Nevada post-conviction petition
When your direct appeal is over and errors are still unaddressed, a post-conviction habeas corpus petition (a petition challenging the legality of custody) under NRS 34.726 may be the remedy. It is the last Nevada state court option before federal court, and the deadlines are strict.
16 Google reviews
Michael Mee is one of the best lawyers in town. I would highly recommend him. He was very attentive to my case from day one and we won.
— Elias ManolopoulosWhat a post-conviction petition is, and what it is not
Many people confuse a post-conviction petition with an appeal. They are completely separate proceedings.
"Habeas corpus" is Latin for "you shall have the body." A writ of habeas corpus is a court order requiring a hearing to establish whether there is a constitutional basis for confining someone. If the court grants the petition, it holds a hearing to determine whether your confinement is lawful. A successful result means you are freed from custody on that conviction.
Direct appeal
Challenges the trial record
You argue the judge made legal errors, the jury instructions were wrong, or the evidence was insufficient. Everything comes from the transcript and record of the trial itself. Filed within thirty days of sentencing.
Post-conviction petition
Challenges what the record cannot show
You raise claims that couldn't appear on the trial transcript: your lawyer's failures, evidence the prosecution hid, and facts discovered after trial. Filed in district court after the direct appeal concludes.
The key distinction: Ineffective assistance of counsel, the most common post-conviction ground, almost never appears on the trial record. The jury never hears about it, the judge never rules on it, and the transcript doesn't reflect it. That is precisely why it must come through a habeas petition rather than a direct appeal.
The one-year deadline: NRS 34.726
Miss this and the petition is almost certainly dead on arrival.
Hard deadline
1 year
From entry of the judgment of conviction or, if you appealed, from the appellate court's remittitur (NRS 34.726). With no appeal, the clock starts at entry of judgment.
Good cause exception
A late petition can go forward only if you show good cause: the delay was not your fault, and dismissing the petition as untimely would unduly prejudice you (NRS 34.726). Courts apply this narrowly.
Start early. If your appeal has been decided and you think there may be grounds for a habeas petition, the one-year clock is already running. The petition takes time to investigate and prepare properly.
The procedural bar: what you cannot relitigate
A post-conviction petition is not a second appeal. Nevada courts will not hear claims that were already raised and decided on direct appeal, or claims that you could have raised on appeal but chose not to. This is called the procedural bar.
The bar serves a real purpose: finality. Courts need to be able to conclude cases. But it also creates traps for defendants who were poorly advised about what to raise on appeal, or who didn't know that certain claims required a habeas petition rather than an appeal.
Barred
Arguments about trial court errors that were raised, or could have been raised, in the direct appeal.
Permitted
Claims of ineffective assistance of counsel (almost always outside the trial record). Evidence the prosecution withheld that was not discoverable at trial. Illegal sentences.
Common grounds for post-conviction relief
These are the claims that succeed in Nevada habeas proceedings.
Ineffective assistance of counsel
The most common ground. Your lawyer's performance fell below professional norms and that failure changed the outcome. Strickland v. Washington sets the test: deficient performance plus prejudice. Both prongs are required.
New evidence: where it belongs
A habeas petition must claim the conviction or sentence violated the U.S. or Nevada Constitution or Nevada law (NRS 34.724). New evidence of innocence on its own is raised through a motion for a new trial (NRS 176.515) or a petition to establish factual innocence (NRS 34.960), not habeas. New evidence that supports a constitutional claim, such as evidence the prosecution withheld, still belongs in habeas.
Brady violations
The prosecution withheld evidence that was favorable to you and material to your guilt or punishment. Brady v. Maryland requires the state to disclose exculpatory evidence. If the state hid it and it was material, the conviction may be vulnerable.
Illegal sentence
The court imposed a sentence that exceeds the statutory maximum, applied the wrong category of offense, or violated double jeopardy. Illegal sentences can be challenged even outside normal deadlines in some circumstances.
Constitutional violations not raised on appeal
Certain constitutional violations, particularly those tied to trial counsel's failure to raise them, can be brought in a post-conviction petition. The procedural bar prevents relitigating issues that were raised on direct appeal, but new constitutional claims with cause for the omission may survive.
Ineffective assistance of counsel: the Strickland test explained
This is the most common post-conviction ground. The test has two parts, and you must prove both.
Prong 1: deficient performance
Your attorney's performance fell below the objective standard of a reasonably competent defense attorney. A bad result is not enough. There must be actual failures that no competent lawyer would have made, such as failing to investigate witnesses, not filing a motion to suppress obviously illegal evidence, or missing a key objection without any strategic reason.
Prong 2: prejudice
The deficient performance changed the outcome. There has to be a reasonable probability (not a certainty, but a real possibility) that the result would have been different if counsel had performed competently. If the error didn't affect the verdict, the claim fails even if the performance was terrible.
The court presumes counsel was effective. That presumption has to be overcome with specific facts, not a general feeling that things went wrong. The strongest IAC claims have documentary support: the suppression motion that was never filed, the witness who was never contacted, the lab report counsel never reviewed.
What happens at an evidentiary hearing
An evidentiary hearing is not automatic. The court first reviews the petition and decides whether the claims, if true, would entitle you to relief. If they would, the court sets a hearing where both sides can present evidence and call witnesses.
At the hearing, your trial counsel may be called to testify about their strategic decisions. Experts may testify about what a competent attorney would have done. New witnesses whose testimony supports your claims can take the stand. Evidence that was never presented at trial can be introduced.
Getting to a hearing is itself a milestone. Many petitions are denied on the papers without a hearing because the claims are insufficient on their face or procedurally barred. When a court orders a hearing, it means the claims are credible on their face and legally cognizable (the kind of claim the court can hear). That is a real step toward relief.
What happens if you win, and if you lose
If the petition succeeds
A successful petition means your conviction is vacated and you cannot be held in custody on that conviction. However, winning does not always mean the case is over. The State typically has the right to retry you on the same underlying charges, for example if the basis for relief was ineffective assistance of counsel. The exception is if the basis for relief is something that makes retrial constitutionally barred, such as double jeopardy.
If the petition is denied
A denial in district court can be appealed to the Nevada Court of Appeals or Supreme Court. If the Nevada courts ultimately deny relief, the post-conviction petition, if properly filed and decided on the merits, satisfies the exhaustion requirement for federal habeas corpus under 28 U.S.C. § 2254. That keeps the federal door open for constitutional claims that the Nevada courts had a fair opportunity to address.
How this affects federal court
Federal habeas corpus under 28 U.S.C. Section 2254 is available to state prisoners who are being held in violation of the U.S. Constitution. But federal courts will not hear claims that have not first been fully presented to the state courts. This is called exhaustion.
A properly filed and decided Nevada habeas petition exhausts your state remedies and opens the federal door. A petition that was dismissed on procedural grounds (for being late, for raising barred claims, or for failing to meet pleading requirements) can close the federal door permanently on those claims. Federal courts apply procedural default rules that honor state procedural bars.
The post-conviction petition is a gateway, not a destination. Done right, it preserves every viable constitutional claim and builds the factual record a federal court will later review. Done wrong, or skipped, it can eliminate your ability to seek federal relief altogether.
Post-conviction petition: frequently asked questions
Common questions about Nevada habeas corpus proceedings.
Frequently asked questions
If you think you have grounds for a petition
The one-year clock does not stop while you are thinking it over. Call or text to talk through the facts and find out whether a post-conviction petition is worth pursuing.
More about Nevada criminal appeals
Tap any topic for the full guide.
Page last updated . Written by Michael Mee, Nevada Bar No. 13726.