KEEFE v. The State of Nevada, Real Party in Interest. (2021)

ORDER DENYING PETITION

In this original, pro se petition for a writ of mandamus, Brian Kerry O'Keefe seeks an order directing the district court to place the underlying petition for factual innocence back on calendar and hear it within a reasonable amount of time.

A writ of mandamus is available to compel the performance of an act which 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. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue, however, if the petitioner has a plain, speedy, and adequate remedy in the ordinary course of law. NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See Poulos v. Eighth Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). “Petitioner[ ] carr[ies] the burden of demonstrating that extraordinary relief is warranted.” Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).

On June 3, 2021, the district court entered an order dismissing O'Keefe’s petition. O'Keefe had a plain, speedy, and adequate remedy: an appeal from the district court's order. Accordingly, we conclude O'Keefe has failed to demonstrate that our intervention by way of extraordinary relief is warranted, and we

ORDER the petition DENIED.¹

FOOTNOTES

1.   We have reviewed all documents O'Keefe has filed in this matter, and we conclude no relief based upon those submissions is warranted.