Leavell v. Eighth Judicial Dist. Court

Pickering

This is an original petition for a writ of mandamus challenging the district court's denial of a pretrial petition for a writ of habeas corpus.

Petitioner Ronald Leavell argues that the district court manifestly abused its discretion by denying his pretrial habeas petition and allowing the State to charge him with second-degree murder with the use of a deadly weapon for a death allegedly resulting from driving under the influence of an intoxicating liquor and/or controlled substance. He seeks a writ of mandamus ordering the district court to grant his habeas petition. We elect to entertain his mandamus petition because "judicial economy and sound judicial administration militate in favor of writ review." Scarbo v. Eighth Judicial Dist. Court, 125 Nev. 118, 121, 206 P.3d 975, 977 (2009).

Whether to grant a habeas petition is within the district court's discretion. See Rugamas v. Eighth Judicial Dist. Court, 129 Nev. 424, 436, 305 P.3d 887, 896 (2013). We may issue a writ of mandamus to control a discretionary act if the district court manifestly abused its discretion. Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

Although malice may be inferred from the facts of this case, which would support a charge of second-degree murder, the Legislature has preempted such a charge for cases of non-intentional vehicular homicide. See NRS 484B.657. As we likewise held in Sheriff v. LaMotte, 100 Nev. 270, 272-73, 680 P.2d 333, 334 (1984), and confirmed in Johnston v. State, 101 Nev. 94, 95, 692 P.2d 1307, 1308 (1985), the State may not charge a defendant with second-degree murder for a death resulting from driving under the influence. The district court nonetheless allowed the State to do so here, so it erred in interpreting and applying those holdings, which was a manifest abuse of discretion. State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011). Accordingly, we

ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to vacate its order denying Leavell's habeas petition and enter a new order granting it.

/s/_________, C.J.

Pickering /s/_________, J.
Gibbons /s/_________, J.
Parraguirre /s/_________, J.
Cadish /s/_________, J.
Hardesty /s/_________, J.
Stiglich /s/_________, J.
Silver cc: Hon. Douglas W. Herndon, District Judge

Clark County Public Defender

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk