Everett v. State , 2023 ND 243 ( 2023 )


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  •                                                                              FILED
    IN THE OFFICE OF THE
    CLERK OF SUPREME COURT
    DECEMBER 28, 2023
    STATE OF NORTH DAKOTA
    IN THE SUPREME COURT
    STATE OF NORTH DAKOTA
    
    2023 ND 243
    Russell Wayne Everett Jr.,                          Petitioner and Appellant
    v.
    State of North Dakota,                              Respondent and Appellee
    No. 20230192
    Appeal from the District Court of Burleigh County, South Central Judicial
    District, the Honorable Daniel J. Borgen, Judge.
    AFFIRMED.
    Opinion of the Court by Crothers, Justice.
    Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.
    Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee.
    Everett v. State
    No. 20230192
    Crothers, Justice.
    [¶1] Russell Everett, Jr. appeals from a district court’s order dismissing his
    application for post-conviction relief. Everett argues the court failed to serve
    him with two orders in his first post-conviction relief proceeding and the failure
    to serve these orders denied him the right to appeal. He also claims that his
    ultimate discovery of those orders constitutes newly discovered evidence, and
    that he received ineffective assistance of counsel on direct appeal. We affirm.
    I
    [¶2] Everett was found guilty of two counts of gross sexual imposition and
    was sentenced to two life sentences with parole. Everett appealed his
    conviction and this Court affirmed. State v. Everett, 
    2018 ND 162
    , ¶ 1, 
    913 N.W.2d 774
    . On March 29, 2018, Everett filed for post-conviction relief arguing
    the witness’s family coerced the witness’s testimony, newly discovered evidence
    existed that would overturn his underlying conviction, he received ineffective
    assistance of counsel at trial, and the victim-witness violated his right to a fair
    trial by not attending the trial.
    [¶3] On April 13, 2018, the State moved to summarily dispose of Everett’s
    application for post-conviction relief because the alleged new evidence was
    found during trial and Everett failed to meet the Strickland standard for
    ineffective assistance of counsel. The district court denied Everett’s application
    on May 7, 2018. Neither the order nor a notice of entry of the order was served
    on Everett.
    [¶4] On May 9, 2019, Everett filed a motion to amend his first application for
    post-conviction relief and for leave to file supplemental pleadings. The district
    court denied the motion because Everett did not have the “legal authority to
    modify or amend a petition that has already been dismissed.” On July 17, 2019,
    the court mailed this second order to Everett. See N.D.R.Civ.P. 5(b)(3)(C).
    1
    [¶5] On January 23, 2023, Everett filed a second application for post-
    conviction relief, this time alleging that his learning about the order dismissing
    his application for post-conviction relief and the order denying modification of
    his first application are newly discovered evidence, and that he received
    ineffective assistance of counsel on his direct appeal. The State answered and
    requested summary dismissal of Everett’s application. The court summarily
    dismissed Everett’s second post-conviction relief application.
    II
    [¶6] “Postconviction relief proceedings are civil in nature and governed by the
    North Dakota Rules of Civil Procedure.” Bridges v. State, 
    2022 ND 147
    , ¶ 5,
    
    977 N.W.2d 718
    . “Questions of law are fully reviewable on appeal of a post-
    conviction proceeding.” Chatman v. State, 
    2018 ND 77
    , ¶ 6, 
    908 N.W.2d 724
    .
    This Court has held that, “when a court dismisses an application on its own
    motion, it is analogous to dismissal of a complaint for failure to state a claim
    upon which relief can be granted under N.D.R.Civ.P. 12(b)(6).” Burden v. State,
    
    2019 ND 178
    , ¶ 13, 
    930 N.W.2d 619
    . An appeal from a summary disposition
    under N.D.R.Civ.P. 12(b)(6) requires this Court to construe “the application in
    the light most favorable to the applicant and accepts the well-pleaded
    allegations as true.” Id. at ¶ 14. This Court will affirm “a dismissal for failure
    to state a claim if it would be impossible for the applicant to prove a claim for
    which relief can be granted.” Id.
    III
    [¶7] Everett argues the district court’s two unserved orders denying his
    initial application for post-conviction relief constitute newly discovered
    evidence. He argues that the new evidence permits him to make this second
    application for post-conviction relief after the two-year statute of limitations
    expired.
    [¶8] A claim for post-conviction relief must be brought within two years of the
    underlying conviction becoming final. N.D.C.C. § 29-32.1-01(2). An applicant
    can bring the claim within two years from when the evidence is discovered or
    reasonably should have been discovered. N.D.C.C. § 29-32.1-01(3)(b). To qualify
    2
    as newly discovered evidence, the information must relate to the underlying
    conviction and must establish “the petitioner did not engage in the criminal
    conduct for which the petitioner was convicted.” N.D.C.C. § 29-32.1-01(3)(a)(1).
    [¶9] This Court has stated:
    “A conviction becomes final when (1) the time for appeal of the
    conviction to this Court expires; (2) if an appeal was taken to this
    Court, the time for petitioning the United States Supreme Court
    for review expires; or (3) if review was sought in the United States
    Supreme Court, the date the Supreme Court issues a final order in
    the case. N.D.C.C. § 29-32.1-01(2).”
    Morel v. State, 
    2018 ND 141
    , ¶ 10, 
    912 N.W.2d 299
    . Everett’s conviction became
    final 90 days after his first appeal of the underlying criminal conviction or
    October 9, 2015. U.S. Sup. Ct. R. 13(1); N.D.C.C. § 29-32.1-01(2). An
    application for post-conviction relief can be filed after the two years run if
    newly discovered evidence establishes the petitioner did not engage in the
    conduct relating to the original conviction. N.D.C.C. § 29-32.1-01(3)(a)(1).
    [¶10] Everett’s claimed newly discovered evidence relates to his first
    application for post-conviction relief, which fails to meet the legal test because
    it does not relate to Everett’s criminal conduct or establish that he did not
    engage in conduct leading to the underlying conviction. N.D.C.C. § 29-32.1-
    01(3)(a)(1). Thus, Everett’s second application for post-conviction relief was
    untimely and the district court did not err by dismissing his claim.
    IV
    [¶11] Everett alleges the district court erred by dismissing his claim that his
    appellate counsel was ineffective. Everett had two years to file the post-
    conviction relief claim for ineffective assistance of counsel. His conviction
    became final on October 9, 2018. His ineffective assistance of counsel claim was
    made on January 23, 2023. The intervening period is more than two years and
    no exception to the statute of limitations applies. Therefore, Everett’s claim for
    ineffective assistance of counsel was filed after the statute of limitations
    expired, and the district court did not err in dismissing the claim.
    3
    V
    [¶12] Everett’s remaining arguments are either unnecessary to our decision or
    without merit. The district court’s dismissal of Everett’s application for post-
    conviction relief and ineffective assistance of counsel are affirmed.
    [¶13] Jon J. Jensen, C.J.
    Daniel J. Crothers
    Lisa Fair McEvers
    Jerod E. Tufte
    Douglas A. Bahr
    4
    

Document Info

Docket Number: 20230192

Citation Numbers: 2023 ND 243

Judges: Crothers, Daniel John

Filed Date: 12/28/2023

Precedential Status: Precedential

Modified Date: 12/28/2023