SB 3 — Revises provisions governing postconviction petitions for a writ of habeas corpus that challenge the computation of time served in incarceration by an offender. (BDR 3-411)

EXEMPTSenate (ReprintedBill withNo. amendments adopted on April 15, 2019) FIRST REPRINT S.B.

33–Committee SENATEon BILLJudiciary NOCHAPTER.......... .

3–COMMITTEE ON JUDICIARY (O N BEHALF OF THE A TTORNEY G ENERAL ) PREFILED N OVEMBER 14, 2018 ____________ Referred to Committee on Judiciary SUMMARY—Revises provisions governing postconviction petitions for a writ of habeas corpus that challenge the computation of time served in incarceration by an offender.

(BDR 3-411) FISCAL NOTE:

Effect on Local Government:

No.

Effect on the State:

Yes.

~ EXPLANATION – Matter in bolded italics is new;

matter between brackets [omitted material] is material to be omitted.

LegExistingLegislative lawCounsel’s authorizesDigest: an offender who is convicted of a crime and under a sentence of death or imprisonment and who claims that the time served by the offender has been improperly computed to file a postconviction petition for a writ of habeas corpus.

(NRSsentence 34.724)of Sectiondeath 1or ofimprisonment thisand billwho requiresclaims anthat offenderthe totime exhaustserved allby administrativether remediesa availableoffender has been improperly computed to resolvefile a challengepostconviction topetition thefor a petition.writ of habeas corpus.

(NRS 34.724) Section 31 of this bill requires aan courtoffender to dismissexhaust withoutall prejudiceadministrative aremedies petitionavailable forto resolve a writchallenge ofto habeas corpus that challenges the computation of time that the offender has served ifbefore the court determines that the offender hasmay notfile exhaustedsuch alla availablepetition. administrative remedies.

Section 43 of this bill requires thea Departmentcourt of Corrections to adoptdismiss regulationswithout toprejudice establish procedures for the resolution of a -offender *SB3_R1*has –served 2if – within 180 days immediately preceding the expirationcourt datedetermines ofthat the offender’soffender termhas ofnot imprisonmentexhausted asallhe calculatedavailable byadministrative theremedies. Department.

Section 54 of this bill makesrequires the Department of Corrections to adopt regulations to establish procedures for the resolution of a conformingchallenge change.to the computation of time that an offender has served that is brought within 180 days immediately preceding the expiration date of the offender’s term of imprisonment as calculated by the Department.

ExistingSection 5 of this bill makes a confExisting law further requires a petition for a writ of habeas corpus challenging the validity of a conviction or sentence to be filed with the clerk of the district court for the county in which the conviction occurred.

Existing law also requires any other petition for a writ of habeas corpus to be filed in the district court for the county in which the person is incarcerated.

(NRS 34.738) Section 2 of this billrbill the requires a person incarcerated outside this State, while serving a Nevada sentence, to filefSection such6 of this bill provides that the amendatory provisions of this bill do not apply to a postconviction petition infor a writ of habeas corpus that challenges the Firstcomputation Judicialof Districttime Courtthat ina Carsonpetitioner City.has served that is filed on or before January 1, 2020.

Section- 680th ofSession this(2019) bill– provides2 that– theEXPLANATION amendatory– provisionsMatter ofin thisbolded billitalics do not apply to a postconviction petition for a writ of habeas corpus that challenges the 2020.tation of time that a petitioner has served that is filednew; on or before January 1, THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Sectionmatter 1.between brackets [omitted material] is material to be omitted.

THE SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:D IN Section 1.

(b) Comprehends and takes the place of all other common-law, statutory or other remedies which have been available forforn-law, challenging the validity of the conviction or sentence, and must be used exclusively in place of them.

- *SB3_R1* – 3 – (a) The person has not filed a prior motion to withdraw the plea and has not filed a prior postconviction petition for a writ of habeas corpus;

(c) At the time the person files the motion to withdraw the plea, the person is not incarcerated for the charge for which the person entered the plea;

andandarcerated for the charge for which the person - 80th Session (2019) – 3 – (d) The motion is not barred by the doctrine of laches.

A petition that challenges the validity of a conviction or sentence must be filed with the clerk of the district courtpetition formust be filed with the countyclerk inof which[the thedistrict convictioncourt occurred.for the] :

Any other petition must be filed with the clerk of [the district court for the] :

or (b) The First Judicial District Court in and for Carson City, if the petitioner is incarcerated outside this State while serving aifa term of imprisonment imposed by a court of this State.

appropriate2. county:that is not filed in the district court for the (a) Shall be deemed to be filed on the date it is received by the clerk of the district court in which the petition is initially lodged;

A petition that is not filed in the district court for the appropriate county:

(a) Shall be deemed to be filed on the date it is received by the clerk of the district court in which the petition is initially lodged;

If a petition improperly challenges both the validity of a judgment of conviction or sentence and the computation of time that the petitioner has served pursuant to that judgment, the district court for the appropriate county shall resolve that portion of the petition that challenges the validity of the judgment of conviction or sentencesentencet and dismiss the remainder of the petition without prejudice.

- *SB3_R1* – 4 – (a) The petitioner’s conviction was upon a plea of guilty or guilty but mentally ill and the petition is not based upon an allegation that the plea was involuntarily or unknowingly entered or that the plea was entered without effective assistance of counsel.

- 80th Session (2019) – 4 – (2) Raised in a direct appeal or a prior petition for a writ of habeas corpus or postconviction relief;

A second or successive petition must be dismissed if the judge or justice determines that it fails to allege new or different grounds for relief and that the prior determination was on the merits or, if new and different grounds are alleged, the judge or justice finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.

and (b) TheActual petitionerprejudice shallto include in the petitionpetitioner. all prior proceedings in which the petitioner challenged the same conviction or sentence.

(a) The petitioner shall include in the petition challengesall prior proceedings in which the computationpetitioner ofchallenged timethe thatsame the:conviction or sentence.

petitioner4. has served pursuant to a judgment of conviction;

The court shall dismiss a petition without prejudice if:

(a) The petition challenges the computation of time that the petitioner has served pursuant to a judgment of conviction;