want an attorney appointed, you must complete an Affidavit in Support of Request to Proceed in Forma Pauperis. An authorized officer at the prison must complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. (5) 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: (a) Within its custody, name the Director of the Department of Corrections. (b) Under the supervision of the Division of Parole and Probation of the Department of Public Safety, name the probation officer or parole officer assigned to you at this time. (6) You must include all grounds for relief which you may have regarding the computation of time served on your sentence. Failure to raise all grounds in this petition may preclude you from filing future petitions challenging the same computation of time issue. (7) You must allege specific facts supporting the claims in this petition. Failure to allege specific facts rather than just conclusions may cause your petition to be dismissed. (8) 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 are incarcerated, or, if you are incarcerated outside this State, the First Judicial District Court in and for Carson City. One copy must be mailed or electronically delivered to the respondent and one copy must be mailed or electronically delivered to the Attorney General’s Office. 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 that sentenced you: ....................................... .......................................................................................................................................... 3. Case number: .................................................................................................. 4. Date of judgment of conviction: .................................................................. 5. (a) Nature of the underlying offense involved in the sentence being challenged in this petition: (b) Date on which the underlying offense involved in the sentence being challenged in this petition was committed: 6. Length of sentence being challenged in this petition:............................... .......................................................................................................................................... 7. Are you presently serving a sentence other than the sentence being challenged in this petition? Yes ........ No ........ If “yes,” list each crime, case number and sentence being served at this time: .......................................................................................................................................... .......................................................................................................................................... .......................................................................................................................................... 8. Have your sentences been aggregated? Yes ........ No ........ If “yes,” list each case number and sentence, the terms of which have been aggregated: .......................................................................................................................................... .......................................................................................................................................... 9. Do you have any future sentences to serve after you complete the sentence being challenged in this petition (whether in the same judgment or a different judgment)? Yes ........ No ........ If “yes,” specify where and when it is to be served, if you know: ....................... 10. Have you had a parole hearing relating to the sentence you are challenging in this petition? Yes ........ No ........ If “yes,” give the following information: (a) Date of most recent parole hearing: ............................................................ (b) Outcome of most recent parole hearing: .................................................... (c) Date on which the rehearing is to be held, if you know: ......................... 11. Are you challenging a decision of the State Board of Parole Commissioners to revoke your parole? Yes ........ No ........ If “yes,” give the following information: (a) Date of revocation hearing: ........................................................................... (b) Date on which your next parole hearing is scheduled, if you know: .... (c) Did you forfeit any credit as a result of the revocation of parole? Yes ........ No ........ (d) If you forfeited any credit as a result of the revocation of parole, has any of the credit forfeited been restored? Yes ........ No ........ 12. Are you challenging a disciplinary sanction? Yes ........ No ........ If “yes,” give the following information: (a) Date on which you were served with a notice of the disciplinary offense charged: (b) Date on which the disciplinary hearing involving the charged offense was conducted: (c) Did you forfeit any credit as a result of the disciplinary hearing? Yes ........ No ........ (d) If you forfeited any credit as a result of the disciplinary hearing, has any of the credit forfeited been restored? Yes ........ No ........ 13. Have you previously filed any petitions, applications or motions with respect to the challenge raised in this petition in any court, state or federal? Yes ........ No ........ 14. If your answer to No. 13 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 or subsequent additional petitions, applications or motions, give the same information as above, list them on a separate sheet and attach. (c) 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 or subsequent petitions, applications or motions? Yes ........ No ........ Citation or date of decision: .................................................................... (d) 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.) .......................................................................................................................................... 15. Do you have any petition or appeal now pending in any court, state or federal, regarding the computation of time you are challenging in this petition? Yes ........ No ........ If “yes,” give the following information: (a) Name of court: ................................................................................................ (b) Case number: ................................................................................................... 16. Have you filed a grievance raising the same computation of time issue as you are raising in this petition? Yes ........ No ........ 17. If your answer to No. 16 was “yes,” answer the following: (a) Number assigned to your grievance: ........................................................... (b) Result of grievance: ....................................................................................... (c) Did you complete all levels of the grievance procedure? Yes ........ No ........ (d) If you did not complete all levels of the grievance procedure, explain briefly why you did not: .......................................................................................................................................... 18. If any of the grounds being raised in this petition have been submitted for review and resolution by way of the grievance process, 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.) ................................................... .......................................................................................................................................... .......................................................................................................................................... 19. State concisely every ground on which you claim that the computation of time you have served has been improperly computed. Summarize briefly the facts supporting each ground. If necessary you may attach pages stating additional grounds and facts supporting the 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 (PLEASE SIGN THE APPROPRIATE METHOD YOU WISH TO USE) 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 (COMPUTATION OF TIME) addressed to: ............................................................................................................... Respondent prison or jail official ............................................................................................................... Address ............................................................................................................... Attorney General 100 North Carson Street Carson City, Nevada 89701 ............................................................... Signature of Petitioner CERTIFICATE OF SERVICE BY ELECTRONIC MEANS I, ................................, hereby certify that on this ........ day of the month of ........ of the year ........, I electronically delivered a true and correct copy of the foregoing PETITION FOR WRIT OF HABEAS CORPUS (COMPUTATION OF TIME) addressed to: ............................................................................................................... Respondent prison or jail official ............................................................................................................... Electronic mail address or other electronic means for service ............................................................................................................... Attorney General 100 North Carson Street Carson City, Nevada 89701 ............................................................... Signature of Petitioner

Nev. Rev. Stat. § 34.735 Petition: Form for challenging validity of judgment of conviction or sentence.

A petition that challenges the validity of a judgment of conviction or sentence 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 (VALIDITY OF JUDGMENT OF CONVICTION OR SENTENCE) .......................................................... Respondent. INSTRUCTIONS: (1) Use this form if you are currently serving a sentence pursuant to a judgment of conviction and are seeking relief from your judgment of conviction or sentence. Do not use this form if you are challenging the postconviction computation of your time served. (2) This petition must be legibly handwritten or typewritten, signed by the petitioner and verified. (3) Additional pages are not permitted except where noted or with respect to the facts that support your grounds for relief. You are not required to cite to law or authorities. If you submit briefs or arguments, they must be in a separate memorandum. (4) If you want an attorney appointed, you must complete an Affidavit in Support of Request to Proceed in Forma Pauperis. An authorized officer at the prison must complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. (5) 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. (6) You must include all grounds for relief which you may have regarding your judgment of conviction or sentence. Failure to raise all grounds in this petition may preclude you from filing future petitions challenging your judgment of conviction and sentence. (7) You must allege specific facts supporting the claims in this petition. 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. (8) 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 or electronically delivered to the respondent, one copy to the Attorney General’s Office, and one copy to the prosecuting agency. 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 being challenged: .......................................................................................................................................... 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 judgment of conviction other than the judgment of conviction you are challenging in this petition? Yes ........ No ........ If “yes,” list each crime, case number and sentence being served at this time: . .......................................................................................................................................... .......................................................................................................................................... 7. Nature of offense involved in the judgment of 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, 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 of conviction you are challenging in this petition? 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 judgment of conviction and on direct appeal: ............................................................................................................ .......................................................................................................................................... 22. Do you have any future sentences to serve after you complete the sentence imposed by the judgment of conviction you are challenging in this petition? 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 the 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 (PLEASE SIGN THE APPROPRIATE METHOD OF SERVICE YOU WISH TO USE) 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 (VALIDITY OF JUDGMENT OF CONVICTION OR SENTENCE) addressed to: ............................................................................................................... Respondent prison or jail official ............................................................................................................... Address ............................................................................................................... Attorney General 100 North Carson Street Carson City, Nevada 89701 ............................................................................................................... District Attorney of County of Conviction ............................................................................................................... Address ............................................................... Signature of Petitioner CERTIFICATE OF SERVICE BY ELECTRONIC MEANS I, ................................, hereby certify that on this ........ day of the month of ........ of the year ........, I electronically delivered a true and correct copy of the foregoing PETITION FOR WRIT OF HABEAS CORPUS (VALIDITY OF JUDGMENT OF CONVICTION OR SENTENCE) addressed to: ............................................................................................................... Respondent prison or jail official ............................................................................................................... Electronic mail address or other electronic means for service ............................................................................................................... Attorney General 100 North Carson Street Carson City, Nevada 89701 ............................................................................................................... District Attorney of County of Conviction ............................................................................................................... Address ............................................................... Signature of Petitioner

Nev. Rev. Stat. § 34.738 Petition: Filing in appropriate county; limitation on scope.

1. A petition that challenges the validity of a judgment of 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: (a) The district court for the county in which the petitioner is incarcerated, if, at the time the petition is filed, the petitioner is incarcerated in this State; (b) The district court for the county in which the petitioner resides, if, at the time the petition is filed, the petitioner has been released from the custody of the Department of Corrections and resides in this State; or (c) The First Judicial District Court in and for Carson City, if, at the time the petition is filed, the petitioner: (1) Is incarcerated outside this State while serving a term of imprisonment imposed by a court of this State; or (2) Has been released from the custody of the Department of Corrections and resides outside this State. 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 a judgment of conviction. 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 a judgment of conviction, 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.

Nev. Rev. Stat. § 34.740 Petition: Expeditious judicial examination.

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.

Nev. Rev. Stat. § 34.745 Judicial order to file response or answer; when order is required; form of order; summary dismissal of successive petitions; record of proceeding.

1. The judge or justice shall order the prosecuting agency to: (a) File a response or an answer to the petition 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. An order entered pursuant to subsection 1 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 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, if applicable, any other prosecuting agency. 3. 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 3 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. 4. 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.

Nev. Rev. Stat. § 34.750 Appointment of counsel for indigents; payment of costs incident to proceedings; 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 Department of Indigent Defense Services for that purpose. After appropriations for that purpose are exhausted, money must be allocated to the Department of Indigent Defense Services 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 a response or answer; or (b) The date of counsel’s appointment, Ê whichever is later. If it has not previously been filed, the response or 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.

Nev. Rev. Stat. § 34.760 Contents of respondent’s response or answer; supplemental material.

1. A response or answer must: (a) State plainly and unequivocally whether the respondent has or had the petitioner in custody or under the respondent’s power or restraint and, if the respondent: (1) Has the petitioner in custody or under his or her power or restraint at the time of filing the response or answer, set forth with specificity the basis for custody, including, without limitation, the authority and cause of the imprisonment or restraint. (2) Had the petitioner in custody or under the respondent’s power or restraint but no longer has the petitioner in custody or under the respondent’s power or restraint, state particularly to whom, at what time and place, for what cause and by what authority the transfer took place. (b) Indicate whether the petitioner has previously applied for relief from the petitioner’s judgment of 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. If a petition challenges the validity of a judgment of conviction or sentence, the response or 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 response or 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 a petition challenges the computation of time that the petitioner has served pursuant to a judgment of conviction, the respondent shall attach a copy of the judgment of conviction to the response or answer. 4. If the petitioner appealed the judgment of conviction or sentence or any adverse judgment or order in a prior petition, a copy of the petitioner’s brief on appeal and any opinion of the appellate court must be filed by the respondent with the response or answer.

Nev. Rev. Stat. § 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 response or 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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.

Nev. Rev. Stat. § 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. 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.

Nev. Rev. Stat. § 34.810 Additional reasons for dismissal of petition.

1. The court shall dismiss a petition that challenges the validity of a judgment of conviction or sentence 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 judgment of conviction and sentence, Ê unless the court finds both cause for the failure to present the grounds and actual prejudice to the petitioner. 2. The court shall dismiss a petition that challenges the computation of time served pursuant to a judgment of conviction without prejudice if the court determines that the petitioner did not exhaust all available administrative remedies to resolve such a challenge as required by NRS 34.724 . 3. 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. 4. Pursuant to subsections 1 and 3, 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 judgment of conviction or sentence. 5. 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.

Nev. Rev. Stat. § 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 judgment of 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 judgment of 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 and the prosecuting agency. 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.

Nev. Rev. Stat. § 34.830 Contents and notice of order finally disposing of petition.

1. Any order that finally disposes of a petition, whether or not an evidentiary hearing was held, must contain specific 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 and the prosecuting agency. 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 or electronically deliver 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

Nev. Rev. Stat. § 34.900 Definitions.

As used in NRS 34.900 to 34.990, inclusive, unless the context otherwise requires, the words and terms defined in NRS 34.910, 34.920 and 34.930 have the meanings ascribed to them in those sections.

Nev. Rev. Stat. § 34.910 “Bona fide issue of factual innocence” defined.

“Bona fide issue of factual innocence” means that newly discovered evidence presented by the petitioner, if credible, would clearly establish the factual innocence of the petitioner.

Nev. Rev. Stat. § 34.920 “Factual innocence” defined.

“Factual innocence” means that a person did not: 1. Engage in the conduct for which he or she was convicted; 2. Engage in conduct constituting a lesser included or inchoate offense of the crime for which he or she was convicted; 3. Commit any other crime arising out of or reasonably connected to the facts supporting the indictment or information upon which he or she was convicted; and 4. Commit the conduct charged by the State under any theory of criminal liability alleged in the indictment or information.

Nev. Rev. Stat. § 34.930 “Newly discovered evidence” defined.

“Newly discovered evidence” means evidence that was not available to a petitioner at trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial and which is material to the determination of the issue of factual innocence, including, without limitation: 1. Evidence that was discovered before or during the applicable period for any direct appeal or postconviction petition for a writ of habeas corpus pursuant to this chapter that served in whole or in part as the basis to vacate or reverse the petitioner’s conviction; 2. Evidence that supports the claims within a postconviction petition for a writ of habeas corpus that is pending at the time of the court’s determination of factual innocence pursuant to NRS 34.900 to 34.990 , inclusive; or 3. Relevant forensic scientific evidence, other than the expert opinion of a psychologist, psychiatrist or other mental health professional, that was not available at the time of trial or during the resolution by the trial court of any motion to withdraw a guilty plea or motion for new trial, or that undermines materially forensic scientific evidence presented at trial. Forensic scientific evidence is considered to be undermined if new research or information exists that repudiates the foundational validity of scientific evidence or testimony or the applied validity of a scientific method or technique. As used in this subsection: (a) “Applied validity” means the reliability of a scientific method or technique in practice. (b) “Foundational validity” means the reliability of a scientific method to be repeatable, reproducible and accurate in a scientific setting.

Nev. Rev. Stat. § 34.940 Determination of when evidence is “material.”

For the purposes of NRS 34.900 to 34.990, inclusive, evidence is “material” if the evidence establishes a reasonable probability of a different outcome.

Nev. Rev. Stat. § 34.950 Claim of factual innocence is separate from state habeas claim.

Any claim of factual innocence that is made pursuant to NRS 34.900 to 34.990, inclusive, is separate from any state habeas claim that alleges a fundamental miscarriage of justice to excuse procedural or time limitations pursuant to NRS 34.726 or 34.810.

Nev. Rev. Stat. § 34.960 Filing of petition; notice and copy of petition to be served on prosecuting agency; contents; review by court; grounds for dismissal; explanation of decision by court; preservation of evidence; proceedings governed by Nevada Rules of Civil Procedure.

1. At any time after the expiration of the period during which a motion for a new trial based on newly discovered evidence may be made pursuant to NRS 176.515 , a person who has been convicted of a felony may petition the district court in the county in which the person was convicted for a hearing to establish the factual innocence of the person based on newly discovered evidence. A person who files a petition pursuant to this subsection shall serve notice and a copy of the petition upon the prosecuting agency. 2. A petition filed pursuant to subsection 1 must contain an assertion of factual innocence under oath by the petitioner and must aver, with supporting affidavits or other credible documents, that: (a) Newly discovered evidence exists that is specifically identified and, if credible, establishes a bona fide issue of factual innocence; (b) The newly discovered evidence identified by the petitioner: (1) Establishes innocence and is material to the case and the determination of factual innocence; (2) Is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence; and (3) Is distinguishable from any claims made in any previous petitions; (c) If some or all of the newly discovered evidence alleged in the petition is a biological specimen, that a genetic marker analysis was performed pursuant to NRS 176.0918 , 176.09183 and 176.09187 and the results were favorable to the petitioner; and (d) When viewed with all other evidence in the case, regardless of whether such evidence was admitted during trial, the newly discovered evidence demonstrates the factual innocence of the petitioner. 3. In addition to the requirements set forth in subsection 2, a petition filed pursuant to subsection 1 must also assert that: (a) Neither the petitioner nor the petitioner’s counsel knew of the newly discovered evidence at the time of trial or sentencing or in time to include the evidence in any previously filed post-trial motion or postconviction petition, and the evidence could not have been discovered by the petitioner or the petitioner’s counsel through the exercise of reasonable diligence; or (b) A court has found ineffective assistance of counsel for failing to exercise reasonable diligence in uncovering the newly discovered evidence. 4. The court shall review the petition and determine whether the petition satisfies the requirements of subsection 2. If the court determines that the petition: (a) Does not meet the requirements of subsection 2, the court shall dismiss the petition without prejudice, state the basis for the dismissal and send notice of the dismissal to the petitioner and the prosecuting agency. (b) Meets the requirements of subsection 2, the court shall determine whether the petition satisfies the requirements of subsection 3. If the court determines that the petition does not meet the requirements of subsection 3, the court may: (1) Dismiss the petition without prejudice, state the basis for the dismissal and send notice of the dismissal to the petitioner and the prosecuting agency; or (2) Waive the requirements of subsection 3 if the court finds the petition should proceed to a hearing and that there is other evidence that could have been discovered through the exercise of reasonable diligence by the petitioner or the petitioner’s counsel at trial, and the other evidence: (I) Was not discovered by the petitioner or the petitioner’s counsel; (II) Is material upon the issue of factual innocence; and (III) Has never been presented to a court. 5. Any second or subsequent petition filed by a person must be dismissed if the court determines that the petition fails to identify new or different evidence in support of the factual innocence claim or, if new and different grounds are alleged, the court finds that the failure of the petitioner to assert those grounds in a prior petition filed pursuant to this section constituted an abuse of the writ. 6. The court shall provide a written explanation of its order to dismiss or not to dismiss the petition based on the requirements set forth in subsections 2 and 3. 7. A person who has already obtained postconviction relief that vacated or reversed the person’s conviction or sentence may also file a petition pursuant to subsection 1 in the same manner and form as described in this section if no retrial or appeal regarding the offense is pending. 8. After a petition is filed pursuant to subsection 1, any prosecuting agency, law enforcement agency or forensic laboratory that is in possession of any evidence that is the subject of the petition shall preserve such evidence and any information necessary to determine the sufficiency of the chain of custody of such evidence. 9. A petition filed pursuant to subsection 1 must include the underlying criminal case number. 10. Except as otherwise provided in NRS 34.900 to 34.990 , inclusive, the Nevada Rules of Civil Procedure govern all proceedings concerning a petition filed pursuant to subsection 1. 11. As used in this section: (a) “Biological specimen” has the meaning ascribed to it in NRS 176.09112 . (b) “Forensic laboratory” has the meaning ascribed to it in NRS 176.09117 . (c) “Genetic marker analysis” has the meaning ascribed to it in NRS 176.09118 .

Nev. Rev. Stat. § 34.970 Order by court requiring response to petition; contents of order; time for response; reply; consideration of petition by court; hearing on petition; stipulation of factual innocence of petitioner; issuance of order of factual innocence; explanation by court; appeal.

1. If the court does not dismiss a petition after reviewing the petition in accordance with NRS 34.960 , the court shall order the prosecuting agency to file a response to the petition. The court’s order must: (a) Specify which claims identified in the petition warrant a response from the prosecuting agency; and (b) Specify which newly discovered evidence identified in the petition, if credible, might establish a bona fide issue of factual innocence. 2. The prosecuting agency shall, not later than 120 days after receipt of the court’s order requiring a response, or within any additional period the court allows, respond to the petition and serve a copy upon the petitioner and, if the prosecuting agency is the district attorney, the Attorney General. 3. Not later than 30 days after the date the prosecuting agency responds to the petition, the petitioner may reply to the response. Not later than 30 days after the expiration of the period during which the petitioner may reply to the response, the court shall consider the petition, any response by the prosecuting agency and any reply by the petitioner. If the court determines that the petition meets the requirements of NRS 34.960 and that there is a bona fide issue of factual innocence regarding the charges of which the petitioner was convicted, the court shall order a hearing on the petition. If the court does not make such a determination, the court shall enter an order denying the petition. For the purposes of this subsection, a bona fide issue of factual innocence does not exist if the petitioner is merely relitigating facts, issues or evidence presented in a previous proceeding or if the petitioner is unable to identify with sufficient specificity the nature and reliability of the newly discovered evidence that establishes the factual innocence of the petitioner. Unless stipulated to by the parties, the court may not grant a hearing on the petition during any period in which criminal proceedings in the matter are pending before any trial or appellate court. 4. If the court grants a hearing on the petition, the hearing must be held and the final order must be entered not later than 150 days after the expiration of the period during which the petitioner may reply to the response to the petition by the prosecuting agency pursuant to subsection 3 unless the court determines that additional time is required for good cause shown. 5. If the court grants a hearing on the petition, the court shall, upon the request of the petitioner, order the preservation of all material and relevant evidence in the possession or control of this State or any agent thereof during the pendency of the proceeding. 6. If the parties stipulate that the evidence establishes the factual innocence of the petitioner, the court may affirm the factual innocence of the petitioner without holding a hearing. If the prosecuting agency does not stipulate that the evidence establishes the factual innocence of the petitioner, a determination of factual innocence must not be made by the court without a hearing. 7. If the parties stipulate that the evidence establishes the factual innocence of the petitioner, the prosecuting agency makes a motion to dismiss the original charges against the petitioner or, after a hearing, the court determines that the petitioner has proven his or her factual innocence by clear and convincing evidence, the court shall: (a) Vacate the petitioner’s conviction and issue an order of factual innocence and exoneration; and (b) Order the sealing of all documents, papers and exhibits in the person’s record, minute book entries and entries on dockets and other documents relating to the case in the custody of such other agencies and officers as are named in the court’s order. 8. The court shall provide a written explanation of its determination that the petitioner proved or failed to prove his or her factual innocence by clear and convincing evidence. 9. Any order granting or denying a hearing on a petition pursuant to this section may be appealed by either party.

Nev. Rev. Stat. § 34.980 Appointment of counsel.

If the court grants a hearing on the petition pursuant to NRS 34.970, the court may, after determining whether the petitioner is indigent pursuant to NRS 171.188 and whether counsel was appointed in the case which resulted in the conviction, appoint counsel for the petitioner.

Nev. Rev. Stat. § 34.990 Notice to victim.

After a petition is filed pursuant to NRS 34.960, if any victim of the crime for which the petitioner was convicted has indicated a desire to be notified regarding any postconviction proceedings, the prosecuting agency shall make reasonable efforts to provide notice to such a victim that the petition has been filed and that indicates the time and place for any hearing that may be held as a result of the petition and the disposition thereof.
Source: NV Statutes (Official Site)URL: https://www.leg.state.nv.us/nrs/NRS-034.htmlFetched: 10/4/2026