Comes v. State , 2016 ND 118 ( 2016 )

Filed 6/30/16 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2016 ND 118

Marlon Leon Comes, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20160056

Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge.

AFFFIRMED.

Per Curiam.

Mark T. Blumer, P.O. Box 7340, Fargo, ND 58106, for petitioner and appellant; submitted on brief.

Lonnie Olson, 524 Fourth Ave. N.E., Unit 16, Devils Lake, ND 58301, for respondent and appellee; submitted on brief.

Comes v. State

No. 20160056

Per Curiam.

[¶1] Marlon Comes appealed from a district court order dismissing his application for post-conviction relief and order denying his motion for reconsideration.  The district court dismissed Comes’ application as untimely under N.D.C.C. § 29-32.1-01(2) because the two-year statute of limitations elapsed on his claim.  Comes argues the newly discovered evidence exception applies under N.D.C.C. § 29-32.1-01(3)(a)(1) because, in September 2014, he received a letter from the North Dakota Parole Board informing him when he is eligible for parole, which was different than explained to him at sentencing.  We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7).   See Johnson v. State , 2015 ND 7, ¶ 7, 858 N.W.2d 632 (holding the newly discovered evidence exception does not apply when the content of the letter does not establish petitioner did not engage in criminal conduct for which he was convicted).

[¶2] Gerald W. VandeWalle, C.J.

Lisa Fair McEvers

Daniel J. Crothers

Dale V. Sandstrom

Carol Ronning Kapsner