Legrand v. Dist. Ct. (Dearion (Wayne)) ( 2015 )

 concluding that Dearion's postconviction petition did not challenge his
conviction or sentence but contested the constitutionality of the parole
board's interpretation and application NRS 193.165. As such, the district
court reasoned, Dearion's "complaint is aimed at more than his guilt or
innocence, but is intended to challenge the very existence of the statute."
Therefore, according to the district court, the petition could be filed in the
court for the county in which Dearion is incarcerated. See MRS 34.738(1).
Petitioner argues that because Dearion's postconviction
petition challenges the validity of his sentence and therefore must be filed
in the jurisdiction where his conviction occurred, the district court is
obligated to transfer the petition to the clerk of the Eighth Judicial
District Court under NRS 34.738(2)(b). We agree. In his postconviction
petition, Dearion argues that MRS 193.165, as applied to his sentence,
created a separate offense requiring a parole board hearing for release and
therefore violated the Fifth Amendment prohibition against double
jeopardy. That is a challenge to the validity of his sentence, despite
Dearion's assertions in his pleadings below that it is not. See generally In
re Samford, 249 S.W.3d 761, 762 (Tex. Ct. App. 2008) (observing that
pleading is defined by its substance). Because NRS 34.738(2)(b) compels
the district court to transfer Dearion's postconviction petition to the
Eighth Judicial District Court, a writ of mandamus is warranted. See
NRS 34.160 (providing that mandamus is available to compel the
performance of an act which the law requires as a duty resulting from an
office, trust, or station); Round Hill Gen. Imp. Dist. v. Newman, 97 Nev.
1 Thedistrict court filed an amended order denying the motion for
reconsideration in this court on November 19, 2015.
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601, 603, 637 P.2d 534, 536 (1981) ("A writ of mandamus will issue when
the respondent has a clear, present legal duty to act."). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to transfer Dearion's postconviction petition for a writ of
habeas corpus to the clerk of the Eighth Judicial District Court pursuant
to NRS 34.738(1), (2)(b).
aitta
Pioem1:1,
ibbons Pickering
cc: Hon. Jim C. Shirley, District Judge
Attorney General/Carson City
Attorney General/Reno
Wayne Cox Dearion
Pershing County Clerk
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