JAMES BURKE v. WARDEN NETHANJAH BREITENBACK DIRECTOR JAMES DZURENDA AND NEVADA DEPARTMENT OF CORRECTIONS (2025)

ORDER OF AFFIRMANCE

James R. Burke appeals from a district court order denying a postconviction petition for a writ of habeas corpus challenging the computation of time served filed on November 19, 2024. Eleventh Judicial District Court, Pershing County; Jim C. Shirley, Judge.

Burke argues the district court erred by denying his petition as moot. Burke does not appear to challenge the resolution of his claim for the application of additional statutory credits to his current sentence but instead argues the court should have granted his petition and entered an order requiring the Nevada Department of Corrections (NDOC) to apply NRS 209.446 to the entirety of his sentence.

In his petition, Burke alleged that because his crimes were committed in 1995, he was entitled to the application of statutory credits pursuant to NRS 209.446 to the sentence he was currently serving “and on any sentence on which he has not yet appeared before the Parole Board.” The Attorney General's Office responded that, upon receipt of Burke's petition, the NDOC corrected the application of credits to the minimum sentence Burke was currently serving in conformity with NRS 209.446.¹

The district court found: (1) the NDOC had “adjusted Burke's time computation in conformity with NRS 209.446, accelerating his eligibility for parole from November 1, 2027, to May 10, 2025”; (2) because the sentences imposed for two remaining counts were pending, Burke's claim regarding those sentences was not ripe for consideration; (3) any future calculations regarding the two remaining counts should be in conformity with NRS 209.446; and (4) because the only relief the district court could have ordered had already occurred, Burke's petition was moot as there was no additional relief the court could grant. The district court's determinations are supported by the record and are not clearly erroneous. See NRS 209.446(1)(a) (providing that a petitioner is entitled to the application of statutory credits pursuant to NRS 209.446 “[f]or the period the offender is actually incarcerated under sentence”); Williams v. State Dep't of Corr., 133 Nev. 594, 601, 402 P.3d 1260, 1266 (2017) (concluding the petitioner was entitled to the application of credits to “any sentence she is currently serving”); Johnson v. Dir., Nev. Dep't of Prisons, 105 Nev. 314, 316, 774 P.2d 1047, 1049 (1989) (providing that “any question as to the method of computing” a sentence is rendered moot when the sentence is expired). Because Burke has been granted all the relief to which he was entitled, we conclude the district court did not err by denying his petition as moot. Accordingly, we

ORDER the judgment of the district court AFFIRMED.²

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   The Attorney General's Office initially stated the correction had been made pursuant to NRS 209.446 5 but later filed an errata stating the correction had been made pursuant to NRS 209.446.

2.   To the extent Burke presents claims or facts in his informal brief that were not previously presented in the proceedings below, we decline to consider them in the first instance on appeal. See State v. Wade, 105 Nev. 206, 209 n.3, 772 P.2d 1291, 1293 n.3 (1989). Insofar as Burke raises arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.