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Post-Conviction Relief

  1. If the appellate court affirms the conviction and judgment, once the rehearing process is terminated, the appellate court issues a mandate or remittitur to the trial court. From that date, the criminal defendant has one year to file a petition for habeas corpus either in state court or in federal court. The law is that a defendant cannot raise legal issues that were raised or could have been raised on direct appeal. Therefore, typically the issue raised is ineffective assistance of counsel, either at trial or on direct appeal. Defendants who plead guilty and are sentenced can allege an involuntary guilty plea for a wide variety of reasons, including the theory that the plea was generated by ineffective assistance of counsel.  Defendants who wish to challenge their plea in habeas proceedings have one year to do so from the date of sentencing, if they did not appeal. Occasionally, a situation will arise where a defendant in habeas corpus can claim either newly discovered evidence or prosecutorial misconduct as a theory of relief, in addition to or in lieu of ineffective assistance of counsel. 
  2. Habeas writs are very rarely granted by the trial court. When they are denied, those defendants have 30 days to appeal the denial of the writ to the appellate court.  See: Broam and Manning v. State (3rd Judicial District Court, State of Nevada (1998); Han v. State, (2nd Judicial District Court,

State of Nevada (1999-2003); Palmer v. State, 118 Nev. Ad. Op. 81, 59 P.3d 1192 (2002); Stroup v. State, 2nd Judicial District Court, State of Nevada (1998-2003);