Petition For Writ Of Habeas Corpus Not Sentenced To Death

Page 1 Rev. 6/2017 INFORMATION AND INSTRUCTIONS FOR FILING A PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 247 2254 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA You should follow these instructions carefully. The failure to do so may result in your petition not being filed and considered by the court, or at least being delayed. If you add additional pages, be sure to identify what is being continued or the number of the additional ground(s). A. Information About the Petition for Writ of Habeas Corpus Form and Procedure : 1. The petition for writ of habeas corpus form is designed to help you prepare a petition seeking relief pursuant to 28 U.S.C. 247 2254. Local Special Rule 3-1 requires the use of the petition for writ of habeas corpus form by anyone not represented by counsel -- that is, if they are proceeding pro se. For your petition to be considered by the District Court, it must be typewritten or legibly handwritten. (See Local Rule IA 10-1.) DO NOT WRITE ON THE BACK OF ANY OF THE PAGES. Any writing on the back of any page might not be considered by the court. All information must be clearly and concisely written, only in the space provided on the form, and only one line of writing per line provided. Do not write in the margins. If needed, you may attach additional pages of standard letter-size paper to add further information about grounds or to state additional grounds. Be sure you make clear to which grounds the information on the additional pages applies. 2. You must sign the petition, and your signature constitutes a certificate that: 1) you have read the petition; 2) to the best of your knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and law; and 3) it is not being filed for any improper purpose. You should review Rule 11 of the Federal Rules of Civil Procedure. Note also that Rule 11 provides for the imposition of sanctions if the petition is signed in violation of the rule. Additionally, if a court finds that you have engaged in sanctionable conduct (such as pursuing a frivolous or malicious action), and if you are under the control of the Nevada Department of Corrections, you can be disciplined under the Code of Penal Discipline, which can include all sanctions authorized under the Code, including punitive confinement and the loss of good time credits. Lastly, the petition must be signed under penalty of perjury. A false statement or answer to any question in the petition can subject you to federal prosecution (see 28 U.S.C. 247 1746 and 18 U.S.C. 247 1621) as well as state prosecution (see Nev. Rev. Stat. 247 199.145). 3. If you are seeking to proceed in forma pauperis, you will need to fill out the appropriate federal forms and attach supporting documentation. Should the court determine that you do not qualify to proceed in forma pauperis, the court will order you to pay the five dollar ($5.00) filing fee. 4. If you are currently residing in a county that is part of the unofficial Northern Division, then you should mail your petition to the Reno address. If you are currently residing in a county that is part of the unofficial Southern Division, then you should mail your petition to the Las Vegas address. The counties in the unofficial Southern Division are Clark, Esmeralda, Lincoln, and Nye. All other counties are in the unofficial Northern Division. (See Local Rule LR IA 1-6 and Local Rule LR IA 1-8.) Once your case is filed, a copy will be sent to you by the clerk of court. When you have finished writing your petition, you should mail only the original with the proper filing fee American LegalNet, Inc. www.FormsWorkFlow.com Page 2 Rev. 6/2017 or an application to proceed in forma pauperis (see the separate "Information and Instructions for Filing an Application to Proceed In Forma Pauperis" to determine whether you need to submit a filing fee) to: Clerk, U.S. District Court Clerk, U.S. District Court Dist r ict of Nevada Dist r ict of Nevada 400 South Vir g inia Street OR 333 Las Vegas Boulevard South Room 301 R oo m 1334 Reno NV 89 5 01 Las Ve g as NV 89 1 01 5. Except for the initial petition and initial application to proceed in forma pauperis submitted to commence an action, you must write the correct case number on the front page of all documents you submit to the court. Once the respondents have appeared in the case, you need not serve the respondents copies of documents you file in the case. Any document you file after the respondents have appeared will be considered served on the respondents when it appears on the district court docket. 6. If you wish to have a file-stamped copy of any filed document returned to you, you must furnish one additional copy of the document to the clerk with your filing. 7. Exhibits should not be submitted with the petition. Instead, the relevant information in an exhibit should be paraphrased in the petition. You should, however, attach to the petition a copy of all final state court written decisions regarding the conviction you are challenging. 8. You must immediately notify the clerk and the opposing party or their attorney in writing of any change in your mailing address. (See LR IA 3-1.) 9. If you need to change any of the information in the initial petition, you can only do so by filing an amended petition, which must also be written on the petition for writ of habeas corpus form. Local Rule LR 15-1 requires that any amended pleading be complete in itself, without reference to any prior pleading. This is because an amended petition supersedes prior petition. Consequently, the amended petition must contain all the grounds for relief that you wish to pursue. 10. It is inappropriate to write a letter to any of the district judges, magistrate judges, or the staff of any of the judicial officers. The only appropriate way to communicate with these persons is by filing a written motion. The judges of this court, the clerk of court, deputy clerks and other court staff are officers of the court, and as such they are prohibited from giving legal advice. Questions of this nature should be directed to an attorney who is not a member of the court's staff. B. General Information About Petitions for Writ of Habeas Corpus: 1. To be able to file a petition for writ of habeas corpus pursuant to 28 U.S.C. 247 2254, you must be challenging the validity of a state court conviction and/or sentence, or the computation of time toward the sentence, and you must be "in custody." Most petitioners meet the "in custody" requirement because when they file their petition they are confined based on a state court conviction. However, individuals on probation or parole are still "in custody" within the meaning of the statute. American LegalNet, Inc. www.FormsWorkFlow.com Page 3 Rev. 6/2017 2. Only one judgment of conviction can be challenged in a petition for writ of habeas corpus pursuant to 28 U.S.C. 247 2254. Therefore, if you have multiple judgments, then each must be challenged in a separate petition. For example, if you have two judgments of conviction, one from Clark County and the other from Washoe County, then you would have to file two petitions. Also, if you have two judgments of conviction from the same county, but each is from separate proceedings that resulted in two judgments, then you have to file separate petitions (i.e., one for each judgment). But if you had multiple charges or indictments that were tried together or that were part of a plea bargain, and which resulted in a single judgment of conviction (even though there are multiple sentences), then the validity of the conviction(s) and/or sentence(s) can be challenged in a single petition. The reason only one petition is required in that case is because there is only one judgment of conviction. 3. Because you are challenging the validity of a state court conviction and/or sentence in a federal court, you need to first challenge the validity of the conviction and/or sentence in the state courts. This is the "exhaustion" requirement. There are two ways to meet this requirement. The first is to appeal from the judgment of the trial court. This is called a direct ap