LOREANA MARTINEZ AND ANTHONY OCEJA v. THE STATE OF NEVADA (2023)

ORDER DENYING PETITION

This original petition for a writ of mandamus seeks an order directing the district court to grant the petitioners’ motion to strike the State's notice of intent to seek the death penalty. We generally will not exercise our discretion to entertain a mandamus petition if there is another plain, speedy, and adequate remedy at law. See NRS 34.170 (providing that mandamus may issue when there is no “plain, speedy and adequate remedy in the ordinary course of law”); Gathrite v. Eighth Judicial Dist. Court, 135 Nev. 405, 407, 451 P.3d 891, 893 (2019) (providing that it is within the court's discretion whether to entertain a mandamus petition).

Here, petitioners may raise the same issues on direct appeal should they be convicted and sentenced to death. See NRS 177.015(3) (providing that the defendant “may appeal from a final judgment or verdict in a criminal case”); see also NRS 177.055(2) (addressing the scope of automatic appellate review of a death sentence). That remedy is adequate. See generally Walker v. Second Judicial Dist. Court, 136 Nev. 678, 681-83, 476 P.3d 1194, 1197-98 (2020) (discussing adequacy of appellate remedy and observing that “[a] remedy does not fail to be speedy and adequate, because, by pursuing it through the ordinary course of law, more time probably would be consumed than in a mandamus proceeding” (internal quotation marks omitted)); Aesoph v. State, 102 Nev. 316, 319, 721 P.2d 379, 381 (1986) (holding that “death qualification” of a jury does not violate a defendant's right to a fair trial or right to an impartial jury); McKenna v. State, 101 Nev. 338, 344, 705 P.2d 614, 618 (1985) (observing that this court is “not required to presume that a death-qualified jury is biased in favor of the prosecution” and explaining that, instead, a defendant must “prove the non-neutrality of the jury which convicted and sentenced him”), abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 776-77, 263 P.3d 235, 254 (2011). Accordingly, we

ORDER the petition DENIED.¹

Stiglich, C.J.

Cadish, J.

Pickering, J.

Lee, J.

Parraguirre, J.

Bell, J.

FOOTNOTES

1.   The Honorable Douglas W. Herndon, Justice, voluntarily recused himself from participation in the decision of this matter.