A writ of habeas corpus is a court order requiring a hearing to establish whether there is a constitutional basis for confining you following an arrest or conviction. If granted, the court will hold a hearing to determine whether your confinement or sentence is legal. If you prevail at the hearing, you will go free.
In Nevada, you can petition for a writ of habeas corpus if:
- You are still in the custody of the legal system; and
- You have no other avenue to challenge your criminal conviction (such as an appeal), or
- You wish to challenge the constitutionality of your conditions of incarceration.
Habeas corpus is not the same as a regular criminal appeal. You cannot use it to go free simply because the jury reached the wrong verdict. A write of habeas corpus is considered "extraordinary relief." It is granted when you can no longer appeal but there was something that made your conviction or sentence inherently unfair -- for instance:
- A prosecutor introduced false evidence;
- Your trial lawyer or appellate lawyer was incompetent;
- The United States Supreme Court has recognized a new constitutional right and made it apply retroactively; or
- New evidence has come to light (such as someone else confessing to the crime for which you were convicted).
The percentage of habeas petitions granted in Nevada is very low. Habeas corpus is most often granted in death penalty cases and in federal (rather than Nevada) court.
Many prisoners file habeas petitions on their own. However, you can improve your chances greatly by hiring a lawyer with significant habeas corpus experience.
To help you better understand habeas corpus petitions in Nevada, our Las Vegas criminal defense lawyers answer the following, below:
- 1. What is habeas corpus?
- 2. Who can petition for habeas corpus in Nevada?
- 2.1. The legal meaning of "in custody"
- 2.2. Can I petition for habeas corpus if I am here illegally or on a green card?
- 3. What are the grounds for habeas corpus in Nevada?
- 4. How long do I have to file for habeas corpus?
- 5. What is the procedure for filing for habeas corpus in Nevada?
- 6. Can I appeal a denial of habeas corpus or petition again?
- 7. What if I cannot afford a lawyer?
- 8. What happens if I prevail at my hearing?
- 9. Special habeas corpus procedures in Nevada death penalty cases
- 10. Federal writs of habeas corpus
- 10.1. Federal habeas corpus for Nevada state prisoners
- 10.2. Habeas corpus for federal prisoners in Nevada
- 11. Can habeas corpus help deportable aliens stay in the U.S.?
- 12. What are other forms of post-conviction relief in Nevada?
"Habeas corpus" is a Latin phrase meaning "you shall have the body." The "body" in the phrase means the body of someone who is in custody because they have been arrested or convicted of a crime.
The foundation for the right of habeas corpus originates in the due process clause of the 14th amendment to the United States Constitution. Section 1 of the 14th amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law..."
Accordingly, if a person's imprisonment does not conform with fundamental constitutional requirements, courts are charged with ordering the person to be released from custody immediately.1
Nearly 200 petitions for habeas corpus were filed in Nevada's state and federal courts in the year 2000 (the most recent year for which statistics are available). Of those, eight involved application of the death penalty.
Other common reasons for habeas corpus petitions in Nevada include ineffective assistance of counsel, trial court errors, due process violations and violation of the constitutional right against self-incrimination.2
You may file for habeas corpus if you believe:
- Your detention by the justice system was unlawful;3 or
- Your conviction violated your constitutional rights;4 or
- Your sentence was improperly computed.5
Two basic conditions must be met, however, before you can file for habeas review:
- You must be in custody when your petition is filed, and
- You must have been denied on appeal, or the time for appealing your conviction has expired.6
You can seek habeas corpus in Nevada only if you are in custody or your liberty is otherwise restrained.7 This means you can file a petition if:
- You are currently in jail, prison or juvenile detention;
- You are under house arrest;
- You are on parole or probation (both of which involve restrictions on liberty);
- Your sentence has been suspended while you complete counseling or other conditions; or
- You are out on bail or released on your own recognizance while charges are pending.
Aliens subject to removal from the United States may file for a writ of habeas corpus, including on the grounds of being detained by U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE) beyond the 90-day removal period.8
Both legal and undocumented immigrants can seek a writ of habeas corpus in Nevada.
Section 34.500 of the Nevada Revised Statutes (NRS 34.500) sets forth nine basic conditions under which a Nevada petition for habeas corpus may be granted:
- 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 afterwards, 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.
You may also file a petition for a writ of habeas corpus if you have been wrongfully denied bail before conviction.9
Unless there is good cause shown for delay, you must challenge the validity of your judgment or sentence within 1 year after:
- Entry of the judgment of conviction or,
- If you appealed your conviction, the date on which the disposition of the appeal became final or the right to appeal expired.10
For the purposes of this subsection, good cause for delay exists if you can demonstrate to the satisfaction of the court that:
- The delay was not your fault; and
- Dismissal of the petition as untimely will unduly prejudice you.11
Reasons the delay might not be your fault include:
- You were prevented from timely filing for habeas corpus by a wrongful action of the state of Nevada;
- The Supreme Court recognized a new constitutional right and made it retroactively applicable to cases on collateral review; or
- New facts have arisen that you could not have discovered earlier through the exercise of due diligence (for instance, someone unknown to you has recently confessed to the crime for which you were convicted).12
You can petition for a writ of habeas corpus yourself or your Nevada criminal defense attorney can do it for you.
Your petition must specify:
- The fact that you are imprisoned or restrained of your liberty,
- The place where you are confined,
- The officer(s) or other person(s) who has /have confined or restrained you, by name, if known, or else by description,
- If the basis for your petition is illegal restraint or detention, the facts which support your contention, and
- If your petition requests relief from a criminal judgment of conviction or sentence, an identification of the proceedings in which you were convicted, including:
- The date of entry of the final judgment,
- Any previous proceeding initiated by you in state or federal court to secure relief from your conviction or sentence,
- Which of your constitutional rights you believe were violated, and
- The acts constituting violations of those rights.
Your petition should be accompanied by affidavits, records or other evidence supporting the allegations or an explanation of why you have failed to attach such materials. An argument, citations and other supporting documents are not necessary.13
You can find the form for petitioning for habeas corpus in Nevada courts at NRS 34.735. Petitions not conforming to NRS 34.735 may be rejected.
Once your petition is complete, the original and one copy must be filed with the clerk of the Nevada district court for the county in which you were convicted. One copy must be mailed to the respondent (the person unlawfully detaining you), one copy to the Attorney General's Office, and one copy to the district attorney of the county in which you were convicted or to the original prosecutor if you are challenging your original conviction or sentence.14
As soon as you have done all of the above, things will proceed quickly. Judges are required by Nevada law to examine petitions for habeas corpus expeditiously.15
If the petition challenges the validity of a judgment of conviction or sentence and if this is the first petition you have filed, the judge or justice shall order the district attorney or the Attorney General (as appropriate) to review and respond, usually within 45 days.16
The judge will then review all the documents and determine whether an evidentiary hearing is required.17If the judge determines that there is possible merit in your petition, he or she will grant the writ and set a date for the hearing.18
Otherwise, the judge will dismiss your petition without a hearing (summary dismissal).19
Reasons for dismissal of a habeas corpus petition often include:
- The original conviction was based on a plea of guilty, or guilty but mentally ill, and there is no allegation that the plea was involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel; or
- The conviction was the result of a trial and the grounds for the petition could have been:
- Presented at trial;
- Raised in a direct appeal or a prior petition for a writ of habeas corpus or other post-conviction relief; or
- Raised in any other proceeding you have taken to secure relief from your conviction and sentence.20
In other words, habeas corpus will not be granted if you could have (but did not) raise the issues that form the basis of your habeas corpus petition in another proceeding.
However, you may still prevail if the court finds both:
- Reasonable cause for your failure to present such grounds (such as ineffective counsel), and
- Actual prejudice to you.
You have the right to appeal the judge's decision if it goes against you.21
You may also file a second or successive petition for habeas corpus, but only if:
- It alleges new or different grounds for relief, and
- You can show good cause for your failure to present the claim earlier; and
- You will suffer actual prejudice if the petition is not granted.
Your new petition must disclose all prior proceedings in which you challenged the same conviction or sentence; otherwise, the court will dismiss it.
If it is a death penalty case and this is your first petition for habeas corpus, the court will appoint a Nevada public defender for you. Otherwise, you must allege in your petition that you are unable to pay the costs of the proceedings or to employ a Nevada criminal defense attorney.
If the judge agrees that you are indigent and your petition is not dismissed summarily, the court may appoint public counsel to represent you. In making its determination, the court may consider, among other things, the severity of the consequences facing you and whether:
- The issues presented are difficult;
- You are unable to comprehend the proceedings; or
- Counsel is necessary to proceed with discovery.22
If the judge finds that there is no legal cause for your imprisonment or restraint, you will immediately be released from custody.23
You cannot thereafter be imprisoned, restrained or kept in custody for the same cause, unless you are subsequently lawfully arrested or committed for the same offense by legal order or process.24
If you have been sentenced to the death penalty and the petition for habeas corpus is the first one challenging the validity of your conviction or sentence, the court will:
- Appoint counsel to represent you if you do not already have a lawyer; and
- Stay execution of the judgment pending disposition of your petition and appeal.25
If your execution has been scheduled, your petition must include the date for which your execution is scheduled.
Your petition must also state why the issues of fact you are alleging were not determined in prior hearings and why such hearings were inadequate. You can find a full list of the required disclosures in death penalty cases in NRS 34.820.
Note that in order to get a stay of execution, you must:
- Actually file a petition for habeas corpus; and
- Establish a compelling basis for the stay.
It is not enough that you could have filed a petition because you are within the one-year period following entry of your judgment of conviction or appeal.
You have the right to petition a federal court for habeas corpus if:
- Your Nevada petition for habeas corpus was denied, or
- You were convicted of a federal crime.
Let's look at each of these scenarios separately.
U.S. law is strict on when a habeas corpus petition is permitted to challenge a state sentence.
In order to obtain federal habeas relief, you must be able to show that your conviction or custody violated either federal law or your constitutional rights. It is not enough that your conviction may have violated Nevada law.
Just as importantly, you will need to show that you have exhausted all remedies available in Nevada. Unlike Nevada law, which sometimes allows you to petition for habeas corpus even if you did not appeal your conviction, federal law requires that you have appealed to the Nevada courts at every possible opportunity.26The only exception is if you can show a valid reason why Nevada state remedies were not able to protect your rights.
Additionally, a federal court will not grant your petition unless:
- The Nevada courts made a mistake that actually prejudiced your rights, and
- The mistake was contrary to clearly established federal law, as determined by the Supreme Court of the United States (not by the 9th circuit court of appeals or any other federal court), or
- The mistakes were based on a completely unreasonable determination of the facts in light of the evidence.27.
Because this bar is so high, very few federal habeas petitions challenging state sentences are granted. Nevertheless, since federal courts are more likely than Nevada courts to grant habeas relief, it is often worth petitioning, especially in death penalty or serious felony cases.
Although Nevada has not executed anyone since April 2006, a petition for habeas corpus may be able to get you off of death row. And in the unlikely case that a date for execution has been set, the federal court will stay the order while your habeas petitioning is proceeding.28
Habeas petitions for federal prisoners in Nevada must be filed in federal (not Nevada state) court.29
Federal prisoners must file their petitions for habeas corpus within one year of the latest of:
- The date on which their conviction became final,
- The date on which the Supreme Court recognized a new constitutional basis on which a conviction can be challenged, or
- The date on which new facts were discovered or could have been discovered through reasonable efforts.30
Potentially. Aliens in Nevada who have been convicted of deportable crimes face removal from the U.S. However, they may be able to stay if they can get their convictions overturned or get their sentences significantly lowered so the conviction no longer qualifies as deportable...
Non-citizens who have pursued all over avenues of getting their convictions vacated may file a writ of habeas corpus petition as a last resort. Every case is different, but if the judge grants the habeas petition, the non-citizen should be released from custody and usually can stay in the U.S. Learn more about the criminal defense of immigrants in Nevada.
Habeas corpus petitions are a "last resort" for defendants seeking to get their convictions overturned or sentences commuted. Other forms of post-conviction relief in Nevada that defendants should attempt first (if applicable) are motion to withdraw a plea and motions for a new trial.
Motions to withdraw a plea
Defendants who entered a guilty plea may ask the court any time prior to sentencing to withdraw the plea so he/she can negotiate a better plea or go through with trial. Courts are hesitant to grant a motion to withdraw a plea unless the defendant can show either of the following:
- Ineffective assistance of counsel,
- Ineffective assistance of translators,
- The plea was not made knowingly, voluntarily, or intelligently, or
- The defendant was not informed that probation may be available.
Note that people may file for motions to withdraw a plea only prior to sentencing. Following sentencing, the defendant's only option for negating the plea is through a habeas corpus petition.31
Motion for a new trial
Defendants who were convicted at trial may ask the court to redo the trial if they believe they were deprived of their right to a fair trial. Courts are very reluctant to grant motions for a new trial unless the defendant can prove they were prejudiced by either:
- Ineffective assistance of counsel,
- Prosecutorial misconduct,
- Judicial error, jury misconduct,
- Perjury, or
- Various evidentiary issues.
Motions for new trial must be made within seven (7) days after the verdict unless there is newly discovered evidence, which pushes the deadline to two (2) years past the verdict.32 Learn more about post-conviction relief in Nevada.33
Commutation of sentence
People convicted of Nevada crimes can apply to the Nevada Pardons Board for a reduced sentence. Not everyone is eligible for a shortened ("commuted") sentence, though. Learn more in our article on how to commute a sentence in Nevada.
Wrongfully convicted in Nevada? Call us for help…
If you or someone you know is interested in filing a petition for habeas corpus relief in Nevada, we invite you to contact us for a free consultation.
A writ of habeas corpus is an extraordinary remedy that is difficult to obtain. But sometimes it is the only hope for regaining your freedom.
Our caring Las Vegas and Reno defense lawyers are experienced at crafting compelling habeas corpus petitions. We will carefully review your case, interview witnesses and find out what your trial and/or appellate lawyer may have missed. Then we will fight to secure your freedom.
To schedule your free consultation, call us at 702-DEFENSE (702-333-3673) or complete the form on this page. One of our experienced criminal defense lawyers will get back to you promptly to discuss the best approach to your federal or Nevada habeas corpus petition.
If you were convicted in California, please see our article on Petitioning for a Writ of Habeas Corpus in California.
- See 28 U.S. Code 2241, 2254 and 2255.
- Federal Habeas Corpus Review, Bureau of Justice Statistics Discussion Paper, NCJ 155504, September 1995.
- Nevada Revised Statutes (NRS) 34.360.
- NRS 34.724.
- NRS 34.726.
- NRS 34.370.
- Calcano-Martinez v. INS 533 U.S. 348 (2001); Zadvydas v. Davis 533 U.S. 678 (2001); Clark v. Martinez 543 U.S. 371 (2005).
- NRS 34.530.
- NRS 34.726.
- See 28 U.S. Code 2244.
- NRS 34.370.
- NRS 34.735 (7).
- NRS 34.740.
- NRS 34.745.
- NRS 34.770 (1).
- NRS 34.770 (3).
- NRS 34.770 (2).
- NRS 34.810.
- NRS 34.575.
- NRS 34.750.
- NRS 34.480.
- NRS 34.590.
- NRS 34.820 (1).
- 28 U.S. Code 2254(b)(1).
- 28 U.S. Code 2254(d).
- 28 U.S. Code 2251.
- 28 U.S. Code 2255.
- NRS 176.165.
- NRS 176.175.
- NRS 213.020.