Duarte v. The Eighth Judicial Dist. Court of the State

• Docket Number: 86449
• Decision Date: 27 December 2023
• Parties: PEDRO RAFAEL DUARTE, Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE RONALD J. ISRAEL, DISTRICT JUDGE, Respondents, and STEVEN B. WOLFSON, Real Party in Interest.
• Court: Nevada Supreme Court

1

PEDRO RAFAEL DUARTE, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE RONALD J. ISRAEL, DISTRICT JUDGE, Respondents,

and STEVEN B. WOLFSON, Real Party in Interest.

No. 86449

Supreme Court of Nevada

December 27, 2023

UNPUBLISHED OPINION

ORDER DENYING PETITION

This original petition for a writ of mandamus challenges a district court's order denying a postconviction motion to strike two counts from the State's second amended criminal information. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.

In 2003, petitioner Pedro Duarte was convicted of seven felony crimes, including two counts of attempted murder without the use of a deadly weapon. In 2021, the Ninth Circuit Court of Appeals reversed the convictions for attempted murder on the grounds that Duarte received ineffective assistance of trial counsel and remanded the case for a resentencing or retrial.^[1] Duarte v. Williams, No. 19-17207, 2021 WL 4130075, at *3 (9th Cir. Sept. 10, 2021). The State did not retry Duarte. and he was resentenced on the remaining five felony convictions. Following

2

resentencing, Duarte moved the district court to strike the attempted murder counts from the State's second amended information, or alternatively order the State to issue a third amended information omitting the attempted murder counts, so that he could file suit under NRS 41.900 for compensation for a wrongful conviction. The district court denied Duarte's motion, and he filed the instant petition.

A writ of mandamus is an extraordinary remedy 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 an arbitrary or capricious exercise of discretion." Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008). A writ of mandamus is generally inappropriate if the petitioner has "a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170. This court has the discretion to determine whether a writ petition will be considered, Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991), and the petitioner bears the burden of demonstrating that extraordinary intervention is warranted, Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004). Although Duarte has shown that he does not...