One Advance Opinion for 5-30-24

1 month 3 weeks ago #250 by Joseph Allan Tommasino
Harris (Barry) v. Warden,

140 Nev. Adv. Op. No. 35

May 30, 2024

 Appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Christy L. Craig, Judge.

Reversed and remanded.


By the Court, HERNDON, J.:


“In this case, the district court determined that an evidentiary hearing was warranted on appellant's postconviction petition for a writ of habeas corpus. Due to a communication mishap, appellant was not transferred from prison to attend the evidentiary hearing. The district court proceeded with the hearing in appellant's absence and without a waiver from appellant of his statutory right to be present.”

Brief Answer:

“In this opinion, we clarify that counsel may not waive a petitioner's right to be present at an evidentiary hearing on a postconviction habeas petition where the record does not indicate that the petitioner personally waived the right to be present. 

Because the record does not support a valid waiver of the statutory right to be present at the evidentiary hearing, we conclude that the district court violated appellant's statutory right to be present at the hearing.

And because we cannot say that this error was harmless given the circumstances presented, we reverse the district court's order and remand for a new evidentiary hearing.”
Joe T.

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