Everett v. State , 2020 ND 257 ( 2020 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
DECEMBER 17, 2020
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2020 ND 304
Tilmer Everett, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20200099
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
DISMISSED.
Opinion of the Court by Tufte, Justice.
Tilmer Everett, self-represented, Bismarck, N.D., petitioner and appellant;
submitted on brief.
Karlei K. Neufeld, Assistant State’s Attorney, and Jamie Schaible, under the
Rule on Limited Practice of Law by Law Students, Bismarck, N.D., for
respondent and appellee; submitted on brief.
Everett v. State
No. 20200099
Tufte, Justice.
[¶1] Tilmer Everett appeals a district court order denying his petition for
postconviction relief based on allegedly newly discovered evidence. Everett
argues that the court erred in denying his petition and dismissing his related
motions. We treat the district court’s current order as denying Everett leave to
file additional motions. Orders denying leave to file are not appealable. We
dismiss Everett’s appeal.
I
[¶2] In 2007 a jury found Everett guilty of gross sexual imposition. This Court
affirmed the conviction in State v. Everett, 2008 ND 126, 756 N.W.2d 344.
Everett unsuccessfully filed numerous applications for postconviction relief.
Everett v. State, 2016 ND 78, ¶ 24, 877 N.W.2d 796, reh’g denied May 26, 2016;
Everett v. State, 2015 ND 162, 870 N.W.2d 26; Everett v. State, 2012 ND 189,
821 N.W.2d 385; Everett v. State, 2011 ND 221, 806 N.W.2d 438; Everett v.
State, 2010 ND 226, 795 N.W.2d 37; Everett v. State, 2010 ND 4, 789 N.W.2d
282; Everett v. State, 2008 ND 199, ¶ 32, 757 N.W.2d 530, reh’g denied Dec. 16,
2008; see also State v. Everett, 2014 ND 191, 858 N.W.2d 652.
[¶3] In August 2015 the district court barred Everett from future filings
without leave of the court. The order states in relevant part:
“[Everett] may not file any further motions or pleading[s] in or
related to his criminal action 08-06-K-1026 at the district court
level, except after seeking and receiving approval of the presiding
judge of the South Central Judicial District or her/his designee
to file a proper application under [N.D.C.C. §] 29-32.1-04 where
Everett succinctly and concisely establishes an exception to the
statute of limitation under [N.D.C.C. §] 29-32.1-01(3) and is not
subject to summary disposition under [N.D.C.C. §] 29-32.1-09. The
State is relieved from responding to any further motions or
pleadings filed in District Court in these cases, unless the District
Court reviews the motion or pleading, determines it has merit,
and, in writing, permits Everett’s filing and requests a response.
1
Everett v. State, 2016 ND 78, ¶ 22, 877 N.W.2d 796. This Court affirmed the
decision. Id. at ¶ 24. This Court held three subsequent cases were not
appealable. Everett v. State, 2017 ND 111, 893 N.W.2d 506; Everett v. State,
2017 ND 93, 892 N.W.2d 898; Everett v. State, 2018 ND 114, 910 N.W.2d 835.
[¶4] Under the terms of the district court’s August 2015 order, Everett needed
leave of the district court to file any documents relating to his criminal case.
On July 10, 2019, Everett sent the court both a postconviction relief application
and a motion including a request for “approval to file a proper petition for post-
conviction relief under N.D.C.C. 29-32.1-04.” Under the August 2015 order,
upon receipt of Everett’s papers the district court should have determined prior
to filing whether “Everett succinctly and concisely establishes an exception to
the statute of limitation under [N.D.C.C. §] 29-32.1-01(3) and is not subject to
summary disposition under [N.D.C.C. §] 29-32.1-09.”
[¶5] In a September 24, 2019 order, the district court stated:
Everett is under the false impression he does not have to ask
permission to file anymore. He is wrong. This matter is dismissed
for Everett’s failure to request permission to file a new action.
The order did not mention Everett’s motion for permission, but went on to deny
the petition on the merits:
Even with the dismissal in the prior paragraph, the Court
did review Everett’s new request alleging he has discovered new
evidence. . . .
....
The Court, in viewing what Everett alleges is new evidence,
finds Everett has failed to show there is a reasonable inference
that would raise a genuine issue of material fact; therefore, he is
not entitled to a hearing. . . .
Everett alleges under N.D.C.C. [§] 29-32.1-01 even though
the two years to file post-conviction relief has passed, this new
evidence warrants a review of his post-conviction request. The
Court finds this is not new evidence, simply the same argument
Everett has consistently used through his appeal and post-
conviction efforts.
The petition for post-conviction relief is denied.
2
[¶6] On January 23, 2020, the district court entered judgment summarily
denying Everett’s application for postconviction relief. Everett now appeals
that judgment.
II
[¶7] This case is similar to Everett, 2018 ND 114, 910 N.W.2d 835, which
involved a “motion for permission to do petition for relief in pursuant to
N.D.C.C. [§] 29-32.1-01(1)(e)” and an application for postconviction relief. The
district court’s August 2015 order barring Everett from filing without leave
likewise applied to that case. Id. at ¶ 7. There, we treated “the district court’s
current order as one denying Everett leave to file additional claims” and
dismissed Everett’s appeal because “[o]rders denying leave to file are not
appealable.” Id. at ¶ 11. The court’s order in that case was similar to the order
at issue here: “The petition for post-conviction relief is denied. All motions
brought by Everett to file new evidence with this Court are denied.” Id. at ¶ 7.
[¶8] Everett argues the district court erred in denying his motion for
permission to file and dismissing his application for postconviction relief. The
court did not follow the procedure set out in its pre-filing order. First, the court
erroneously stated that Everett had not requested permission to file. He had.
The district court may deny filing without a request for permission to file or a
district court determination that the application may have merit by “succinctly
and concisely establish[ing] an exception to the statute of limitation under
[N.D.C.C. §] 29-32.1-01(3) and is not subject to summary disposition under
[N.D.C.C. §] 29-32.1-09.” Everett, 2018 ND 114, ¶ 8, 910 N.W.2d 835.
[¶9] Here, the court should not have ruled on the merits of Everett’s
postconviction relief claims. “If orders limiting abusive filings are to have
credibility with litigants, it is incumbent on courts to make the required initial
determinations whether a particular litigant’s proffered papers will be filed.
Without judicial adherence to our orders, we have little reason to believe others
will comply.” Id. at ¶ 9 (citation omitted). In this case the district court
summarily dismissed Everett’s new postconviction relief claims after
determining that his allegations simply restated arguments that have been
rejected in prior proceedings and are not new evidence. On the basis of that
3
finding, we can conclude as a matter of law that Everett did not meet the
meritorious claim requirement in the August 2015 order. Therefore, we treat
the court’s disposition as a denial of a request for leave to file. Denial of leave
to file is not appealable, and we dismiss Everett’s appeal. See Everett, 2018 ND
114, ¶ 10, 910 N.W.2d 835; Everett, 2017 ND 111, ¶ 5, 893 N.W.2d 506.
III
[¶10] Because Everett cannot file new papers or pleadings without leave of
court, we treat the district court’s current order as one denying Everett leave
to file additional claims. Orders denying leave to file are not appealable. We
dismiss Everett’s appeal.
[¶11] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
4