EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

1-1 Section 1. Chapter 34 of NRS is hereby amended by adding thereto

1-2 the provisions set forth as sections 2 to 16, inclusive, of this act.

1-3 Sec. 2. As used in sections 2 to 16, inclusive, of this act, unless the

1-4 context otherwise requires, the words and terms defined in sections 3 to

1-5 7, inclusive, of this act have the meanings ascribed to them in those

1-6 sections.

1-7 Sec. 3. "Application" means an application for authorization to

1-8 submit a petition on behalf of a real party in interest.

1-9 Sec. 4. "Disability" means a condition similar to inaccessibility or

1-10 mental incompetence that actually prevents an offender from filing a

1-11 petition or authorizing counsel to file petition.

1-12 Sec. 5. "Mentally incompetent" means:

1-13 1. Having an insufficient present ability, because of a mental disease

1-14 or defect, to authorize counsel to file a petition; or

2-1 2. Lacking an understanding, because of a mental disease or defect,

2-2 that proceedings may be undertaken to challenge a conviction or

2-3 sentence.

2-4 Sec. 6. "Petition" means a post-conviction petition for a writ of

2-5 habeas corpus.

2-6 Sec. 7. "Real party in interest" means an offender who:

2-7 1. Has been sentenced to death or imprisonment; and

2-8 2. Is not able to file a petition because of inaccessibility, mental

2-9 incompetence or another disability.

2-10 Sec. 8. 1. A person who is 18 years of age or older may file an

2-11 application.

2-12 2. An application must be filed with the clerk of the district court in

2-13 the county in which the conviction of the real party in interest occurred.

2-14 If an applicant files an application in a different court, that court:

2-15 (a) Shall not transfer the application to the appropriate court;

2-16 (b) Shall not enter a stay of the carrying out of the sentence of the real

2-17 party in interest; and

2-18 (c) Shall summarily dismiss the application without prejudice.

2-19 3. An application must:

2-20 (a) Be signed and sworn to under penalty of perjury by the applicant.

2-21 (b) Name as respondent, and be served upon, the officer or other

2-22 person by whom the real party in interest is confined or restrained. A

2-23 copy of the application and any supporting documentation must be

2-24 served by mail upon the attorney general and the district attorney in the

2-25 county in which the real party in interest was convicted.

2-26 4. The clerk of the district court shall file an application:

2-27 (a) As a new action that is distinct from the original proceeding

2-28 pursuant to which the real party in interest was convicted.

2-29 (b) With the record of the original proceeding pursuant to which the

2-30 real party in interest was convicted.

2-31 5. An application must, if possible, be assigned to the judge or court

2-32 of the original proceeding pursuant to which the real party in interest

2-33 was convicted.

2-34 6. The district judge shall summarily dismiss with prejudice any:

2-35 (a) Application submitted by a person who is less than 18 years of age;

2-36 (b) Incomplete application; or

2-37 (c) Application that is not signed and sworn to under penalty of

2-38 perjury by the applicant.

2-39 Sec. 9. An application must be in substantially the following form:

2-40 Case No.

2-41 Dept. No.

3-1 IN THE....................JUDICIAL DISTRICT COURT OF THE

3-2 STATE OF NEVADA IN AND FOR THE COUNTY OF....................

3-3 ..............., Applicant, on behalf of

3-4 ..............., Real Party in Interest,

3-5 APPLICATION TO SUBMIT PETITION

3-6 v. FOR WRIT OF HABEAS CORPUS ON

3-7 BEHALF OF REAL PARTY IN INTEREST

3-8

3-9 Respondent.

3-10 INSTRUCTIONS:

3-11 1. This application must be legibly handwritten or typewritten and

3-12 signed by the applicant under penalty of perjury.

3-13 2. Additional pages are not permitted except where noted or with

3-14 respect to the facts or bases upon which you rely to support your claim of

3-15 standing. An application will be dismissed if you are less than 18 years of

3-16 age, you fail to specifically answer a question or complete a portion of

3-17 the application, or you fail to sign and swear to the application under

3-18 penalty of perjury.

3-19 3. You must name as respondent the person by whom the real party

3-20 in interest is confined or restrained. If the real party in interest is in a

3-21 specific institution of the department of prisons, you must name the

3-22 warden or head of the institution. If the real party in interest is not in a

3-23 specific institution of the department but is within the custody of the

3-24 department, you must name the director of the department of prisons.

3-25 4. You must specify in your application any fact that you believe will

3-26 support your claim of standing to file a petition for a writ of habeas

3-27 corpus on behalf of the real party in interest. Failure to allege specific

3-28 facts rather than just conclusions will cause your petition to be dismissed.

3-29 After this application has been filed with the appropriate district court,

3-30 you will not be allowed to amend the application or assert any new fact

3-31 or basis supporting your claim of standing. The district court will not

3-32 consider any fact or basis supporting your claim of standing other than

3-33 the facts and bases included in this application.

3-34 5. After the application is fully completed, the original application

3-35 and one copy of the application must be filed with any supporting

3-36 documentation or exhibits with the clerk of the district court for the

3-37 county in which the conviction of the real party in interest occurred. One

3-38 copy of the application, together with a copy of any supporting

3-39 documentation and exhibits, must be mailed to:

3-40 (a) The respondent;

4-1 (b) The attorney general; and

4-2 (c) The district attorney of the county in which the real party in

4-3 interest was convicted.

4-4 Copies of the application and any supporting documentation and exhibits

4-5 must conform in all particulars to the original application,

4-6 documentation and exhibits submitted to the district court for filing.

4-7 APPLICATION

4-8 1. Name of the institution and county in which the real party in

4-9 interest is presently imprisoned or where and how the real party in

4-10 interest is presently restrained of his liberty:

4-11

4-12 2. Name and location of the court that entered the judgment of

4-13 conviction pursuant to which the real party in interest is presently

4-14 restrained:

4-15

4-16 3. Date of the judgment of conviction:

4-17 4. Case number:

4-18 5. (a) Length of the sentence:

4-19

4-20 (b) If the sentence is death, state any date upon which execution is

4-21 scheduled:

4-22 6. Is the real party in interest presently serving a sentence for a

4-23 conviction other than the conviction that you will seek to

4-24 attack? Yes ........ No ........

4-25 If "yes," list the crime, case number and sentence being served at this

4-26 time by the real party in interest:

4-27

4-28

4-29 7. Nature of the offense involved in the conviction that you intend to

4-30 challenge:

4-31

4-32 8. What was the plea of the real party in interest? (check one)

4-33 (a) Not guilty ........

4-34 (b) Guilty ........

4-35 (c) Guilty but mentally ill .......

4-36 (d) Nolo contendere ........

4-37 9. If the real party in interest entered a plea of guilty or guilty but

4-38 mentally ill to one count of an indictment or information, and a plea of

4-39 not guilty to another count of an indictment or information, or if a plea

4-40 of guilty or guilty but mentally ill was negotiated, give the details:

4-41

4-42

5-1 10. If the real party in interest was found guilty after a plea of not

5-2 guilty, was the finding made by: (check one)

5-3 (a) Jury ........

5-4 (b) Judge without a jury ........

5-5 11. Did the real party in interest testify at the trial?

5-6 Yes ........ No ........

5-7 12. Did you testify at the trial? Yes ........ No ........

5-8 13. Did the real party in interest appeal from the judgment of

5-9 conviction? Yes ........ No ........

5-10 14. If the real party in interest did appeal, answer the following:

5-11 (a) Name of the court:

5-12 (b) Case number or citation:

5-13 (c) Result:

5-14 (d) Date of the result:

5-15 (Attach a copy of the order or decision, if available.)

5-16 15. If the real party in interest did not appeal, explain in detail,

5-17 including all the information available to you and citing the sources for

5-18 your information, why the real party in interest did not appeal:

5-19

5-20

5-21 16. Have you ever before sought or applied for next friend status on

5-22 behalf of the real party in interest or another person or filed any other

5-23 applications pursuant to this chapter or a law of another jurisdiction on

5-24 behalf of the real party in interest or another person? Yes ........ No ........

5-25 If "yes," list all other applications and instances in which you sought

5-26 next friend status. Provide the complete caption of the case, including,

5-27 without limitation, the name of any real party in interest, the name of the

5-28 respondent or defendant, the name of the jurisdiction and the court, and

5-29 the case number. State the basis upon which the application was made or

5-30 the next friend status was sought. If any appeal from a denial was made,

5-31 provide the complete caption of the case on appeal. State the result of any

5-32 appeal. Attach a copy of any dispositive court order relating to those

5-33 applications or instances in which you sought next friend status:

5-34

5-35

5-36 17. Have you made any other application on behalf of the real party

5-37 in interest pursuant to this chapter? Yes ........ No ........

5-38 If "yes," provide the complete caption of the case, including, without

5-39 limitation, the name of the court and the case number or citation. State

5-40 the result of the application, including, without limitation, whether the

5-41 case is still pending:

5-42

5-43

6-1 18. Are you aware of an application in another jurisdiction in which a

6-2 person sought next friend status for the real party in

6-3 interest? Yes ........ No ........

6-4 If "yes," provide the complete caption of the case, including, without

6-5 limitation, the name of the applicant in the other jurisdiction, the name

6-6 of the respondent or defendant, the name of the jurisdiction and the

6-7 court, and the case number. Attach a copy of any dispositive court order

6-8 relating to such an application or instance in which another person

6-9 sought next friend status on behalf of the real party in interest:

6-10

6-11

6-12 19. Does the real party in interest have any petition or appeal now

6-13 pending in any court, either state or federal, as to the judgment sought to

6-14 be attacked? Yes ........ No ........

6-15 If yes, state what court and the case number:

6-16

6-17 20. Give the name of each attorney who represented the real party in

6-18 interest in the proceeding resulting in the conviction of the real party in

6-19 interest:

6-20

6-21 21. Does the real party in interest have any future sentences to serve

6-22 after he completes the sentence imposed by the judgment sought to be

6-23 attacked? Yes ........ No ........

6-24 If yes, specify where and when it is to be served, if you know:

6-25

6-26

6-27 22. State every fact upon which you claim that the real party in

6-28 interest cannot, because of inaccessibility, mental incompetence or

6-29 another disability, appear on his own behalf to pursue a petition for a

6-30 post-conviction writ of habeas corpus pursuant to NRS 34.720 to 34.830,

6-31 inclusive. Attach any supporting documentation and exhibits to the

6-32 application:

6-33

6-34

6-35 23. State every fact upon which you claim that the real party in

6-36 interest is unrepresented and is incompetent or otherwise unable to

6-37 authorize his counsel to submit a petition on his behalf:

6-38

6-39 24. State every fact upon which you claim that you are acting

6-40 dedicated to the best interests of the real party in interest. Attach any

6-41 supporting documentation and exhibits to the application:

6-42

6-43

7-1 25. State every fact upon which you claim that you are related to the

7-2 real party in interest in the first degree of consanguinity. Attach any

7-3 supporting documentation and exhibits to the application:

7-4

7-5 WHEREFORE, the applicant prays that the court grant the applicant

7-6 next friend status and authorize the applicant to submit a petition for a

7-7 writ of habeas corpus pursuant to NRS 34.720 to 34.830, inclusive, on

7-8 behalf of the real party in interest.

7-9 EXECUTED at ......................... on the ........ day of ................, 19....

7-10

7-11 Signature of petitioner

7-12

7-13 Address

7-14

7-15 Signature of attorney (if any)

7-16

7-17 Attorney for applicant

7-18

7-19 Address

7-20 VERIFICATION

7-21 Under penalty of perjury, the undersigned applicant declares that he is

7-22 the applicant named in the foregoing application and knows the contents

7-23 thereof; that the pleading is true of his own knowledge, except as to those

7-24 matters stated on information and belief, and as to such matters he

7-25 believes them to be true.

7-26

7-27 Applicant

7-28

7-29 Notary

7-30 VERIFICATION OF ATTORNEY (IF ANY)

7-31 Under penalty of perjury, the undersigned attorney declares that he is

7-32 the attorney for the applicant named in the foregoing application and

7-33 knows the contents thereof; that the pleading is true of his own

7-34 knowledge, except as to those matters stated on information and belief,

7-35 and as to such matters he believes them to be true.

7-36

7-37 Attorney for petitioner

7-38

7-39 Notary

8-1 CERTIFICATE OF SERVICE BY MAIL

8-2 I, ..................................., hereby certify pursuant to N.R.C.P. 5(b), that

8-3 on this ........... day of .................................., 19....., I mailed a true and

8-4 correct copy of the foregoing APPLICATION TO SUBMIT PETITION

8-5 FOR WRIT OF HABEAS CORPUS ON BEHALF OF REAL PARTY

8-6 IN INTEREST addressed to:

8-7

8-8 Respondent prison or jail official

8-9

8-10 Address

8-11

8-12 Attorney General

8-13 Heroes’ Memorial Building

8-14 Capitol Complex

8-15 Carson City, Nevada 89710

8-16

8-17 District Attorney of County of Conviction

8-18

8-19 Address

8-20

8-21 Signature of Applicant

8-22 Sec. 10. 1. There is a presumption that an applicant does not have

8-23 standing to file a petition on behalf of the party in real interest.

8-24 2. Before an applicant may petition a court for a writ of habeas

8-25 corpus on behalf of the real party in interest, the applicant must establish

8-26 standing by proving by clear and convincing evidence that:

8-27 (a) The real party in interest:

8-28 (1) Is not able to appear on his own behalf to petition the court for

8-29 the writ of habeas corpus because of inaccessibility, mental incompetence

8-30 or another disability; and

8-31 (2) Is not represented by counsel and is incompetent or otherwise

8-32 unable to authorize counsel to petition on his behalf; and

8-33 (b) The applicant is:

8-34 (1) Dedicated to the best interests of the real party in interest; and

8-35 (2) Related to the real party in interest in the first degree of

8-36 consanguinity.

8-37 3. The applicant:

8-38 (a) Shall describe in detail the evidence upon which he claims

8-39 standing;

9-1 (b) Shall include with the application all evidence that supports the

9-2 claim of standing, including, without limitation, affidavits, other

9-3 documentary evidence and exhibits; and

9-4 (c) May not amend the application or the supporting evidence after

9-5 the application has been filed.

9-6 Sec. 11. 1. After an application has been properly filed with a

9-7 district court, the clerk of the court shall promptly present the application

9-8 to the appropriate district judge.

9-9 2. The district judge shall examine the application not later than 5

9-10 days after the date on which the application was filed to determine

9-11 whether the application:

9-12 (a) Was filed by an applicant who is 18 years of age or older;

9-13 (b) Is complete;

9-14 (c) Contains assertions of standing, which, if true, would be sufficient

9-15 as a matter of law to establish standing;

9-16 (d) Describes in detail the evidence that supports each of the

9-17 assertions of standing;

9-18 (e) Includes evidence that supports each of the assertions of standing;

9-19 and

9-20 (f) Is signed and sworn to under penalty of perjury by the applicant.

9-21 3. If any of the items listed in subsection 2 is missing or insufficient,

9-22 the judge shall summarily dismiss the application with prejudice.

9-23 4. If the judge determines that all the items listed in subsection 2 are

9-24 present and sufficiently detailed, the judge shall order the district

9-25 attorney to answer or otherwise respond to the application not later than

9-26 28 days after being so ordered by the court, unless the court grants the

9-27 district attorney additional time for good cause shown. The order must be

9-28 in substantially the following form:

9-29 Case No.

9-30 Dept. No.

9-31 IN THE....................JUDICIAL DISTRICT COURT OF THE

9-32 STATE OF NEVADA IN AND FOR THE COUNTY OF....................

9-33 ..............., Applicant, on behalf of

9-34 ..............., Real Party in Interest,

9-35 v. ORDER

9-36

9-37 Respondent.

10-1 Applicant filed a petition to pursue a writ of habeas corpus on behalf of

10-2 the real party in interest on ............, 19.... The court has reviewed the

10-3 petition and has determined that a response would assist the court in

10-4 determining whether the applicant has standing to pursue such a

10-5 petition. Respondent shall, within …… days after the date of this order,

10-6 answer or otherwise respond to the application and file a return in

10-7 accordance with the provisions of NRS 34.360 to 34.830, inclusive.

10-8 Dated ....................., 19....

10-9

10-10 District Judge

10-11 A copy of the order must be served on the applicant or his counsel, if any,

10-12 the respondent, the attorney general and the district attorney of the

10-13 county in which the real party in interest was convicted.

10-14 5. If the application alleges that the real party in interest is mentally

10-15 incompetent, the judge shall appoint three licensed psychologists or

10-16 psychiatrists who have not previously examined the real party in interest

10-17 to examine the real party in interest to determine whether he is mentally

10-18 incompetent. The psychologists or psychiatrists shall report their findings

10-19 to the court, the district attorney and the applicant.

10-20 6. After the district attorney has filed his answer or response and any

10-21 findings from psychologists and psychiatrists have been reported, the

10-22 judge shall examine the application, answer or response, any findings

10-23 from an examination by a psychologist or psychiatrist of the real party in

10-24 interest and any other supporting documents or exhibits to determine

10-25 whether an evidentiary hearing is necessary.

10-26 7. If the judge determines that:

10-27 (a) The applicant, as a matter of law, does not have standing, the

10-28 judge shall summarily dismiss the application with prejudice and without

10-29 a hearing.

10-30 (b) An evidentiary hearing is necessary, the judge shall conduct the

10-31 hearing expeditiously and limit the hearing to a determination of whether

10-32 the applicant has standing. The evidentiary hearing must be recorded.

10-33 The judge shall require the authentication of any material submitted in

10-34 support of a claim of standing. The judge shall render a decision

10-35 regarding the application within 60 days after the date the application

10-36 was filed.

10-37 8. The judge shall not grant a request from the applicant for

10-38 discovery.

10-39 Sec. 12. Regardless of whether an evidentiary hearing was held

10-40 pursuant to section 11 of this act, a final decision or order concerning an

10-41 application must:

11-1 1. Contain specific findings of fact and conclusions of law

11-2 supporting the decision of the court; and

11-3 2. Be served by the clerk of the court upon the applicant and his

11-4 counsel, if any, the respondent, the attorney general and the district

11-5 attorney of the county in which the real party in interest was convicted.

11-6 Sec. 13. If the district court determines that an applicant has

11-7 standing to file a petition on behalf of a real party in interest:

11-8 1. The court shall allow the applicant to proceed in the same manner

11-9 that the real party in interest could proceed pursuant to NRS 34.720 to

11-10 34.830, inclusive.

11-11 2. Counsel may be appointed for the applicant pursuant to NRS

11-12 34.750 or 34.820 as if the applicant were the real party in interest. A

11-13 district judge shall not appoint counsel for an applicant before the

11-14 district court has determined that the applicant has standing.

11-15 3. No right to counsel or to effective assistance of counsel is created

11-16 by this section.

11-17 Sec. 14. 1. A judge or justice may not stay the carrying out of a

11-18 sentence of a real party in interest pursuant to the submission of an

11-19 application until:

11-20 (a) The district judge has determined that the applicant has standing;

11-21 and

11-22 (b) The applicant has filed a petition on behalf of the real party in

11-23 interest.

11-24 2. A judge or justice may not stay the carrying out of a sentence of a

11-25 real party in interest pending an appeal of an application.

11-26 3. Any stay granted pursuant to this section must not be contrary to

11-27 any other provision of law.

11-28 Sec. 15. 1. An applicant who has been denied standing to submit a

11-29 petition on behalf of a real party in interest may appeal the decision to

11-30 the supreme court not later than 30 days after receiving notice of the

11-31 decision.

11-32 2. The State of Nevada is an interested party in the proceedings for

11-33 an application made pursuant to sections 2 to 16, inclusive, of this act. If

11-34 the district court finds that the applicant has standing to file a petition on

11-35 behalf of the real party in interest, the district attorney of the county in

11-36 which the applicant was submitted or the attorney general may appeal

11-37 the decision to the supreme court not later than 30 days after receiving

11-38 notice of the decision.

11-39 3. If the applicant, district attorney or attorney general appeals the

11-40 decision of the district court:

11-41 (a) The clerk of the district court shall certify and transmit to the

11-42 supreme court:

12-1 (1) The application and the accompanying evidence that supports

12-2 each of the assertions of standing; and

12-3 (2) If either party requests it, a transcript of any evidentiary hearing

12-4 held pursuant to section 11 of this act.

12-5 (b) The court, if necessary, shall direct the court reporter to expedite

12-6 the preparation of the transcript of the evidentiary hearing in preference

12-7 to any request for a transcript of a civil action.

12-8 (c) The parties may not submit legal briefs or present oral argument

12-9 unless specifically ordered to do so by the supreme court.

12-10 Sec. 16. The filing of an application pursuant to sections 2 to 16,

12-11 inclusive, of this act does not:

12-12 1. Toll for the real party in interest any period of time or limitation

12-13 for the filing of an action, petition or appeal.

12-14 2. Defeat any procedural bar that would have existed if the real party

12-15 in interest had filed a petition pursuant to NRS 34.360 to 34.830,

12-16 inclusive.

12-17 Sec. 17. The amendatory provisions of this act apply to applications to

12-18 submit a petition for a writ of habeas corpus on behalf of a real party in

12-19 interest that are filed on or after October 1, 1999.