Legrand v. Dist. Ct. (Sutton (Kevin))

concluding that Sutton'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, Sutton'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 Sutton is incarcerated. See NRS 34.738(1). Petitioner argues that Sutton's postconviction petition challenges the validity of his sentence and therefore must be filed in the jurisdiction where his conviction occurred. As such, the district court is obligated under NRS 34.738(2)(b) to transfer the petition to the clerk of the Eighth Judicial District Court. We agree. In his postconviction petition, Sutton argues that NRS 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 Sutton'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 Sutton'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. 601, 603, 637

'The district court filed an amended order denying the motion for reconsideration in this court on November 19, 2015.

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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 Sutton'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).

L./ CUM , J. Saitta

' J. Gibbons Pickering

cc: Hon. Jim C. Shirley, District Judge Attorney General/Carson City Attorney General/Reno Kevin Devon Sutton Pershing County Clerk

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