RUSS HAGH v. THE STATE OF NEVADA (2023)

ORDER DENYING PETITION FOR WRIT OF

This pro se petition appears to seek a postconviction writ of habeas corpus. However, under NRAP 22, “[a]n application for an original writ of habeas corpus should be made to the appropriate district court” in the first instance. This is so that factual and legal issues may be fully developed in the district court, giving this court an adequate record to review. See Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (recognizing that “an appellate court is not an appropriate forum in which to resolve disputed questions of fact”); State v. County of Douglas, 90 Nev. 272, 276-77, 524 P.2d 1271, 1274 (1974) (noting that “this court prefers that such an application [for writ relief] be addressed to the discretion of the appropriate district court” in the first instance), abrogated, on other grounds by Cortez Masto v. Gypsum Res., 129 Nev. 23, 33-34, 294 P.3d 404, 410-11 (2013).

Here, while petitioner properly first sought habeas relief in the district court, it appears that, he failed to timely appeal from the district court's order denying relief. See NRS 34.575(1) (stating that appeals from orders resolving habeas petitions must be filed within 30 days of when the order's notice of entry is served). Writ petitions cannot serve as substitutes for untimely appeals. Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 224-25, 88 P.3d 840, 841 (2004) (explaining that “writ relief is not available to correct an untimely notice of appeal”).

Petitioner bears the burden of showing that extraordinary relief is warranted. See Pan, 120 Nev. at 228, 88 P.3d at 844. For the reasons stated above, we conclude that petitioner has failed to demonstrate that our intervention by extraordinary writ is warranted. Therefore, we decline to exercise our original jurisdiction in this matter, see NRAP 21(b), and we

ORDER the petition DENIED.¹

Stiglich, C.J.

Cadish, J.

Herndon, J.

FOOTNOTES

1.   As the filing fee was waived when the petition was filed, we deny as moot petitioner's motion for leave to proceed in forma pauperis. His motion for appointment of counsel is likewise denied as moot, given the disposition of this petition.