Thomas (Kenneth) v. State ( 2016 )


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  •                         IN THE SUPREME COURT OF THE STATE OF NEVADA
    KENNETH LARAY THOMAS,                                    No. 68416
    Appellant,
    vs.
    THE STATE OF NEVADA,                                             FILED
    Respondent.
    MAR 1 7 2016
    TRACE K L[NDEMANI
    CLERK)9IF SUPREME COURT
    Br   ____Yfzrf.-
    DEPUTY CLERK
    ORDER OF REVERSAL AND REMAND
    This is a pro se appeal from an order of the district court
    denying a postconviction motion to withdraw a guilty plea or correct an
    illegal sentence. Eighth Judicial District Court, Clark County; Kathleen
    E. Delaney, Judge.
    This court has held that postconviction motions to withdraw
    guilty pleas should be construed as postconviction petitions for a writ of
    habeas corpus. See Harris    (J.   State, 130 Nev., Adv. Op. 47, 
    329 P.3d 619
    ,
    628 (2014). Pursuant to NRS 34.726, a postconviction petition for a writ of
    habeas corpus must be filed within one year of the issuance of the
    remittitur on direct appeal or the filing of the judgment of conviction
    unless the petitioner can demonstrate cause for the delay and undue
    prejudice. See State u. Eighth Judicial Din. Court (Riker), 
    121 Nev. 225
    ,
    231, 
    112 P.3d 1070
    , 1074 (2005) ("Application of the statutory procedural
    default rules to post-conviction habeas petitions is mandatory.").
    Here, the district court denied Thomas' claims as barred by
    the law of the case doctrine. However, it did not refer to the fact that the
    motion was filed over five years after the judgment of conviction, see NRS
    34.726(1), nor did its order contain specific findings of fact and conclusions
    SUPREME COURT
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    of law supporting its decision, see NRS 34.830(1). Thus, it is apparent
    from the record that the district court failed to construe Thomas' motion
    as a postconviction petition for a writ of habeas corpus as required by
    Harris. See 130 Nev., Adv. Op. 
    47, 329 P.3d at 628
    . Consequently, we
    reverse the decision of the district court and remand for the district court
    to construe the motion as a postconviction petition for a writ of habeas
    corpus and to provide Thomas an opportunity to cure any defects with
    respect to the procedural requirements of NRS Chapter 34 within a
    reasonable time period as set by the district court. Accordingly, we
    ORDER the judgment of the district court REVERSED AND
    REMAND this matter to the district court for proceedings consistent with
    this order.
    Hard-qty.   .
    ,   J•
    Saitta
    J.
    cc: Hon. Kathleen E. Delaney, District Judge
    Kenneth Laray Thomas
    Attorney General/Carson City
    Clark County District Attorney
    Eighth District Court Clerk
    SUPREME COURT
    OF
    NEVADA
    2
    (0) 1947A ep.
    

Document Info

Docket Number: 68416

Filed Date: 3/17/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021