Opinion
No. 57822.
07-13-2011
Michael Ray HUGHES, Appellant, v. The STATE of Nevada, Respondent.
Michael Ray Hughes Attorney General/Carson City Attorney General/Las Vegas Clark County District Attorney
Michael Ray Hughes
Attorney General/Carson City
Attorney General/Las Vegas
Clark County District Attorney
ORDER DISMISSING APPEAL AND REMANDING WITH INSTRUCTIONS
This is a proper person appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus . Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
This appeal has been submitted for decision without oral argument, NRAP 34(f)(3), and we conclude that the record is sufficient for our review and briefing is unwarranted. See Luckett v. Warden, 91 Nev. 681, 682, 541 P.2d 910, 911 (1975).
On August 11, 2010, appellant filed a proper person postconviction petition for a writ of habeas corpus in the district court. On March 3, 2011, the district court entered an order denying the petition, determining that the petition lacked merit. Although appellant filed a motion for reconsideration and motion to restore half of the credits forfeited in the district court, he also filed a timely notice of appeal to this court from the district court's order denying the petition. Thereafter, on May 23, 2011, the district court entered an order granting the motion for reconsideration. The district court determined that the results of the March 3, 2009 prison disciplinary hearing should be vacated.
The district court denied the motion to restore half of the credits forfeited. Such a motion was moot in light of the district court's decision to grant the motion for reconsideration.
The district court indicated that the Nevada Department of Corrections could initiate new prison disciplinary proceedings.
Generally, “[a] timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court.” Robertson v. State, 109 Nev. 1086, 1089, 863 P.2d 1040, 1042 (1993), overruled on other grounds by Krauss v. State, 116 Nev. 307, 998 P.2d 163 (2000). If the district court is inclined to modify a decision from which an appeal has been taken, after jurisdiction has vested in this court, the preferable course of action is for the district court to certify to this court its inclination to modify its decision and to request a remand. See Foster v. Dingwall, 126 Nev.,, 228 P.3d 453, 455–56 (2010) ; Mack–Manley v. Manley, 122 Nev. 849, 855–56, 138 P.3d 525, 530 (2006) ; Huneycutt v. Huneycutt, 94 Nev. 79, 80–81, 575 P.2d 585, 585–86 (1978).
It is apparent from our review of the documents before this court that the district court has reconsidered its decision and is inclined to modify its prior decision denying appellant's petition. We conclude that requiring the district court to certify its inclination to this court under these circumstances would only serve to further delay a final resolution of this matter. Accordingly, we have elected to dispense with the requirement that the district court certify to this court its inclination to modify its prior decision. The district court's decision granting the motion for reconsideration rendered this appeal moot, and consequently, we dismiss this appeal. We note that because the district court was technically without jurisdiction to enter its order on May 23, 2011, the district court should re-enter the order to avoid any unnecessary procedural confusion. In light of the foregoing, we
ORDER this matter DISMISSED AND REMANDED to the district court for proceedings consistent with this order.
We have reviewed all documents that appellant has submitted in proper person to the clerk of this court in this matter, and we conclude that no relief based upon those submissions is warranted. To the extent that appellant has attempted to present claims or facts in those submissions which were not previously presented in the proceedings below, we have declined to consider them in the first instance.