O'Keefe (Brian) v. State ( 2014 )

 Judicial District Court, Clark County; Michael Villani, Judge (Docket No.
65217).
Docket No. 65040
In his December 6, 2013, petition, appellant challenged his
criminal conviction by claiming that there was insufficient evidence to
support his conviction for burglary, that the district court judge that
sentenced him had a conflict of interest, and that he suffered from
ineffective assistance of counsel. Appellant asserted he was entitled to
mandamus relief or, in the alternative, relief through a writ of coram
nobis.
First, appellant improperly challenged the validity of a
judgment of conviction through a petition for a writ of mandamus. See
NRS 34.160; NRS 34.724(2) (stating that a post-conviction petition for a
writ of habeas corpus is the proper vehicle with which to challenge a
judgment of conviction); Round Hill Gen. Improvement Dist. v. Newman,
97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (discussing the scope of
mandamus). In addition, appellant failed to demonstrate that he did not
have an adequate remedy with which to challenge his conviction. See NRS
34.170. Therefore, the district court did not err in denying the petition.
Second, appellant failed to demonstrate that he was entitled to
relief on his petition for a writ of coram nobis. Appellant's claims were not
properly raised in a petition for a writ of coram nob is because they were
claims arising from alleged factual errors that are on the record, the
claims could have been raised earlier, or they involved legal and not
factual errors. See Trujillo v. State, 129 Nev. , 310 P.3d 594, 601-
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02 (2013). Appellant has previously litigated a post-conviction petition for
a writ of habeas corpus, O'Keefe v. State, Docket Nos. 48673 and 49329
(Order of Affirmance, March 24, 2008), and appellant failed to
demonstrate that he could not have raised his current claims in that
petition. See Trujillo, 129 Nev. at , 310 P.3d at 601-02 (discussing that
it is the petitioner's burden to demonstrate that he could not have
reasonably raised his claims at an earlier time). Therefore, the district
court did not err in denying the petition.
Docket No. 65217
In his January 27, 2014 motion, appellant claimed that the
trial court was without jurisdiction because appellant had sought relief in
federal court and a decision regarding his• federal habeas petition was
pending before the Ninth Circuit Court of Appeals during his state court
trial. This claim fell outside the narrow scope of claims permissible in a
motion to modify sentence. See Edwards v. State, 112 Nev. 704, 708, 918
P.2d 321, 324 (1996). Appellant also failed to demonstrate that his
sentence was facially illegal or that the district court lacked jurisdiction
due to the federal court proceedings. See id. Appellant did not
demonstrate that the federal court proceedings divested Nevada state
courts of jurisdiction over this case. Moreover, appellant failed to
demonstrate that the federal court had stayed the proceedings in state
court while it considered appellant's petition. See 28 U.S.C. § 2251(a)(1).
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Therefore, we conclude that the district court did not err in denying
appellant's motion. Accordingly, we
ORDER the judgments of the district court AFFIRMED. 2
Pickering
Saitta
cc: Hon. Stefany Miley, District Judge
Hon. Michael Villani, District Judge
Brian Kerry O'Keefe
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We have reviewed all documents that appellant has submitted in
proper person to the clerk of this court in these matters, and we conclude
that no relief based upon those submissions is warranted. To the extent
that appellant has attempted to present claims or facts in those
submissions which were not previously• presented in the proceedings
below, we have declined to consider them in the first instance.
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