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

• Court: Nevada Supreme Court
• Decided: March 17, 2016
• Docket: 69606
• Status: Unpublished

Opinion

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).

SUPREME COURT OF NEVADA

(0) 1947A ra() 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

SUPREME COURT OF NEVADA 2 (0) 1947A e 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

SUPREME COURT OF NEVADA 3 10) 1947A e