Middleton (David) v. Dist. Ct. (Warden) (Death Penalty) ( 2022 )


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  •                          IN THE SUPREME COURT OF THE STATE OF NEVADA
    DAVID STEPHEN MIDDLETON,                              No. 85637
    Petitioner,
    vs.
    THE SECOND JUDICIAL DISTRICT
    COURT OF THE STATE OF NEVADA,
    IN AND FOR THE COUNTY OF
    WASHOE; AND THE HONORABLE
    HUE
    DAVID A. HARDY, DISTRICT JUDGE,                     DEC i 8 2022
    Respondents,                                              A. BF.OWN
    E COUR1
    and
    WILLIAM REUBART, WARDEN; AND                              CLERK
    AARON D. FORD, ATTORNEY
    GENERAL OF NEVADA,
    Real Parties in Interest.
    ORDER DENYING PETITION
    This original petition for a writ of mandamus challenges a
    district court order denying a motion to withdraw exhibits for forensic
    testing.
    A writ of mandamus is available to control the performance of
    an act that the law requires as a duty resulting from an office, trust, or
    station, NRS 34.160, or to control a manifest abuse or arbitrary or
    capricious exercise of discretion, Round Hill Gen. Improvement Dist. u.
    Newman, 
    97 Nev. 601
    , 603-04, 
    637 P.2d 534
    , 536 (1981). The writ will not
    SUPREME COURT
    OF
    NEVADA
    10) I947A Ale*m
    issue if the petitioner has a plain, speedy, and adequate remedy in the
    ordinary course of law. NRS 34.170. Despite a remedy, this court may
    nevertheless consider the writ petition "in the interest of judicial economy
    and in order to control a manifest abuse or capricious exercise of discretion."
    Brown v. Eighth Judicial Dist. Court, 
    133 Nev. 916
    , 919, 
    415 P.3d 7
    , 10
    (2017).   Petitions for extraordinary writs are addressed to the sound
    discretion of this court, see State ex rel. Dep't of Transp. v. 
    Thompson, 99
    Nev. 358, 360, 
    662 P.2d 1338
    , 1339 (1983), and the petitioner must
    demonstrate that relief is warranted, Pan v. Eighth Judicial Dist. Court,
    
    120 Nev. 222
    , 228, 
    88 P.3d 840
    , 844 (2004).
    We have considered the petition and are not satisfied that our
    intervention by way of extraordinary writ is warranted. Middleton filed the
    motion to withdraw exhibits over two years after he filed the notice of
    appeal from the district court's order denying his postconviction habeas
    petition. The motion sought to develop evidence related to a claim in the
    postconviction petition. Therefore, the district court's conclusion that it
    lacked jurisdiction to consider Middleton's motion did not constitute a
    manifest abuse or capricious exercise of its discretion. See Mack-Manley v.
    Manley, 
    122 Nev. 849
    , 855, 
    138 P.3d 525
    , 529 _(2006) (providing that the
    filing of a timely notice of appeal divests the district court of jurisdiction to
    act in the matter). In addition, while he did not make the showing required
    to obtain a limited remand, Middleton had an adequate legal process to seek
    it. See NRAP 12A (providing process to seek remand to the district court
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    when the district court denies motion for lack of jurisdiction but indicates it
    would grant motion or that motion raises substantial issue). Accordingly,
    we
    ORDER the petition DENIED.'
    ofAi?                                                               J.
    Parraguirre                                 Hardesty
    J.                                          J.
    Stiglich                                    Cadish
    J.                                          J.
    Herndon
    cc:     Hon. David A. Hardy, District Judge
    Federal Public Defender/Las Vegas
    Attorney General/Carson City
    Washoe County District Attorney
    Washoe District Court Clerk
    lAs we have affirmed the district court's order denying Middleton's
    postconviction habeas petition, see Middleton v. State, No. 81217 (Dec. 2,
    2022) (Order of Affirmance), we deny his motion to consolidate as moot.
    The Honorable Abbi Silver having retired, this matter was decided by
    a six-justice court.
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Document Info

Docket Number: 85637

Filed Date: 12/8/2022

Precedential Status: Precedential

Modified Date: 12/9/2022