JAMES DOUGLAS HILL, APPELLANT, v. WARDEN, NEVADA STATE PRISON, RESPONDENT.
No. 12061
January 3, 1980
604 P.2d 807
It is so ORDERED.
MOWBRAY, C. J., and THOMPSON, GUNDERSON, MANOUKIAN, and BATJER, JJ.
Norman Y. Herring, State Public Defender, and J. Gregоry Damm, Deputy Public Defender, Carson City, for Appellant.
Richard H. Bryan, Attorney General, and Richard E. Thornley, Deputy Attorney General, Carson City, for Respondent.
By the Court, MANOUKIAN, J.:
Appellant, a prisoner at the Nevada State Prison in Carson City, filed a petition for a writ of hаbeas corpus in the First Judicial District Court. On June 19, 1979, a hearing was held at which the trial court orally denied the petition. Three days later, on June 22, 1979, appellant filed a notice of appeal. On June 26, 1979, a written order denying the petition was filed in the district сourt. Respondent moves to dismiss the appeal, arguing that the notice of appeal was premature, and therеfore a nullity.
This habeas corpus case is governed by former
This court has said that a habeas corpus proceeding is in the nature of a civil action. Dean v. Kimbrough, 88 Nev. 102, 492 P.2d 988 (1972); In re Smith, 35 Nev. 30, 126 P. 679 (1912). In a civil cаse, the notice of appeal must be filed after written notice of entry of the judgment.
The United States Supreme Court has said that the “civil” label for habeas corpus is “gross and inexact.” Harris v. Nelson, 394 U.S. 286, 293-94 (1969). The Supreme Court has also held that although habeas corpus is technically civil in nature, “it is not automatically subject to all the rules governing ordinary civil actions.” Schlanger v. Seamans, 401 U.S. 487, 490 n.4 (1970).
It is apparent that habeas corpus is a proceeding which should be characterized as neither civil nor criminal for all purposes. It is a special statutory remedy which is essentially unique. This conclusion is supported by Nevadа statutes dealing with writs. While our legislature has specifically provided for the application of the Nevada Rules of Civil Procedure in cases involving writs of certiorari and mandamus,3 there is no similar provision for writs of habeas corpus.4 In addition,
In this case it is necessary for us to decide the narrow issue of the effect of a premature notice of аppeal in a post-conviction habeas corpus case.
Karstetter v. Cardwell, 399 F. Supp. 1298 (D.Ariz. 1975), involved an untimely notice of appeal. In dеciding whether to apply a criminal or a civil rule regarding excusable neglect for the late filing of a notice of appeal, the court noted that in the ordinary civil case, the “stakes” are generally property, while in a habeаs case a prisoner‘s liberty is at stake. The court granted relief to the petitioner, holding that the rule of criminal cases should apply “in spite of the technically ‘civil’ nature of this case.” Id. at 1300. See also, Stokes v. Peyton‘s Inc., 508 F.2d 1287 (5th Cir. 1975).
Appellant is serving a ten year sentence in the Nevada State Prison. He has challenged the legality of his imprisonment. His notice of appeal was filed after the district court orally denied his petition, but before the written order was filed. The state
Respondent‘s motion to dismiss is denied.
MOWBRAY, C. J., and THOMPSON and BATJER, JJ., concur.
GUNDERSON, J., concurring:
Although I concur in the result, I respectfully submit the majority opinion omits to take into account that the procedure followed by appellant has heretofore been rеcognized as valid.
In the past, this court has consistently deemed oral orders denying habeas petitions to be final and appealable. No written order has been required for finality. No written notice of entry of judgment has been required, in order to start appeal time running. This court has dismissed numerous habeas appeals, for not filing notice of appeal within fifteen days after oral denial.
It therefore seems incorrect to say, as set forth above: “In this case it is necessary for us to decide the narrow issue of the effect of a premature notice of appeal in a post-conviction hаbeas corpus case.” Under our practice, notice of appeal was not “premature.” If indeed such nоtice was “premature,” we will now have our work cut out for us, going back to find and to reinstate all the appeals herеtofore dismissed for failure to appeal from oral orders of denial.