955 N.W.2d 109
N.D.2021Background
- Atkins pleaded guilty to gross sexual imposition in 2015 and had multiple prior post-conviction filings and appeals dismissed.
- In November 2018 he filed a post-conviction application raising 10 grounds (including involuntary confession, knock-and-announce failure, false evidence, malicious prosecution); district court initially dismissed without giving required notice and this Court reversed and remanded.
- On remand Atkins narrowed claims to involuntary/coerced confession, knock-and-announce, malicious prosecution, and added ineffective-assistance-of-post-conviction-counsel; the district court denied relief by order dated December 19, 2019.
- Atkins filed a motion styled as N.D.R.Civ.P. 60(b) reconsideration on January 6, 2020; the district court denied that motion on June 9, 2020.
- Atkins appealed on July 2, 2020. The Supreme Court held Atkins’s appeal of the December 19 order was untimely (no timely notice of appeal) but had jurisdiction over the June 9 denial of the Rule 60(b) motion and treated that motion as a new post-conviction application.
- The Court affirmed the denial of the Rule 60(b) motion, concluding Atkins’s ineffective-assistance-of-post-conviction-counsel claim was properly dismissed under the statute permitting dismissal of such grounds.
Issues
| Issue | Atkins' Argument | State's Argument | Held |
|---|---|---|---|
| Was the December 19, 2019 order denying post-conviction relief properly before the Court? | Atkins implied appeal was timely because he filed a Rule 60(b) motion shortly after the order. | The appeal of the December 19 order was untimely; Atkins’s Rule 60(b) filing does not toll the appeal period in post-conviction proceedings. | Appeal of the December 19 order was untimely; Court lacked jurisdiction over that order. |
| Does a N.D.R.Civ.P. 60(b) motion toll the appeal period in a post-conviction proceeding? | Atkins argued his Rule 60(b) motion should toll appeal time. | The State argued a Rule 60(b) motion is treated as a new post-conviction application and does not toll the appeal period. | Rule 60(b) motions in this context are treated as new post-conviction applications and do not toll appeal time. |
| Was the district court’s denial of the Rule 60(b) motion (treated as a new post-conviction application) erroneous? | Atkins argued post-conviction counsel was ineffective and that warranted relief. | The State contended the claim was barred and properly dismissed under statute permitting dismissal of ineffective-assistance-of-post-conviction-counsel claims. | Court affirmed denial: ineffective-assistance-of-post-conviction-counsel grounds may be dismissed and were properly denied. |
| Is there jurisdiction to review the denial of the Rule 60(b) motion? | Atkins appealed the denial within 60 days of the denial. | — | Court had jurisdiction over the June 9, 2020 denial of the Rule 60(b) motion and reviewed that order. |
Key Cases Cited
- Atkins v. State, 2019 ND 145, 928 N.W.2d 441 (N.D. 2019) (district court must give applicant time to respond before dismissing under N.D.R.Ct. 3.2)
- Kovalevich v. State, 2019 ND 210, 932 N.W.2d 354 (N.D. 2019) (Rule 60(b) in post-conviction context is treated as a new post-conviction application and does not toll appeal time)
- Estate of Vendsel, 2017 ND 71, 891 N.W.2d 750 (N.D. 2017) (actual knowledge evidenced by record action starts appeal period when no formal notice of entry is served)
- Myers v. State, 2017 ND 66, 891 N.W.2d 724 (N.D. 2017) (post-conviction relief actions are civil and governed by the Rules of Civil Procedure)