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

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. SUPREME COURT OF NEVADA 2 (0) 1947A 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 SUPREME COURT OF NEVADA 3 (0) 1947A e