« US Supreme Court grants cert in 4 cases | Main | Nevada US Attorney fired »

Order of Reversal in Sherman v. State

I'm still working on my scanning and posting PDF ability, so I've typed the text of the Nevada Supreme Court's unpublished Order of Reversal and Remand in the capital case of Sherman v. State, No. 47012. I'm thankful that it was short. The Order was issued on January 9, 2007. I cannot think of any published decisions that are directly on point with the subject of the decision, so I'm surprised that the Court did not publish the order.

Congrats to David Anthony of the Federal Public Defender's Office on the win.

The text of the order is set forth at the jump.

"This is an appeal from a district court order denying a post-conviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Valorie Vega, Judge.

Appellant Donald William Sherman was convicted, pursuant to a jury verdict, of burglary, robbery, and first-degree murder and sentenced to death. This court affirmed the judgment of conviction and sentence on direct appeal. This court also affirmed the district court's denial of Sherman's first post-conviction petition for a writ of habeas corpus. Christopher Oram represented Sherman in that appeal and remained as counsel of record in that matter.

Sherman, represented by the Federal Public Defender, filed a second post-conviction petition for a writ of habeas corpus on December 12, 2005. The district court denied the petition without prejudice, ruling that Mr. Oram was counsel of record and the Federal Public Defender needed to obtain a substitution of counsel and refile the petition. This appeal followed.

We conclude that the district court erred in denying the petition on these grounds. Mr. Oram's representation of Sherman was specific to the previous matter. The instant petition was a new and different matter, and Mr. Oram was not counsel of record for the petition. Further, had a substitution of counsel been necessary, it would have been a technical defect in the petition that did not deprive the district court of jurisdiction to hear the matter after a substitution had been filed. A district court should allow a petitioner to cure a technical defect rather than dismissing or denying the petition.

The States [sic] also argues that we should consider this appeal moot because Sherman has been permitted to refile his petition. We are not persuaded by this argument given the possibility that dismissal of the instant petition could independently give rise to issues of procedural default.

Having reviewed Sherman's contentions and concluded he is entitled to relief, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order."

Footnotes are omitted. The order is signed by Justices Parraguirre, Hardesty, and Saitta

Post a comment

(If you haven't left a comment here before, you may need to be approved by the site owner before your comment will appear. Until then, it won't appear on the entry. Thanks for waiting.)