United States District Court, D. Nevada
P. Gordon United States District Judge.
Harris filed a petition for a writ of habeas corpus. ECF No.
5. The respondents move to dismiss it. ECF No. 10. I deny the
motion. Given the procedural complexities that Harris will
need to negotiate to obtain relief, I will appoint counsel
provisionally, conditioned upon Harris establishing his
financial eligibility for representation by counsel.
September 6, 2013, Harris was charged with (1) battery with
intent to commit a crime, (2) battery with use of a deadly
weapon, (3) assault with a deadly weapon, (4) assault with a
deadly weapon, and (5) attempted robbery. Ex. 3 (ECF No.
11-3). The parties negotiated the case quickly. On October
14, 2013, Harris agreed to plead guilty to one count of
assault with a deadly weapon. Ex. 10 (ECF No. 11-10). The
state district court suspended the sentence, placed Harris on
probation, and entered a judgment of conviction on December
17, 2013. Ex. 14 (ECF No. 11-14). Harris did not appeal.
December 16, 2014, Harris filed his first state
post-conviction habeas corpus petition. Ex. 16 (ECF No.
11-16). On February 26, 2015, the state district court held a
hearing on the petition. The following exchange occurred:
THE COURT: A couple things, to begin with, under Nevada
statutes, writs of habeas corpus are filed by people
that are incarcerated. You're confined. You're
detained. You're committed somewhere. You're
restrained in some fashion. And a habeas corpus
relief kind of addresses the reasons for that confinement.
Not, you're out of custody and kind of want somebody to
go back and look at the deal that you entered into and
whether your attorney did what they should have or not.
So I can't really grant this. It's not even in the
form that's required by statute if you wanted to pursue
habeas corpus relief. It looks to me like what
you're really kind of getting at is you want to withdraw
the plea that was entered. So there is, you know, you can try
and file a motion in that regard if you want. But it's
just a motion to withdraw plea. It's not a habeas
corpus petition, okay?
THE DEFENDANT: So it's basically it was in the wrong
THE COURT: Yeah. I mean, there's certain standards under
the law as to when you could withdraw a plea post conviction.
THE DEFENDANT: Right.
THE COURT: So you would need to include that kind of
information in there. But I think factually I understand what
you're trying to get at.
THE DEFENDANT: Right.
THE COURT: So you're really just__and I know it seems
kind of silly, but I gotta do it this way, asking you to do a
different kind of motion.
THE DEFENDANT: Okay.
THE COURT: Title it differently and ...