THOMAS RICHARDSON v. WILLIAM GITTERE WARDEN ELY STATE PRISON AARON FORD ATTORNEY GENERAL AND THE STATE OF NEVADA (2024)

ORDER DENYING PETITION

This original petition for a writ of mandamus seeks to compel Chief Judge Jerry A. Wiese to disqualify Judge Michelle Leavitt from presiding over petitioner Thomas Richardson's postconviction petition for a writ of habeas corpus.¹

A writ of mandamus is available to compel the performance of a legally required act or to control an arbitrary or capricious exercise of discretion. NRS 34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Whether to consider a writ petition is wholly within this court's discretion. Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991).

This court has recognized the propriety of extraordinary writ review in assessing questions of judicial disqualification. State ex rel. McMahan v. First Jud. Dist. Ct., 78 Nev. 314, 316, 371 P.2d 831, 833 (1962). But having considered the petition and the supporting documents, we conclude that Richardson has not shown that our extraordinary intervention is warranted. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (observing that the party seeking relief bears the burden of showing such relief is warranted). Judge Leavitt insisted that she could be impartial and harbored no bias against Richardson. Given the weight we afford a judge's assessment of their own impartiality, Sonner v. State, 112 Nev. 1328, 1335, 930 P.2d 707, 712 (1996), Richardson's assertion that Judge Leavitt's professional interest in appearing impartial prevented her from reliably ruling on his postconviction claims of bias cannot overcome that assessment. Richardson therefore did not demonstrate that the chief judge's refusal to disqualify Judge Leavitt was a manifest abuse, or an arbitrary or capricious exercise, of discretion. Redeker v. Eighth Jud. Dist. Ct., 122 Nev. 164, 167, 127 P.3d 520, 522 (2006). Accordingly, we

ORDER the petition DENIED.

Cadish, C.J.

Stiglich, J.

Herndon, J.

Parraguirre, J.

Pickering, J.

Lee, J.

Bell, J.

FOOTNOTES

1.   Richardson also seeks a writ of prohibition. Because Chief Judge Wiese had jurisdiction to consider Richardson's challenge to Judge Leavitt for bias, see NRS 1.235(7)(a), a writ of prohibition cannot issue. See Wolzinger v. Eighth Jud. Dist. Ct., 105 Nev. 160, 168, 773 P.2d 335, 340 (1989) (concluding that the chief judge had jurisdiction to consider bias challenge to district court judge and therefore prohibition could not issue).