Mott v. Warden, Nevada State Prison

540 P.2d 1061, 91 Nev. 593, 1975 Nev. LEXIS 720

Opinion

OPINION

Per Curiam:

In 1972, Melburn Delos Mott after pleading guilty to a charge of burglary (a felony under NRS 205.060) and possession of burglary tools (a gross misdemeanor under NRS 205.-080), was sentenced to a term in the Nevada State Prison. Thereafter, in August 1975, he filed an in pro per petition in the district court seeking habeas corpus. The thrust of the petition challenged the constitutional validity of the burglary statute.

The district court neither processed the petition nor ordered a return thereto; and, without hearing or appointment of counsel, summarily dismissed the petition. An in pro per appeal has been perfected by Mott.

Having reviewed the record we, sua sponte, conclude the summary action by the district court constitutes reversible error. A constitutional challenge to the validity of a statute under which a person is incarcerated is a proper subject for habeas corpus. See, for example, Ex Parte Mantell and Raigen, 47 Nev. 95, 216 P. 509 (1923); Ex Parte Medeiros, 57 Nev. 301, 64 P.2d 346 (1937). Cf. Eureka Bank Cases, 35 Nev. 80, 126 P. 655, 129 P. 308 (1912). Accordingly, the district judge should have granted the writ without delay (see NRS 34.390, et seq.; NRS 34.430, et seq.); and, his failure to do so compels us to reverse and remand. The First Judicial District Court, Carson City, is instructed: (1) to issue the writ of habeas corpus forthwith; (2) to order a return thereto; (3) to appoint counsel for appellant; and, (4) pursuant to NRS 34.460, grant an immediate hearing and resolve the allegations set forth in the petition for habeas corpus.

Remittitur shall issue forthwith.