Opinion
No. 72217
10-12-2017
RICHARD LEE MILBOURN, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF REVERSAL AND REMAND
Richard Lee Milbourn appeals from a district court order denying his petition for a writ of habeas corpus filed on May 6, 2016, and supplemental pleadings filed on May 16, 2016; September 26, 2016; October 27, 2016; October 31, 2016; November 10, 2016; November 17, 2016; November 22, 2016; and November 23, 2016. Second Judicial District Court, Washoe County; Connie J. Steinheimer, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3). --------
The district court clerk construed Milbourn's petition as a request for postconviction relief and filed it in district court case number C85-478. The district court ordered the Washoe County District Attorney's Office to respond and ultimately denied the petition, stating Milbourn should file his petition in the Eighth Judicial District Court. We conclude these actions were in error.
Milbourn's initial pleading indicated he was filing a petition for writ of habeas corpus questioning under what authority of law he was being held, see NRS 34.360 ("Every person unlawfully committed, detained, confined or restrained of his or her liberty, under any pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such imprisonment or restraint."), and not seeking postconviction relief. As such, there can be no justification for filing Milbourn's petition in his 1985 criminal case. Accordingly, we direct the district court clerk to file Milbourn's petition and related documents as its own case.
The district court's conclusion that it could not grant relief was incorrect as a matter of law as the Second Judicial District Court had jurisdiction to decide the petition. See NRS 34.390(1). Further, because Milbourn challenged the authority by which the State detains him, the Office of the Attorney General, not the Washoe County District Attorney's Office, was the proper respondent. Compare NRS 228.170(1), with NRS 252.110. Accordingly, we direct the district court to order the response from the Office of the Attorney General as to the authority by which Milbourn is being held. We note the Office of the Attorney General may need to be served with Milbourn's filings when ordering the response. Accordingly, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Connie J. Steinheimer, District Judge
Richard Lee Milbourn
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk