                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                EVAN EUGENE MOORE,                                      No. 68882 FILED
                Appellant,
                vs.
                                                                                      JAN 07 2016
                THE STATE OF NEVADA,
                Respondent.                                                         TRACE K. LINDEMA,
                                                                                 CLE!..CIF SUPREME CC JRT
                                                                                 BY     •
                                                                                       DEPUTY CLERK
                           ORDER VACATING JUDGMENT AND REMANDING

                             This is an appeal from an order dismissing a post-conviction
                petition for a writ of habeas corpus. Second Judicial District Court,
                Washoe County; Scott N. Freeman, Judge.
                             Appellant Evan Moore is currently serving two consecutive
                sentences of 20 years to life for murder with the use of a firearm. After
                attempting a direct appeal, Moore filed a pro-se, post-conviction petition
                for a writ of habeas corpus on June 4, 2010. After the district court
                ordered an answer, respondent, the State of Nevada, filed its answer on
                February 2, 2011. Moore filed his reply on March 25, 2011. After Moore
                filed his reply, the district court took no action.
                             On July 31, 2014, and November 24, 2014, Moore filed
                separate motions to expedite the decision. There are no responses or
                orders in the record pertaining to these motions.
                             On July 24, 2015, the State filed a motion to dismiss Moore's
                habeas corpus petition, solely citing NRCP 41(e)'s rule permitting
                dismissal of a civil action for failure to bring the case to trial after five




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                years had passed. Moore filed an opposition on August 6, 2015. Moore
                also filed a request for appointment of counsel on August 7, 2015. 1
                               On September 9, 2015, the district court issued an order
                granting the State's motion to dismiss the petition. In the order, the
                district court acknowledged that Moore filed his petition and reply,
                including the dates upon which they were filed. The district court also
                acknowledged that it ordered the State to file an answer and that the
                State did so. The only other fact noted in the order is that five years had
                passed without a hearing.
                            There is nothing in the record on appeal that indicates why,
                after Moore filed his reply, the district court failed to rule or set a hearing
                date.
                            The issue before this court is whether the district court
                correctly dismissed the petition for failure to prosecute. We conclude that
                the district court erred in dismissing the petition because, pursuant to our
                prior rulings on using the NRCP for procedural shortcuts in post-
                conviction habeas corpus cases, dismissal under NRCP 41(e) is not
                appropriate.
                Error in dismissing a post-conviction petition under NRCP 41(e)
                            "The Nevada Rules of Civil Procedure, to the extent that they
                are not inconsistent with NRS 34.360 to 34.830, inclusive, apply to
                proceedings pursuant to NRS 34.720 to 34.830, inclusive." NRS 34.780(1).
                Under NRCP 41(e), if an action is not brought to trial within five years,


                     'In addition to vacating the order granting the State's motion to
                dismiss, we direct the district court to consider Moore's motion to appoint
                counsel pursuant to NRS 34.750 and use its discretion to decide whether
                appointment of counsel is appropriate in this case.

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                 the court must dismiss it, unless the parties have stipulated otherwise.
                 We conclude that because MRS Chapter 34 does not provide for the
                 dismissal of a post-conviction petition for a writ of habeas corpus due to
                 the failure of the petitioner to take further action after the filing of the
                 petition, dismissal under NRCP 41(e) is not permitted in a post-conviction
                 proceeding.
                               Even when there is no explicit conflict in NRS Chapter 34, we
                 have held that certain provisions of the NRCP simply do not apply to post-
                 conviction appeals.   See, e.g., Beets v. State, 110 Nev. 339, 341, 871 P.2d
                 357, 358 (1994) (stating that despite no rule to the contrary, a petitioner
                 cannot move for summary judgment in the context of post-conviction
                 relief); see also Means v. State, 120 Nev. 1001, 1019, 103 P.3d 25, 37 (2004)
                 ("If the rules of civil procedure governing summary judgment are
                 inappropriate for post-conviction cases, then permitting entry of default
                 pursuant to NRCP 55 is even more inappropriate."). "[H]abeas corpus
                 proceedings are unique—neither civil nor criminal for all purposes."
                 Means, 120 Nev. at 1019, 103 P.3d at 37.
                               As in Means, where we held that a petitioner could not use
                 default under NRCP 55, here it would be similarly inappropriate to allow
                 the State to use NRCP 41(e) as a method to avoid a determination on the
                 merits. Default in Means would have meant automatically ruling against
                 the State for a procedural violation. Here, dismissal would mean
                 automatically ruling against Moore for a procedural violation, one he did
                 not commit. Even if there was any delay attributable to Moore, our
                 precedent prohibits dismissal under NRCP 41(e).




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                                Because NRCP 41(e) cannot apply to post-conviction
                proceedings, we
                                ORDER the judgment of the district court VACATED AND
                REMAND this matter to the district court for proceedings consistent with
                this order. 2




                                          Parraguirre


                                                                                   , J.
                Hardesty


                                                                                       J.
                                                            Saitta



                Gibbons
                                                               Pitleu
                                                                        7          ,   J.




                cc: Hon. Scott N. Freeman, District Judge
                     Evan Eugene Moore
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Washoe District Court Clerk




                       2 Becausewe vacate the district court's order granting the State's
                motion to dismiss, we deny Moore's October 27, 2015, motion to file proper
                person documents as moot.

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