Legrand v. Dist. Ct. (Sutton (Kevin)) ( 2015 )

 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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