877 N.W.2d 796
N.D.2016Background
- Everett was convicted in 2007 of gross sexual imposition and the conviction was affirmed on direct appeal.
- Beginning in 2007, Everett pursued multiple post-conviction relief applications (seven total by 2015) with various denials and affirmations by this Court.
- In June 2015, Everett filed his current post-conviction relief application under N.D.C.C. § 29-32.1-01(3)(a)(1), alleging newly discovered evidence (911 call transcripts) and ineffective assistance of prior counsel.
- The State moved for summary disposition, arguing untimeliness, res judicata, misuse of process, and a bar on further filings; the district court granted summary dismissal.
- The district court also barred Everett from filing future motions or pleadings related to his conviction without leave of court; Everett appeals the dismissal and the filing ban.
- The North Dakota Supreme Court affirmed, upholding the summary dismissal and the prohibition on further filings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness and bar on post-conviction relief | Everett argued transcripts are newly discovered evidence under §29-32.1-01(2). | State argued untimely, barred by res judicata and misuse of process, with no exceptions valid. | Summary disposition upheld; application untimely and barred. |
| Newly discovered evidence requirement for transcripts | Transcripts of 911 calls were newly discovered and material to innocence. | Not newly discovered; issues already raised; not material to trial outcome. | Not newly discovered; evidence not likely to change the trial result. |
| Court-imposed bar on future filings without leave | Bar violates due process and access to courts. | Court may restrict hyperactive litigants to protect process integrity. | Affirmed; order barring future filings upheld. |
Key Cases Cited
- Chisholm v. State, 2015 ND 279 (ND 2015) (burden on post-conviction petitioner; standard of review)
- Wacht v. State, 2015 ND 154 (ND 2015) (new trial analysis for newly discovered evidence; standards applied)
- Holkesvig v. State, 2015 ND 105 (ND 2015) (courts may limit filings to manage access to courts)
- Wheeler v. State, 2015 ND 264 (ND 2015) (affirmed filing restrictions on repetitive post-conviction claims)
- Everett v. State, 2015 ND 162, 870 N.W.2d 26 (ND 2015) (prior post-conviction relief decision addressing 911-call evidence)