IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL ELLWOOD SZLUHA, No. 78210
Appellant,
vs. PIP •
THE STATE OF NEVADA,
Respondent. NOV 5 2026
BP VN
UPREME COU
ORDER OF AFFIRMANCE BY
DEPUTY CLERK
This is an appeal from a district court order denying a
postconviction petition for a writ of habeas corpus. Eighth Judicial District
Court, Clark County; Joseph T. Bonaventure, Jacqueline M. Bluth, Judges.
On April 10, 2018, appellant Michael Szluha filed a second,
untimely postconviction petition for a writ of habeas corpus. Relying upon
this court's decision in Shue v. State, 133 Nev. 798,
407 P.3d 332 (2017),
Szluha raised a unit-of-prosecution challenge to his multiple convictions for
using a minor in the production of pornography and lewdness with a child
under the age of 14 years, arguing the convictions were illegal because his
offenses only involved one minor victim. The State opposed the petition,
arguing that it was procedurally barred. The district court orally denied
the petition, and Szluha filed a notice of appeal from that decision. On May
30, 2019, the district court entered a written order denying the petition as
procedurally barred. On October 1, 2019, the district court amended its
order by deleting the procedural bar analysis and resolving the petition on
the merits.
The district court erred in several respects in its resolution of
the petition. First, the district court did not have jurisdiction to amend the
May 30 written order because jurisdiction over the proceedings had been
vested in this court by the filing of the notice of appeal. See Buffington v.
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State, 110 Nev. 124, 126,
868 P.2d 643, 644 (1994) (Jurisdiction in an
appeal is vested solely in the supreme court until the remittitur issues to
the district court. Under the relevant statutes, the supreme court has
control and supervision of an appealed matter from the filing of the notice
of appeal until the issuance of the [remittitur]."); NRAP 4(b)(2) ("A notice of
appeal filed after the announcement of a decision, sentence or order—but
before entry of the judgment or order—shall be treated as filed after such
entry and on the day thereof."). And neither the district court nor the
parties followed the procedures required to obtain a limited remand to
amend the May 30 order resolving the petition. See Foster v. Dingwall, 126
Nev. 49, 51-53,
228 P.3d 453, 454-56 (2010) (explaining the procedures for
seeking a remand to modify or amend an order that has already been
appealed to this court); Huneycutt v. Huneycutt, 94 Nev. 79, 80,
575 P.2d
585, 585 (1978) (recognizing district court has no authority to grant a new
trial once a notice of appeal has been filed and discussing procedure for
seeking a remand). However, it is apparent from our review of the
documents that the district court is inclined to amend its prior decision, and
we conclude that requiring the district court and the parties to follow the
procedures in Dingwall and Huneycutt at this point would only serve to
further delay a final resolution of this matter. Thus, we will consider the
amended order as if the proper procedures had been followed.
The district court's amended order seemingly construed the
second habeas petition to be a motion to correct an illegal sentence. This
was error. Because a motion to correct an illegal sentence is a separate
remedy from a postconviction petition for a writ of habeas corpus, see NRS
34.724(2)(a) (providing that a habeas petition is not a substitute for a
motion that is incident to the proceedings); Edwards v. State, 112 Nev. 704,
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707, 918 P.2d 321, 323-24 (1996) (recognizing that a motion to modify or
correct an illegal sentence is incident to the proceedings), it was error to
construe appellant's habeas petition as a motion to correct an illegal
sentence. Appellant's unit-of-prosecution challenge was outside the scope
of a motion to correct an illegal sentence because the claim attacked the
validity of the conviction and involved alleged trial error. See Edwards, 112
Nev. at 708,
918 P.2d at 324 ("A motion to correct an illegal sentence
'presupposes a valid conviction and may not, therefore, be used to challenge
alleged errors in proceedings that occur prior to the imposition of sentence."'
(quoting Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985))).
Likewise, a motion to modify a sentence would be an inappropriate remedy
because Szluha did not allege that there was a material mistake about his
criminal record that worked to his extreme detriment. Edwards, 112 Nev.
at 708,
918 P.2d at 324. "Issues concerning the validity of a conviction or
sentence, except as detailed in [Edwards], must be raised in habeas
proceedings." Id.
The district court further erred to the extent it resolved the
habeas petition on the merits without addressing the clearly applicable
procedural bars. See State v. Eighth Judicial Dist. Court (Riker), 121 Nev.
225, 231,
112 P.3d 1070, 1074 (2005) (Application of the statutory
procedural default rules to post-conviction habeas petitions is mandatory.").
Szluha's petition was untimely as it was filed more than two years after
issuance of the remittitur on direct appeal on December 8, 2015. See NRS
34.726(1); Szluha v. State, Docket No. 65816 (Order of Affirmance,
November 13, 2015). Moreover, the petition was successive as it was the
second petition filed which challenged the validity of the judgment of
conviction, see NRS 34.810(1)(b)(2), and it was an abuse of the writ to the
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extent Szluha litigated a new and different claim from what was previously
litigated in the first petition, see NRS 34.810(2). See Szluha v. State, Docket
No. 73679-COA (Order of Affirmance, August 14, 2018). To overcome the
procedural bars, Szluha had to demonstrate good cause and actual
prejudice. NRS 34.726(1); NRS 34.810(1)(b), (3). This he did not do.
Szluha's argument that Shue provides good cause because the
legal basis for his unit-of-prosecution argument was not available until
Shue was decided is mistaken. Shue did nothing more than interpret the
plain language of NRS 200.710(2) to determine the unit of prosecution, and
thus this argument was available at the time of trial, direct appeal, and the
first habeas proceedings. See Shue, 133 Nev. at 802, 407 P.3d at 336; see
also Hathaway v. State, 119 Nev. 248, 252,
71 P.3d 503, 506 (2003)
(recognizing that good cause may be established where the factual or legal
basis for the claim was not reasonably available to be raised in a timely
petition); Colwell v. State, 118 Nev. 807, 819,
59 P.3d 463, 472 (2002)
(recognizing that a rule is not new when "the court's interpretation is merely
a restatement of existing law," or when this court applies well-established
principles in an analogous case (quoting Buffington, 110 Nev. at 127,
868
P.2d at 645)). Further, Szluha's reading of Shue is flawed as it does not
limit the unit of prosecution for the use of a minor in the production of
pornography to a single offense for a single victim. Shue, 133 Nev. at 801-
1Szluha provided no cogent argument that the holding in Shue, which
analyzed the use of a minor in the production of pornography, applied to his
convictions involving lewdness with a minor under the age of 14 years, and
thus, Shue would not provide good cause for challenging the lewdness
convictions. See Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987)
(noting that it is the appellant's responsibility to present relevant authority
and cogent argument)
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02, 407 P.3d at 336 (recognizing that Shue could be convicted of multiple
offenses for each minor victim used in each performance). Therefore,
concluding that Szluha's petition was procedurally barred and without good
cause, we affirm the order of the district court denying the petition. See
Wyatt v. State, 86 Nev. 294, 298,
468 P.2d 338, 341 (1970) (recognizing that
a decision may be affirmed on appeal where the district court reaches the
correct result albeit for the wrong reason). Accordingly, we
ORDER the judgment o district court AFFIRMED.
J
Parraguirre
J.
Hardesty
J.
Stiglich
cc: Chief Judge, Eighth Judicial District Court
Hon. Joseph T. Bonaventure, Senior Judge
Hon. Jacqueline M. Bluth, District Judge
The Draskovich Law Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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