Hoffman (Craig) v. Dist. Ct. (State)

 Hoffman argues that the decision to close the proceedings to a
supplemental petition is arbitrary and capricious. Hoffman argues that
the district court should be estopped from enforcing a filing-deadline
because such a deadline has never been enforced in the past and Hoffman
argues that there was no notice that the State would seek to close the
proceedings Hoffman suggests that a more appropriate remedy for post-
conviction counsel's failure to file a timely supplement may have been to
remove counsel from the case and appoint new counsel.
"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." See
Int'l Game Tech., Inc. u. Second Judicial Dist. Court, 124 Nev. 193, 197,
179 P.3d 556, 558 (2008); see also NRS 34.160. A writ of prohibition may
issue when a district court acts without or in excess of its jurisdiction. See
NRS 34.320.
Based upon our review of the documents before this court, we
deny Hoffman's petition for a writ of prohibition, but grant Hoffman's
petition for a writ of mandamus. While we reject Hoffman's equitable
estoppel and notice arguments and disagree with Hoffman regarding a
filing-deadline for a supplemental petition, see NRS 34.750(3) (providing
for 30 days from the date of appointment to file a supplemental petition),
we agree that the remedy chosen by the district court was unduly harsh to
Hoffman and was an arbitrary and capricious exercise of discretion. The
failure to file a timely supplemental petition was due to the dereliction of
post-conviction counsel, Ms. Mary Lou Wilson, to meet the deadline and
the remedy should have been tailored to that dereliction—chiefly, the
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removal of Ms. Wilson from the case and the appointment of new post-
conviction counsel) Accordingly, we
ORDER the petition GRANTED, in part, AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS
instructing the district court to rescind its prior order closing the post-
conviction proceedings, remove Ms. Wilson as counsel in the post-
conviction proceedings, and appoint new counsel to assist Hoffman in the
proceedings. 2
J.
--C24)te‘s"S
Parraguirre
tr
Douglas
cc: Hon. Jerome M. Polaha, District Judge
Mary Lou Wilson
Craig Allen Hoffman
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
'The district court has already determined that the appointment of
post-conviction counsel was warranted in this case. See NRS 34.750(I).
2Ms. Wilson is cautioned that such future dereliction may result in
other sanctions considered necessary by the district court, including
referral to the State Bar of Nevada.
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