ANTHONY POSEY v. THE STATE OF NEVADA (2024)

ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

This is an original pro se petition for a writ of habeas corpus alleging claims of ineffective assistance of counsel, Brady violations, and actual innocence.

In the underlying case, petitioner pleaded guilty to luring children or mentally ill persons with the use of technology with the intent to engage in sexual conduct, and engaging in soliciting a child for prostitution. Petitioner was sentenced to serve concurrent prison terms totaling 48-120 months in the aggregate. In this petition, petitioner claims that he received ineffective assistance of counsel prior to the entry of his guilty plea, the State violated Brady v. Maryland, 373 U.S. 83 (1963), and he is actually innocent.

A petition for a writ of habeas corpus should be filed in the district court in the first instance so that factual and legal issues are fully developed, 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); see also NRAP 22 (stating that under NRAP 22, the proper procedure is to apply for habeas relief in the district court in the first instance and, if aggrieved, appeal to this court from any order denying such relief).

Having considered the petition and documents submitted by petitioner, we are not convinced that our extraordinary and discretionary intervention is warranted at this time. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (observing that the party seeking writ relief bears the burden of showing that such relief is warranted); Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (recognizing that writ relief is an extraordinary remedy and that this court has sole discretion in determining whether to entertain a writ petition). As petitioner has failed to demonstrate that our intervention by extraordinary writ is warranted, we decline to exercise our original jurisdiction in this matter. See NRAP 21(b). Accordingly, we

ORDER the petition DENIED.

Cadish, C.J.

Stiglich, J.

Herndon, J.