Madrigal (Norberto) v. Dist. Ct. (State) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
NORBERTO MADRIGAL, No. 84010
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
OD• 11 .21T12
CLARK; AND THE HONORABLE
ELF:Ar 7. A. 13PCMIN
CRYSTAL ELLER, DISTRICT JUDGE, c r. c s PREMF COUR
Respondents, DEP (CLERi:
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This original petition seeks a writ of mandamus directing the
district court to strike the State's untimely return and grant petitioner's
pretrial petition for a writ of habeas corpus. On July 6, 2021, petitioner
filed a pretrial habeas petition challenging his indictment for multiple drug-
related offenses. A stipulated briefing schedule allowed the State until
September 20, 2021, to file a return. When no return was filed, petitioner
filed a motion for an order granting his pretrial habeas petition on October
28, 2021. The State filed a return on November 3, 2021, and a subsequent
supplement. The State acknowledged missing the filing date, indicating
that it was due to inadvertence in not putting the matter on the prosecutor's
calendar. The parties argued their positions at a hearing, and the district
court denied the motion, finding excusable neglect and no prejudice
resulting from the late filing.
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Traditionally, a writ of mandamus is available to compel the
performance of an act which the law requires as a duty resulting from an
office or to control a manifest abuse or arbitrary or capricious exercise of
discretion. NRS 34.160; Round Hill Gen. Improvement Dist. v. Newrnan, 97
Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A manifest abuse of discretion
occurs when there is a clearly erroneous interpretation or application of the
law, and "[a]n arbitrary or capricious exercise of discretion is one founded
on prejudice or preference rather than reason, or contrary to the evidence
or established rules of law." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (internal
quotation marks and citations omitted). "[T]raditional mandamus relief
does not lie where a discretionary lower court decision results from a mere
error in judgment." Walker v. Second Judicial Dist. Court, 136 Nev. 678,
680, 476 P.3d 1194, 1197 (2020) (internal quotation marks omitted). Even
when the requirements of a traditional writ of mandamus are not met, this
court may consider advisory mandamus relief "[w]here the circumstances
establish urgency or strong necessity, or an important issue of law requires
clarification and public policy is served by this court's exercise of its original
jurisdiction." Schuster v. Eighth Judi,cial Dist. Court, 123 Nev. 187, 190,
160 P.3d 873, 875 (2007). It is solely within this court's discretion to issue
a writ of mandamus. Gathrite v. Eighth Judicial Dist. Court, 135 Nev. 405,
407, 451 P.3d 891, 893 (2019).
Having considered the pleadings and record, we conclude that
extraordinary relief is not warranted in this case. Petitioner incorrectly
relies on EDCR 2_25, a rule governing procedures in civil cases. And
petitioner has not demonstrated that striking a late return or granting a
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default judgment on a pretrial habeas petition is required by any statute or
court rule such that the district court manifestly abused or arbitrarily or
capriciously exercised its discretion in denying petitioner's motion. The
provisions in NRS Chapter 34 relating to pretrial habeas petitions do not
specify a time period for filing a return nor do they specify a consequence
for filing a late return. Nevada Rules of Criminal Practice 9(3), however,
provides a 10-day period for filing a return to a pretrial habeas petition but
does not specify any consequence for the failure to file a timely return.'
Nevada Rules of Criminal Practice 11(1) provides the district court
discretion to extend or shorten a specified time-period. And Nevada Rules
of Criminal Practice 8(4) does not mandate, but instead provides the district
court discretion to treat an opposing party's failure to file an answer as an
admission. Relying on a Colorado case for the proposition that a "court
'should not blindly and arbitrarily release a prisoner, not entitled to release,
because of a late return and answer or even because of total lack of a return
or answer,' this court has observed "that default judgments in habeas
corpus proceedings are not available." Warden v. O'Brian, 93 Nev. 211, 212,
562 P.2d 484, 485 (1977) (quoting Marshall v. Geer, 344 P.2d 440, 442 (Colo.
1959)). Aside from civil cases, petitioner has not provided relevant
authority supporting his position that the district court was required to
strike the late return or grant the pretrial habeas petition because of the
late filing. Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is
'A provision relating to a habeas corpus petition filed pursuant to
NRS 34.360 specifies a 45-day period, or a longer period as fixed by the
court, to file a return and answer to the petition. NRS 34.430(1). No
consequence is specified for the failure to file a timely return.
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[petitioner's] responsibility to present relevant authority and cogent
argument; issues not so presented need not be addressed by this court.").
For these reasons, we
ORDER the petition DENIED.2
, C.J.
Parraguirre
, J. Sr.J.
Herndon
cc: Hon. Crystal Eller, District Judge
Pitaro & Fumo, Chtd.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2 The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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