Opinion
No. 79172-COA
10-16-2019
RICHARD FREDERICK POWELL, III, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE ERIC JOHNSON, DISTRICT JUDGE, Respondents, and RENEE BAKER, WARDEN; AND THE STATE OF NEVADA, Real Parties in Interest.
ORDER DENYING PETITION
In this original petition for a writ of mandamus or prohibition and the two supplements to the petition, Richard Frederick Powell, III, asserts that although he filed two motions with affidavits under NRS 1.235 seeking the disqualification of respondent Judge Eric Johnson, Judge Johnson continues to rule on matters in his cases in violation of NRS 1.235(5). Powell asks this court to issue an order prohibiting Judge Johnson from taking any action in district court case numbers A-19-789222-W and C-306648-1. He also asks this court to (1) direct the district court to strike the orders entered on April 24, 2019, and June 11, 2019; (2) appoint counsel to represent him; (3) review the merits of the claims raised in his postconviction petition for a writ of habeas corpus; and (4) sanction the Clark County District Attorney and prohibit specific individuals in that office from appearing in any future proceedings involving Powell.
A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion, Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of prohibition may issue to arrest the proceedings of a district court exercising its judicial functions, when such proceedings are in excess of the jurisdiction of the district court. NRS 34.320. Neither writ will issue if the petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170; NRS 34.330. Petitions for extraordinary writs are addressed to the sound discretion of the court, see State ex rel. Dep't of Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983), and the "[p]etitioner[ ] carr[ies] the burden of demonstrating that extraordinary relief is warranted," Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).
The record before this court indicates that Powell filed a postconviction petition for a writ of habeas corpus that was filed in district court case number A-19-789222-W. Judge Johnson initially entered a summary order denying the petition on April 24, 2019. On May 9, 2019, Judge Johnson went on record noting that he signed the April 24, 2019, order in error, but that upon review of Powell's petition and the State's response, he determined the petition should be denied and he adopted the order denying the petition that was filed on April 24, 2019. On May 9, 2019, Judge Johnson also vacated the May 15, 2019, hearing that had previously been scheduled for the petition.
In this matter, Powell cites to the record on appeal that has been filed in the appeal he has pending in Docket No. 78905. When deciding this matter, we have considered the record on appeal filed in that case.
On May 29, 2019, Powell filed his first motion and affidavit to disqualify Judge Johnson, pursuant to NRS 1.235, in district court case number A-19-789222-W. Powell sought the disqualification of Judge Johnson based on the events that preceded the denial of his petition and asked to have his postconviction petition for a writ of habeas corpus reinstated for review by another judge. On June 11, 2019, Judge Johnson filed a "Findings of Fact, Conclusions of Law and Order" that adopted the April 24, 2019, summary order denying Powell's postconviction petition and provided specific findings upon which the denial was based. Judge Johnson filed an answer to the motion to disqualify on June 13, 2019.
In his answer, Judge Johnson stated he did not receive the motion to disqualify until June 7, 2019.
Powell filed a second motion and affidavit to disqualify Judge Johnson, pursuant to NRS 1.235, in district court case number A-19-789222-W on June 24, 2019. In this motion, Powell made the same argument he made in his first motion, responded to Judge Johnson's answer to his first motion, and argued Judge Johnson had violated NRS 1.235(5) by filing the June 11, 2019, order after he had filed his motion for disqualification. Powell again sought the reinstatement of his postconviction petition and review by another judge. The State filed a response to this motion on July 8, 2019. It appears the district court entered a decision and order resolving the motion(s) to disqualify on July 19, 2019.
Although Powell's motion identified district court case number C-15-306648-1 as a related case number, the motion was not filed in that case.
The district court docket entries Powell provided with his second supplemental petition indicate an order resolving his motion(s) was entered on July 19, 2019. However, Powell has not provided this court with a copy of that order and the record on appeal in Docket No. 78905 was filed prior to July 19, 2019. --------
Powell now asserts that Judge Johnson is exceeding his jurisdiction by continuing to issue orders in his cases because under NRS 1.235(5) Judge Johnson was prohibited from taking any further action in his cases once his first motion to disqualify was filed.
NRS 1.235(5) provides for the disqualification of a judge for actual or implied bias or prejudice upon the filing of an affidavit, in which case the judge "shall proceed no further with the matter." However, in order for NRS 1.235(5) to apply the affidavit must be timely filed pursuant to NRS 1.235(1), which means the affidavit must be filed "either twenty days before the date set for a trial or hearing of the case, or three days before the date set for the hearing on any pretrial matter, whichever comes first." Valledares v. Second Judicial Dist. Court, 112 Nev. 79, 84, 910 P.2d 256, 260 (1996).
Judge Johnson was assigned to Powell's cases well within the time required to file an affidavit under NRS 1.235(1). However, Powell did not file his motion and affidavit for disqualification until after Judge Johnson had already resolved his postconviction petition. Therefore, NRS 1.235(5) did not apply and Judge Johnson was not prohibited from taking further action in his cases. Accordingly, we conclude Powell has failed to demonstrate this court's intervention by way of a writ of prohibition is necessary to prevent Judge Johnson from acting in excess of his jurisdiction. See NRS 34.320.
To the extent Powell seeks a writ of mandamus asking this court to order the district court to disqualify Judge Johnson based on a violation of the Revised Nevada Code of Judicial Conduct, we conclude writ relief is not warranted. Powell has a plain, speedy, and adequate remedy because he can seek relief based on these grounds by way of a motion filed in the district court in the first instance. See NRS 34.170; Towbin Dodge, LLC v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 121 Nev. 251, 260-61, 112 P.3d 1063, 1069-70 (2005). And to the extent Powell attempts to challenge the district court's denial of his postconviction petition or the events leading to the denial of his petition, we again conclude extraordinary relief is not warranted because he has a plain, speedy, and adequate remedy at law. See NRS 34.170. Specifically, Powell can raise these claims in his appeal in Docket No. 78905.
Having concluded Powell has failed to demonstrate extraordinary relief is warranted, we
ORDER the petition DENIED.
/s/_________, C.J.
Gibbons /s/_________, J.
Tao /s/_________, J.
Bulla cc: Hon. Eric Johnson, District Judge
Richard Frederick Powell, III
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk