2023 ND 243
N.D.2023Background
- Russell Wayne Everett Jr. was convicted of two counts of gross sexual imposition and sentenced to life with parole; his conviction was affirmed on appeal.
- In 2018, Everett filed for post-conviction relief on several grounds, including witness coercion, newly discovered evidence, ineffective assistance of counsel, and the victim's absence at trial.
- The district court denied his first post-conviction relief application and a subsequent motion to amend, but Everett was not served with the order denying relief.
- In 2023, Everett filed a second post-conviction application, arguing that delayed discovery of the unserved orders constituted newly discovered evidence and again claimed ineffective assistance on appeal.
- The district court summarily dismissed the second application, prompting this appeal.
Issues
| Issue | Everett's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the unserved orders are newly discovered evidence excusing a late filing | Unserved orders are new evidence allowing late post-conviction relief application beyond the statute of limitations | The orders do not relate to the underlying criminal conduct or innocence | Orders do not qualify as newly discovered evidence; application untimely |
| Timeliness of ineffective assistance of counsel claim | Claim can be brought based on delayed discovery or served orders | Claim outside 2-year statute, no qualifying exception | Application untimely; dismissal affirmed |
| Validity of summary dismissal by the district court | Dismissal improper given asserted claims | Proper based on failure to fit statutory criteria | Dismissal affirmed |
| Consideration of remaining arguments | Should warrant reversal or further review | Not material or without merit | Not considered |
Key Cases Cited
- State v. Everett, 913 N.W.2d 774 (N.D. 2018) (affirming Everett's conviction on direct appeal)
- Bridges v. State, 977 N.W.2d 718 (N.D. 2022) (rules governing post-conviction proceedings)
- Chatman v. State, 908 N.W.2d 724 (N.D. 2018) (standards for review on post-conviction appeal)
- Burden v. State, 930 N.W.2d 619 (N.D. 2019) (summary dismissal standards for claims on post-conviction relief)
- Morel v. State, 912 N.W.2d 299 (N.D. 2018) (when a conviction becomes final for post-conviction timing)