Moncada v. State , 2022 ND 80 ( 2022 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
APRIL 14, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 80Joseph Daniel Moncada, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210338
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.
AFFIRMED.
Per Curiam.
Laura C. Ringsak, Bismarck, N.D., for petitioner and appellant; submitted on
brief.
Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, N.D., for
respondent and appellee; submitted on brief.
Moncada v. State
No. 20210338
Per Curiam.
[¶1] Joseph Moncada appeals from an order summarily dismissing his
application for postconviction relief. In 2009, Moncada was found guilty of two
counts of murder and two counts of conspiracy to commit murder. On
September 14, 2021, Moncada filed a motion the court treated as an application
for postconviction relief. Because the application was filed more than two years
after his conviction became final, he must establish an exception under
N.D.C.C. § 29-32.1-01(3) to avoid dismissal for untimeliness. Moncada argues
the new interpretation of state law exception is satisfied by our decision in
State v. Swanson, 2019 ND 181, 930 N.W.2d 645, declaring conspiracy to
commit a “knowing” murder as a non-cognizable offense. Moncada requests his
conspiracy to commit murder charges be vacated. Swanson was published on
July 11, 2019. Therefore, we conclude the district court properly dismissed his
application as untimely because Moncada did not file his application for
postconviction relief within two years of the effective date of Swanson. See Hieb
v. State, 2016 ND 146, ¶ 13, 882 N.W.2d 724 (denying relief because petitioner
did not file his application within two years of the effective date of this Court’s
decision in State v. Borner, 2013 ND 141, 836 N.W.2d 383, declaring conspiracy
to commit extreme indifference murder is a non-cognizable offense). We
summarily affirm under N.D.R.App.P. 35.1(a)(7).
[¶2] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
1