Gonzalez v. State , 2022 ND 117 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MAY 26, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 117Garron Gonzalez, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210289
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.
AFFIRMED IN PART; APPEAL DISMISSED IN PART.
Opinion of the Court by VandeWalle, Justice.
Yancy B. Cottrill, Williston, ND, for petitioner and appellant; submitted on
brief.
Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee;
submitted on brief.
Gonzalez v. State
No. 20210289
VandeWalle, Justice.
[¶1] Garron Gonzalez appeals from an order denying his motions and
amended motions to suspend judgment and for an order to show cause. He also
appeals from a proposed order to declare him a vexatious litigant. We affirm in
part, and dismiss the appeal in part.
I
[¶2] Gonzalez argues the district court erred by denying his motion to
suspend judgment, amended motion to suspend judgment, motion for an order
to show cause, and amended motion for an order to show cause. Gonzalez
claimed in his motions that he received ineffective assistance of post-conviction
counsel because his attorney for his eighth application for post-conviction relief
did not communicate with him and did not file evidence supporting his
application. Gonzalez’s motions will be treated as another application for post-
conviction relief. See Atkins v. State, 2021 ND 34, ¶ 8, 955 N.W.2d 109 (stating
a motion for reconsideration relating to an underlying order denying post-
conviction relief may not be used to avoid statutory post-conviction procedures
and will be treated as another application for post-conviction relief). Gonzalez
is precluded from claiming ineffective assistance of post-conviction counsel. See
N.D.C.C. § 29-32.1-09(2); Atkins, at ¶ 11. We conclude the district court did not
err in denying Gonzalez’s application for post-conviction relief, titled as
motions to suspend judgment and for an order to show cause. We summarily
affirm the orders under N.D.R.App.P. 35.1(a)(7).
II
[¶3] Gonzalez also appeals from “the Findings and Order Declaring the
Plaintiff a Vexatious Litigant in the above titled actions entered on the 3rd day
of February, 2022 in the District Court of Burleigh County, North Dakota, the
Honorable Bruce Romanick presiding.” The February 3, 2022 order declaring
plaintiff a vexatious litigant is a proposed pre-filing order.
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[¶4] Under N.D. Sup. Ct. Admin. R. 58(5), if the presiding judge finds that
there is a basis to conclude the person is a vexatious litigant and that a pre-
filing order should be issued, the judge must issue a proposed pre-filing order
along with proposed findings supporting the issuance of the pre-filing order.
N.D. Sup. Ct. Admin. R. 58(5). After the proposed order is issued, the person
who would be designated as a vexatious litigant has 14 days to file a written
response. Id. A pre-filing order may be issued if there is no response after 14
days or if the presiding judge concludes following a response that there is a
basis for issuing the order. Id. A pre-filing order designating a person as a
vexatious litigant may be appealed. N.D. Sup. Ct. Admin. R. 58(6); N.D.C.C. §
28-27-02.
[¶5] The February 3, 2022 order states it is a proposed order and Gonzalez
has 14 days to file a written response. Gonzalez filed the notice of appeal six
days after entry of the proposed order. A pre-filing order was never entered.
The proposed order is not appealable, and the appeal on this issue is dismissed.
III
[¶6] We summarily affirm the orders denying Gonzalez’s application for post-
conviction relief, titled as motions to suspend judgment and for an order to
show cause, under N.D.R.App.P. 35.1(a)(7). We dismiss Gonzalez’s appeal from
the proposed order to declare him a vexatious litigant.
[¶7] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
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