Arenas (Emilio) v. Dist. Ct. (State) ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
EMILIO EAVALIO ARENAS, No. 69606
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, FILED
IN AND FOR THE COUNTY OF MAR 1 7 2016
CLARK; AND THE HONORABLE
ELISSA F. CADISH, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This is a pro se petition for a writ of mandamus seeking the
dismissal of charges with prejudice or new proceedings before the grand
jury.
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion." Int?
Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008) (footnote omitted); see also NRS 34.160. A writ of
mandamus will issue only "where there is not a plain, speedy and
adequate remedy in the ordinary course of law." NRS 34.170. Generally,
the right to appeal is an adequate remedy in the ordinary course of law
that will preclude writ relief. Pan v. Eighth Judicial Dist. Court, 120 Nev.
222, 224, 88 P.3d 840, 841 (2004).
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Petitioner raises a number of claims alleging Fourth
Amendment violations. We have reviewed the documents submitted in
this matter, and we decline to exercise original jurisdiction in this matter.
See NRS 34.160; NRS 34.170. If convicted, petitioner may raise these
claims in an appeal from a judgment of conviction, and petitioner has not
demonstrated that his claims fit the exceptions we have made for purely
legal issues, sound judicial economy and administration, or a gross
miscarriage of justice, see Salaiscooper v. Eighth Judicial Dist. Court, 117
Nev. 892, 901-02, 34 P.3d 509, 515-16 (2001); Ostman v. Eighth Judicial
Dist. Court, 107 Nev. 563, 565, 816 P.2d 458, 459-60 (1991); State v.
Babayan, 106 Nev. 155, 176, 787 P.2d 805, 820 (1990).
Petitioner also raises several claims challenging the grand
jury proceedings. As to petitioner's claim that he was not served with
notice of intent to seek an indictment, it does not appear from the
documents submitted that petitioner has ever litigated that issue in the
district court. While petitioner mentioned former trial counsels' failure to
raise the issue in his motion to dismiss counsel, the district court did not
consider it in resolving that motion. Because the claim involves a factual
issue, whether petitioner or his counsel were served with notice, we
decline to consider this claim in the first instance. See Round Hill Gen.
Imp. Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981)
(explaining that appellate court is not the appropriate forum in which to
address factual issues critical to a writ of mandamus). As to petitioner's
claim that the State failed to present exculpatory evidence to the grand
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jury, it likewise does not appear that this claim was properly presented to
or ruled upon by the district court. Moreover, the evidence at issue was
not exculpatory as it did not explain away the charges against petitioner.
See Ostman, 107 Nev. at 564-65, 816 P.2d at 459; see also NRS 172.145(2).
Accordingly, we
ORDER the petition DENIED.
Hardesty
J.
Saitta
J.
Pickering
cc: Hon. Elissa F. Cadish, District Judge
Emilio Eavalio Arenas
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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