Senate Bill No. 435–Committee on Judiciary

 

(On Behalf of the Attorney General)

 

March 24, 2003

____________

 

Referred to Committee on Judiciary

 

SUMMARY—Requires leave of district court to be obtained before filing of certain subsequent postconviction petitions for writ of habeas corpus. (BDR 3‑434)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to writs of habeas corpus; requiring leave of the district court to be obtained before the filing of certain subsequent postconviction petitions for writ of habeas corpus; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

1-1  Section 1. Chapter 34 of NRS is hereby amended by adding

1-2  thereto a new section to read as follows:

1-3  1.  Notwithstanding the provisions of any other statute, if a

1-4  person previously filed a postconviction petition for writ of habeas

1-5  corpus containing any claim challenging a conviction or sentence,

1-6  and if the previous proceeding resulted in an adjudication on the

1-7  merits of any claim or resulted in a dismissal based on the

1-8  timeliness provisions of NRS 34.726, the person shall not file a

1-9  subsequent petition containing any claim challenging the same

1-10  conviction or sentence, unless the person first applies for, and

1-11  obtains, leave of the appropriate district court pursuant to this

1-12  section.

1-13      2.  To apply for leave of court pursuant to this section, the

1-14  applicant must:

2-1  (a) File an application with the appropriate clerk of the district

2-2  court for the county as described in subsection 1 of NRS 34.738

2-3  titled “Application for Leave to File Subsequent Petition for Writ

2-4  of Habeas Corpus”; and

2-5  (b) Attach a copy of the proposed postconviction petition for

2-6  writ of habeas corpus as an exhibit to the application.

2-7  3.  The application:

2-8  (a) Must contain a complete description of all prior

2-9  proceedings in any court in which the applicant challenged the

2-10  same judgment or sentence;

2-11      (b) Must name as the respondent the officer or other person by

2-12  whom the petitioner is confined or restrained; and

2-13      (c) Must be served upon the respondent or respondents, the

2-14  district attorney in the county in which the application is filed and

2-15  the Attorney General.

2-16      4.  The applicant has the burden of pleading and proving

2-17  specific facts which demonstrate that the filing of the petition, if

2-18  permitted, would be lawful and proper pursuant to the standards

2-19  set forth in subsection 8.

2-20      5.  The respondent, through the district attorney or the

2-21  Attorney General, whichever is appropriate, shall respond to the

2-22  application in writing within 30 days after service, and shall state

2-23  whether the claims contained within the proposed petition meet

2-24  the standards set forth in subsection 8 for the filing of a

2-25  subsequent petition.

2-26      6.  The application and the response of the respondent must

2-27  be:

2-28      (a) Presented promptly to the court by the clerk of the court;

2-29  and

2-30      (b) Examined expeditiously by the judge to whom the

2-31  application and response are assigned, who shall determine

2-32  whether the applicant has met his burden of demonstrating that

2-33  the filing of the subsequent petition is lawful and proper pursuant

2-34  to the standards set forth in subsection 8.

2-35      7.  The court shall deny the application if the court determines

2-36  that the applicant has not demonstrated that the filing of the

2-37  proposed petition would be lawful and proper pursuant to the

2-38  standards set forth in subsection 8. Otherwise, the court shall

2-39  grant the application.

2-40      8.  The court shall deny the application if the court determines

2-41  that:

2-42      (a) The applicant has previously filed a postconviction petition

2-43  for writ of habeas corpus containing any claim challenging the

2-44  same conviction or sentence, the previous proceeding resulted in

2-45  an adjudication of any of the claims on the merits and:

3-1       (1) The proposed petition fails to allege new or different

3-2  grounds for relief not presented in the prior petition;

3-3       (2) New and different grounds are alleged in the proposed

3-4  petition, the failure of the applicant to assert those grounds in a

3-5  prior petition would constitute an abuse of the writ and the

3-6  applicant has failed to demonstrate cause for the failure to present

3-7  the grounds and actual prejudice to the applicant; or

3-8       (3) The claims contained within the proposed petition fail to

3-9  satisfy the standards for the presentation of claims set forth in

3-10  paragraph (a) or (b) of subsection 1 of NRS 34.810; or

3-11      (b) The applicant has previously filed a postconviction petition

3-12  for writ of habeas corpus containing any claim challenging the

3-13  same conviction or sentence, and:

3-14          (1) The previous proceeding resulted either in an

3-15  adjudication of any of the claims on the merits or in a dismissal

3-16  based on the timeliness provisions of NRS 34.726; and

3-17          (2) The filing of the proposed petition would not be timely

3-18  based on the timeliness provisions of NRS 34.726, and the

3-19  applicant has not demonstrated good cause for delay.

3-20      9.  The court may, at its discretion, appoint counsel to assist

3-21  the applicant in accordance with the standards set forth in

3-22  subsection 1 of NRS 34.750.

3-23      10.  Upon the determination by the court to grant or deny the

3-24  application, the court shall make specific findings of fact and

3-25  conclusions of law regarding whether the applicant has met his

3-26  burden of demonstrating that the filing of the subsequent petition

3-27  is lawful and proper pursuant to the standards set forth in

3-28  subsection 8 or whether the applicant has failed to do so.

3-29      11.  The aggrieved party may appeal to the Supreme Court

3-30  from the order and decision of the district court by filing a notice

3-31  of appeal with the clerk of the district court within 15 days after

3-32  service of written notice of entry of the order. If the order appealed

3-33  from is an order granting the application, the district court shall

3-34  permit the provisional filing of the petition and stay the

3-35  proceedings on the petition pending the appeal.

3-36      12.  The court shall strike from the court record, nunc pro

3-37  tunc, any subsequent petition that is filed in violation of the

3-38  provisions of this section.

3-39      13.  As used in this section, “subsequent petition” means:

3-40      (a) A postconviction petition for writ of habeas corpus

3-41  containing any claim challenging a conviction or sentence, which

3-42  is filed, or sought to be filed, subsequent to the adjudication on the

3-43  merits of any of the claims contained within a previous

3-44  postconviction petition for writ of habeas corpus which contained

3-45  any claim challenging the same conviction or sentence; or

4-1  (b) A postconviction petition for writ of habeas corpus

4-2  containing any claim challenging a conviction or sentence that is

4-3  filed, or sought to be filed, subsequent to the dismissal based on

4-4  the timeliness provisions of NRS 34.726 of a previous

4-5  postconviction petition for writ of habeas corpus which contained

4-6  any claim challenging the same conviction or sentence.

4-7  Sec. 2.  NRS 34.722 is hereby amended to read as follows:

4-8  34.722  As used in NRS 34.720 to 34.830, inclusive, and

4-9  section 1 of this act, unless the context otherwise requires,

4-10  “petition” means a postconviction petition for habeas corpus filed

4-11  pursuant to NRS 34.724.

 

4-12  H