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

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
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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, 99Nev. 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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