Opinion
No. 72151
11-14-2017
SCOTT LEROY NICHOLS, Appellant, v. JO GENTRY, WARDEN, Respondent.
ORDER OF AFFIRMANCE
Scott Leroy Nichols appeals from an order of the district court denying a petition for a writ of habeas corpus. Fourth Judicial District Court, Elko County; Nancy L. Porter, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3).
Nichols argues the district court erred in denying his August 23, 2016, petition. In his petition, Nichols claimed he did not challenge his judgment of conviction, but rather challenged the lawfulness of his restraint and incarceration. Nichols asserted his incarceration was improper because the commission that made recommendations regarding the creation of the Nevada Revised Statutes during the 1950s was not lawful.
The record demonstrates Nichols is incarcerated pursuant to his conviction for two counts of trafficking in a controlled substance. Such a conviction was authorized by NRS 453.3385 as it existed when Nichols committed his crimes in 1998. See 1997 Nev. Stat., ch. 256, § 5, at 905. Nichols did not demonstrate his challenge to a statute revision commission had any bearing upon his conviction or his resulting incarceration. Accordingly, Nichols failed to demonstrate he is unlawfully restrained or incarcerated. As Nichols failed to demonstrate that he is unlawfully committed, detained, confined, or restrained, we conclude the district court did not err by denying Nichols' petition. See NRS 34.360; NRS 34.770(2). Accordingly, we
ORDER the judgment of the district court AFFIRMED.
We note the district court relied upon the Nevada Rules of Civil Procedure when it denied the petition. However, the district court has the authority to dismiss the petition without a hearing pursuant to NRS 34.770(2) and the district court should have relied upon the provisions of NRS Chapter 34 when considering this petition. See NRS 34.780(1). Nevertheless, as we conclude the district court properly denied the petition for the reasons explained previously, we affirm. See Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970). --------
/s/_________, C.J.
Silver
/s/_________, J.
Tao
/s/_________, J.
Gibbons cc: Hon. Nancy L. Porter, District Judge
Scott Leroy Nichols
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk