Everett v. State

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 243Russell 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).
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[¶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
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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.
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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
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