Call or text 24 hours a day, 7 days a week – (702) 940-1234

Habeas Petition

A writ of habeas corpus is a court order mandating an investigation to determine if your detention following an arrest or conviction is legal. If your request is accepted, a hearing will be held to decide whether your imprisonment or sentence is appropriate. If you win the hearing, you could be released from custody, but the State may reinstate the original charges. 

You may request a writ of habeas corpus in Nevada if:

  • You are in the custody, which includes on parole or probation.
    • There isn’t any other way for you to appeal your criminal conviction.
    • You want to question whether your trial or guilty plea was obtained with constitutionally and with effective assistance of counsel.

A criminal appeal is not the same as a post-conviction habeas corpus petition. Your appellate rights are very limited if you plead guilty.  On the other hand, you could argue in a petition that you would not have plead guilty if your attorney effectively represented you.

Obtaining a writ of habeas corpus is seen as “extraordinary relief.” It is appropriate when you have exhausted all appeals options, but your conviction or punishment was intrinsically unfair for some reason, such as:

  • A prosecutor presented false evidence.
  • Your trial attorney or appellate lawyer lacked competence.
  • The United States Supreme Court has acknowledged a new constitutional right and now operates retroactively.
  • There is new information (such as somebody else confessing to the offense for which you were found guilty).

In Nevada, a tiny percentage of habeas petitions are approved. In federal court (as opposed to Nevada) and in instances involving the death penalty, habeas corpus gets most frequently granted.

Many incarcerated persons submit their own habeas corpus petitions. However, it can be difficult to draft appropriate arguments and subpoena witnesses on your behalf from prison.  This is why hiring a lawyer with substantial habeas corpus experience can significantly increase your odds of winning.

Habeas Petition Las Vegas

What is habeas corpus?

The Latin term “habeas corpus” means “you shall have the body.” The phrase “body” refers to a person in custody after being detained or found guilty of a crime.

The due process provision of the 14th Amendment to the United States Constitution is the cornerstone of the habeas corpus right. No state may “deprive any person of property, liberty, or life without due process of law,” according to Section 1 of the 14th Amendment.  As a result, courts have the authority to order an individual’s immediate release from jail if their imprisonment violates basic constitutional standards.

Nevada’s federal and state courts received nearly 200 habeas corpus petitions in the year 2000—eight of those involved imposing the death penalty.

Additional frequent justifications for habeas corpus requests in Nevada include

  • Ineffective assistance of counsel;
  • Due process violations;
  • Trial court errors; and
  • Violation of the prohibition on self-incrimination in the constitution (5th Amendment Right to remain silent).

Types of Habeas Petitions in Nevada

Habeas corpus petitions are filed in Nevada, as in other jurisdictions around the US, to dispute the validity of a person’s detention or imprisonment.

Habeas corpus is a fundamental legal principle that ensures individuals have the right to challenge the lawfulness of their confinement. 

In Nevada, people can file several types of habeas petitions. Here are some common types:

  1. State Habeas Corpus Petition: This is the most common habeas petition filed in Nevada. Incarcerated individuals in state prisons or correctional facilities usually file it. The petition challenges the legality of the person’s confinement, often claiming violations of constitutional rights, errors during the trial or sentencing process, or new evidence that was not available at the time of the original trial.
  2. Federal Habeas Corpus Petition: In some cases, individuals may exhaust their remedies in state court and then file a federal habeas corpus petition. This type of petition is filed in the federal district court and challenges the legality of the detention under federal law. Federal habeas petitions are often based on claims of constitutional violations, ineffective assistance of counsel, or newly discovered evidence.
  3. Habeas Corpus Petition for Pretrial Detainees: The pretrial detainee petition is filed by individuals in custody pending trial. It challenges the legality of pretrial detention, often arguing that there is insufficient evidence to support continued detention or that the individual’s constitutional rights have been violated.
  4. Habeas Corpus Petition for Immigration Detainees: Individuals who are detained by immigration authorities and are challenging their immigration detention can file a habeas corpus petition. These petitions often argue that the detention is unlawful or that the individual’s due process rights have been violated.
  5. Habeas Corpus Petition for Juvenile Detainees: Juveniles detained in Nevada’s juvenile justice system can file a habeas corpus petition to challenge the legality of their detention. These petitions may raise issues related to the conditions of confinement, due process violations, or ineffective assistance of counsel.

It’s important to note that the process and requirements for filing a habeas corpus petition can vary depending on the specific circumstances and the court involved. It is advisable to consult with an attorney specializing in habeas corpus law to navigate the process effectively.

Who can petition for habeas corpus in Nevada?

You could file for habeas corpus if you think:

  • Your detention through the legal system was illegal.
  • Your conviction violated the rights under the constitution.
  • Your sentence was miscalculated.

But before you can request a habeas review, the fundamental requirements must be satisfied that you are in custody.

The legal definition of “in custody.”

Only those detained or whose freedom is restricted can file for habeas corpus in Nevada. As a result, you may submit a petition if:

  • You are now being held in a jail, prison, or a juvenile correctional facility.
  • You are under house arrest.
  • You have constraints on your freedom because you are on probation or parole.
  • Your sentence is suspended while you attend counseling or meet other conditions.
  • While charges are pending, you are free on bond or released on your recognizance.

Can someone in the country illegally or with a green card file a habeas corpus petition?

Aliens facing deportation from the United States may request a writ of habeas corpus, among other reasons, if they have been held by ICE (Immigration and Customs Enforcement) for longer than 90 days.

In Nevada, immigrants with or without documentation may request a writ of habeas corpus.

What Differentiates a Direct Appeal from a Habeas Petition?

Notice of Appeal is used to submit a direct appeal, transferring your matter to the highest court. You can contest any mistakes made by the original court on direct appeal. For instance, if you had a District Court trial, your appeal might claim that the District Court judge made mistakes that called for your case to be overturned. You could also claim that the District Court judge ignored the prosecutor’s rights-violating actions and allowed them to continue. You might even claim that there wasn’t enough evidence to back up your conviction as a third defense.

A post-conviction habeas petition, on the other hand, is typically filed in the same level court that presided over your trial. You cannot claim that the trial judge erred or the jury returned the wrong result in a habeas petition. Rather, habeas petition asks for extraordinary remedy and is only approved in a narrower range of circumstances.

Among the possible justifications for relief in a post-conviction habeas petition are:

  • Your former lawyer gave you ineffective legal counsel.
  • The prosecutor violated the law by convicting you.
  • A higher court has acknowledged a new constitutional right that applies to your case going back in time.
  • Newly discovered evidence
  • When a court’s or officer’s jurisdiction has been exceeded
  • Even though the petitioner’s imprisonment was initially legal, due to a subsequent act, omission, or circumstance, the petitioner is now eligible for release.
  • When the procedure lacks a necessary substantive element, it becomes invalid.
  • When a legal case is not covered by the process, despite its full formalities
  • When the person in charge of the petitioner is not authorized by law to keep them in custody
  • When the procedure is not permitted by a court’s decision, order, or decree, or by any statutory provision
  • When the petitioner has been arrested or charged with a crime, including a misdemeanor, except a misdemeanor violation of [traffic rules] without a fair or compelling reason
  • When a law or ordinance is applied in a way that renders it unconstitutional, it becomes unlawful on its face. This situation arises when the petitioner faces charges for a crime or is indicted on a related offense under such a law or ordinance.
  • When the court determines that the petitioner’s constitutional rights have explicitly been violated due to their conviction or sentence within a criminal case, it indicates a clear violation of their constitutional rights.

Habeas Petition Las Vegas, NV

What is the difference between a habeas petition and a writ of habeas corpus?

A habeas petition and a writ of habeas corpus are two related legal concepts. Here’s an explanation of the difference between the two:

  • Writ of Habeas Corpus: A writ of habeas corpus is a legal document, often issued by a court, that commands a person or entity holding another person (referred to as the “custodian”) to produce the detained individual and provide a lawful reason for their detention. It is a fundamental legal right that safeguards against unlawful and arbitrary imprisonment. The writ of habeas corpus challenges the legality of a person’s detention and ensures that individuals are not unlawfully deprived of their liberty.
  • Habeas Petition: A habeas petition, on the other hand, refers to the actual legal filing or application made to a court seeking a writ of habeas corpus. It is a formal request or motion made by the detainee or their legal representative to the court, asking for relief from their imprisonment or challenging the legality of their detention. The habeas petition typically outlines the grounds for the detainee’s claim that their detention is unlawful or unconstitutional.

In summary, the writ of habeas corpus is the legal order issued by the court, commanding the custodian to produce the detained individual. In contrast, a habeas petition is the written application or motion made to the court seeking to issue the writ of habeas corpus to challenge the legality of the detention. The petition is the vehicle through which an individual exercises their right to seek relief through the writ.

How does the court process a habeas petition in Nevada?

In Nevada, the court process for a habeas petition involves several steps to review the legality of a person’s detention or imprisonment.

Here’s an overview of the process:

  • Filing the Petition: The first step is for the petitioner, or their legal representative, to file a habeas corpus petition with the appropriate court. In Nevada, the county’s district court where the petitioner was convicted is the proper venue.
  • Service of Petition: Once the petition is filed, a copy must be served in the Nevada Attorney General’s office and by the warden or custodian of the facility where the petitioner is held.
  • Answer and Evidentiary Hearing: The state then has a period of time to respond to the petition, typically within a specified deadline set by the court. The response is known as an answer. If the court finds that the petition raises substantial issues, it may schedule an evidentiary hearing to allow both parties to present evidence and arguments.  It is very important to properly prepare for the hearing and to subpoena any witnesses to testify on the petitioner’s behalf. 
  • Court Decision: After reviewing the petition, the state’s answer, standing any supporting documentation, and evidence presented during an evidentiary hearing, the court will decide. The court may dismiss the petition if it determines there are no grounds for relief or that it is untimelu.  Alternatively, the court can grant the petition, ordering the petitioner’s release or a new trial.
  • Appeals: If the court denies the petition, the petitioner may have the option to appeal the decision to the Nevada Supreme Court. The appeals process can involve submitting written briefs, presenting oral arguments, and ultimately seeking a reversal of the lower court’s decision.

It’s important to note that this is a general outline of the process, and specific procedures and timelines may vary depending on the circumstances of each case and any applicable legal rules or precedents. Also, there are very, very specific deadlines you have to file your Petition.  It can be fatal if your petition is not timely filed. 


If you are involved in a habeas corpus proceeding, it’s recommended to consult with an attorney who can provide guidance tailored to your exact situation.

What are the grounds for habeas corpus in Nevada?

The grounds for habeas corpus are primarily based on violations of constitutional rights or unlawful detentions. 

Under Nevada law, the grounds for filing a habeas corpus petition can include, but are not limited to, the following:

  • Unlawful Arrest or Detention: If a person believes they have been arrested or detained as a prisoner without probable cause, they may file a habeas corpus petition to challenge the procedural lawfulness of their arrest or detention.
  • Violations of Constitutional Rights: If a person alleges that their constitutional rights have been violated during their arrest, trial, or imprisonment, they can seek habeas corpus relief. That may include claims of violations of the Fourth Amendment (unreasonable searches and seizures), the Fifth Amendment (self-incrimination, due process), the Sixth Amendment (right to counsel, fair trial), or any other relevant constitutional provision.
  • Ineffective Assistance of Counsel: If a person believes that their attorney provided ineffective assistance during their trial or appeal, violating their constitutional rights, they may seek habeas corpus relief. To succeed, they must demonstrate that their lawyers’ performance fell below an objective standard of reasonableness and that this deficiency prejudiced their defense.
  • Newly Discovered Evidence: If new evidence comes to light that was not available during the trial and substantially impacts the case, an individual may file a habeas corpus petition. The new evidence must be of such a nature that it would likely change the outcome of the trial if it had been presented.
  • Expiration of Sentence or Parole Eligibility: If a person’s sentence has expired but is still unlawfully detained, they can also file habeas corpus petitions. Likewise, individuals who become eligible for parole but are unjustifiably denied can seek habeas corpus relief.

Consulting with an attorney specializing in criminal defense or habeas corpus litigation is advisable if someone is considering filing a petition for habeas corpus.

What is the procedure for filing for habeas corpus in Nevada?

You or your Nevada criminal defense lawyer can submit a petition for a writ of habeas corpus.

In your petition, you must generally state:

  • The fact that you’re held as a prisoner or have restrictions on your freedom.
  • The venue where you were confined
  • The officer(s) or another person (s), by name, if known by or else through the description, who (has) imprisoned or restrained you.
  • The details that back up your claim if the foundation for your petition is unlawful restraint or detention
  • If your petition seeks relief from a criminal judgment of guilt or sentence, include a description of the processes in which you have been convicted, including:
    • The date on which the final judgment was entered
    • Any prior legal action you’ve taken in a state or federal court to challenge your sentence or conviction
    • Which fundamental rights do you feel were abused
    • The acts that violate those rights.

Affidavits, documents, or other proof supporting the allegations should be attached with your petition (or a justification should these be missing). There is no need for an argument, references, or other proof if you are filing without an attorney, also called representing yourself “in proper person.”

The habeas corpus petition form in Nevada courts is available at Nevada Revised Statutes (NRS) 34.735. Petitions that fail to adhere to NRS 34.735 may face potential denial.

After completing your petition, you should send the original and one copy to the district court clerk in the Nevada county where you were found guilty. Send one copy by mail to:

  • The respondent (the party detaining you against your will)
  • The Attorney General’s Office
  • If you contest your first conviction or sentence, go to the county’s district attorney or the original prosecutor, where you were found guilty.

Things will move rapidly as soon as you complete all the above mentioned tasks. According to Nevada law, judges must quickly review habeas corpus petitions.

Generally, the District Attorney or Attorney General has 45 days to respond to your claims.  

After reviewing each document, the court will decide whether or not an evidentiary hearing is necessary. If the judge decides that your petition might have validity, the judge will

  • Grant the writ and
  • Setting a date for the hearing

If not, the judge will summarily dismiss your petition without a hearing.

Reasons for dismissing a habeas corpus petition frequently include:

  • There is no claim that the plea was submitted freely, unknowingly, or without the proper assistance of counsel. The initial conviction depended on a plea of guilty or guilty but mentally ill.
  • The conviction is the outcome of a trial, and the reasons for the petition might have been:
    • Presented at trial
    • Raised in a previous writ of habeas corpus petition, direct appeal, or other post-conviction relief petition
    • Raised on any other legal action you took to get your sentence and conviction overturned

In other words, if you can raise the arguments in a different court but choose not to, your request for habeas corpus will be denied.

However, even if the court determines both of the following:

  • Reasonable justification in place for your failure to assert such grounds (like ineffective legal representation), and
  • Actual prejudice against you.

Habeas Petition Las Vegas, Nevada

What are the possible outcomes of a habeas petition in Nevada?

The possible outcomes of a habeas petition can vary depending on the specific circumstances and the arguments presented. 

Please note that legal outcomes can be highly case-specific, and it’s essential to consult a qualified defense attorney for accurate advice.

  • Habeas Petition Granted: If the court grants the habeas petition, the petitioner’s detention is deemed unlawful or unconstitutional. The court may immediately order the petitioner’s release from custody or subject to certain conditions. Alternatively, the original charges may be reinstated and the court may order a new trial or remedy the violation that led to the unlawful detention of a prisoner. In some cases, the court might find that the petitioner exhausted all available remedies, adhered to the forum requirements, and waived any potential procedural default.
  • Habeas Petition Denied: If the court denies the habeas petition, the petitioner’s detention is considered lawful and constitutional. In such cases, the individual remains in custody, and the court upholds the legality of their confinement. The court may find that the petitioner failed to meet the requirements for exhaustion, waived specific claims, or encountered procedural defaults that bar relief.
  • Habeas Petition Partially Granted: Sometimes, the court may partially grant the habeas petition. This outcome could involve a situation where the court finds a constitutional violation but does not order the petitioner’s immediate release. Instead, the court might grant a new trial, modify the sentence, or provide other relief. The court may evaluate whether the claims raised are moot or if the petitioner waived some grounds for relief.
  • Habeas Petition Dismissed: The court may dismiss a habeas petition if its claims lack merit or fail to meet the legal requirements for habeas relief. Dismissal means that the court finds no constitutional violations or other grounds to support the petitioner’s request for relief. The court might consider whether the claims are moot or the petitioner waives certain arguments.
  • Habeas Petition Stayed or Deferred: Sometimes, the court may choose to stay or defer the habeas petition for various reasons. It could occur if there are pending related legal proceedings, such as an ongoing appeal or other collateral challenges. The court may delay ruling on the petition until those proceedings are resolved. In such cases, the court might consider whether the petitioner exhausted all remedies before seeking habeas relief and whether a waiver or mootness issue is present.

It’s essential to recognize that these outcomes are not exhaustive, and the court’s verdict may depend on the specific facts, legal arguments, and applicable laws in each case. 

Legal complexities and individual circumstances play significant roles in determining the outcome of a habeas petition in Nevada or any other jurisdiction. 

What is the Time Limit for Filing a Habeas Petition

You must submit a post-conviction petition regarding habeas corpus one year after the filing of your judgment of conviction or one year from the date Remittitur issues after the denial of an appeal. The quickest approach to meeting the deadline is to employ a lawyer to file your petition on time rather than attempting to make a justification purpose for an untimely filing after the fact. However, there are several exceptions to these time restrictions for good reason. From this part, you must speak with an attorney about the schedule that applies to your specific situation. 

How Can A Lawyer Help You With Your Habeas Petition?

 A lawyer can play a crucial role in helping you with your habeas petition. Here’s how a lawyer can assist you with your habeas petition:

  1. Legal expertise: A lawyer specializing in habeas corpus cases will have in-depth knowledge of the relevant laws, regulations, and legal procedures. From this, you can find relief as they understand the complexities involved and can guide you and any client through the process.
  2. Case evaluation: A lawyer will carefully review your case and assess its strengths and weaknesses. They will analyze the evidence, examine the trial proceedings, and identify potential grounds for a habeas corpus claim. This evaluation is crucial in determining whether you have a valid basis for challenging your detention.
  3. Drafting the petition: A compelling and well-structured petition is essential for effectively presenting your case. A lawyer will prepare and draft the habeas corpus petition on your behalf, ensuring it adheres to the specific legal requirements and addresses the relevant constitutional violations or errors. They will use their legal expertise to present your claims persuasively.
  4. Court representation: A lawyer will represent you throughout the habeas corpus proceedings. They will argue your case before the judge, present the evidence, cross-examine witnesses if necessary, and advocate for your rights. Their courtroom experience and knowledge of legal strategies can significantly enhance your chances of success.
  5. Procedural compliance: Habeas corpus petitions involve complex procedural rules and strict deadlines. An attorney will ensure that all the necessary documents or paperwork are filed correctly and within the specified time limits. They will handle all procedural aspects of your case, minimizing the risk of technical errors that could jeopardize your petition.

Get Help from a Las Vegas Defense Attorney

If you’re facing legal challenges and seeking assistance with a Habeas Petition in Las Vegas, look no further at Hinds Injury Law Las Vegas. Our experienced team of defense attorneys is here to help you navigate the complex legal process and protect your rights.

With a deep understanding of habeas corpus laws, we are dedicated to fighting for justice on your behalf. Whether you need guidance, representation, or strategic advice, our attorneys are ready in all ways to provide you with the expertise and support you need. 

For questions and more information, contact us at (702) 940-1234 or schedule a consultation.