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Habeas Petition

Post-Conviction Petition for Writ of Habeas Corpus in Nevada

After conviction, the two main avenues for relief are a direct appeal and a petition for writ of habeas corpus. Most often, the petition for writ of habeas corpus is filed only after the direct appeal is denied, but this is not always the case. If either a direct appeal or a habeas petition is successful, it will usually result in the conviction being overturned.

What is a Petition for Writ of Habeas Corpus?

A Petition is a legal document filed with the Court, asking the Court to do something. “Habeas corpus” is a Latin phrase meaning “you shall have the body.” A writ of habeas corpus is an Order from the court, requiring that a hearing be held to establish whether there is a constitutional basis for the confinement of a convicted person in Nevada. If the Court grants the Petition, it will hold a hearing to determine whether the confinement itself is legal or illegal (or unconstitutional). A successful result will mean you are freed from confinement.

What are the Requirements for a Habeas Petition?

There are certain requirements you must meet prior to filing a post-conviction Petition for Writ of Habeas Corpus. Nevada has established a statutory scheme regulating the requirements for filing such a petition, as set forth in NRS Chapter 34.

These requirements include:

  • You are custody and/or your liberty is restrained through the State's legal system.
  • You wish to challenge the constitutionality of your incarceration.
  • You file your Petition within the time restraints required by the statutory scheme, in Nevada the time limit is one year from your conviction, or one year from the denial of your direct appeal.

What is the Difference between a Habeas Petition and a Direct Appeal?

A direct appeal is filed via a Notice of Appeal, which will cause your case to be transferred to a highest court. On direct appeal, you have an opportunity to challenge any error made by the originating court. For example, if you went to trial in the District Court, your appeal could argue that the District Court judge made errors which require your case to be reversed. You may also argue that the prosecutor did things that violated your rights which the District Court judge failed to correct. A third argument you might make is that there was not enough evidence to support your conviction.

In contrast, a post-conviction habeas petition is ordinarily filed within the same court that conducted your trial. You do not use the habeas petition to argue that the trial judge made mistakes, or that the jury reached an incorrect verdict. A habeas petition is a request for extraordinary relief, and it will only be granted under a more limited range of scenarios.

Some grounds for relief for a post-conviction habeas petition may include:

  • Your previous lawyer provided you ineffective assistance of counsel;
  • The prosecutor broke the law when convicting you;
  • A higher court has recognized a new constitutional right which applies retroactively to your case;
  • Newly discovered evidence.
  • When the jurisdiction of the court or officer has been exceeded.
  • When the imprisonment was at first lawful, yet by some act, omission or event, which has taken place afterward, the petitioner has become entitled to be discharged.
  • When the process is defective in some matter of substance required by law, rendering it void.
  • When the process, though proper in form, has been issued in a case not allowed by law.
  • When the person having the custody of the petitioner is not the person allowed by law to detain the petitioner.
  • Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.
  • Where the petitioner has been committed or indicted on a criminal charge, including a misdemeanor, except misdemeanor violations of [traffic laws] without reasonable or probable cause.
  • 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.
  • 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.

What is the Time Limit for Filing a Habeas Petition?

You must file your post-conviction Petition for Habeas Corpus either one year from your conviction, or one year from the denial of your direct appeal. There are some exceptions to these time restraints for good cause, but the easiest way to meet the deadline is to hire an attorney to get your Petition filed on time, rather than try and come up with an excuse for an untimely filing after the fact. You must consult with an attorney regarding your particular case to determine the timeline that applies to your particular situation. 

Will I Go Free?

If you are successful in the Court's ultimate ruling, it means your conviction must be vacated and you can no longer be placed in custody. However, even if you are successful, you might be charged and brought back for a second trial. For example, if the reason your Petition succeeds is because your defense attorney provided you ineffective assistance of counsel, the State has the right to subject you to a new trial for the same underlying offenses.

Call our attorneys today for a free initial review of your case and whether a post-conviction habeas petition is something that can help you or your loved one.

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