34.745 - Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding.
34.745 Judicial order to file answer and return; when order is required; form of order; summary dismissal of successive petitions; record of proceeding.
1. If a petition challenges the validity of a judgment of conviction or sentence and is the first petition filed by the petitioner, the judge or justice shall order the district attorney or the Attorney General, whichever is appropriate, to:
(a) File:
(1) A response or an answer to the petition; and
(2) If an evidentiary hearing is required pursuant to NRS 34.770, a return,
Ê 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. If a petition challenges the computation of time that the petitioner has served pursuant to a judgment of conviction, the judge or justice shall order the attorney general to:
(a) File:
(1) A response or an answer to the petition; and
(2) A return,
Ê within 45 days or a longer period fixed by the judge or justice.
(b) Take other action that the judge or justice deems appropriate.
3. An order entered pursuant to subsection 1 or 2 must be in substantially the following form, with appropriate modifications if the order is entered by 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 and file a return 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 the district attorney of the county in which the petitioner was convicted.
4. 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 2 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.
5. 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.
(Added to NRS by 1991, 76; A 1999, 145; 2001, 57)