April 15, 2015
Spencer Curtiss, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
The opinion cannot be considered final until disposition of such petition for rehearing by the court or expiration of 14 days from filing date.
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.
Lee M. Grossman, Valley City, N.D., for petitioner and appellant; submitted on brief.
Pamela A. Nesvig, Assistant State's Attorney, Bismarck, N.D., for respondent and appellee; submitted on brief.
[¶1] Spencer Curtiss appealed from a district court order summarily dismissing his second application for post-conviction relief. In December 2010, a jury convicted Curtiss of gross sexual imposition, and we summarily affirmed his conviction on appeal. State v. Curtiss, 2011 ND 175, 803 N.W.2d 834. In September 2012, Curtiss filed his first application for post-conviction relief, and the district court subsequently held an evidentiary hearing on the application. While that application was pending, Curtiss filed this second post-conviction relief application in August 2014. The State requested the application be dismissed. The district court summarily dismissed his second application because it was filed beyond the two-year statute of limitations. See N.D.C.C. § 29-32.1-01(2).
[¶2] On appeal, Curtiss argues the district court erred in summarily dismissing his second post-conviction relief application because his allegations of newly discovered evidence fall within an exception to the two-year statute of limitations. We affirm under N.D.R.App.P. 35.1(a)(6) and (7). See Johnson v. State, 2015 ND 7, ¶ 7, 858 N.W.2d 632 (summary disposition is appropriate when the petitioner fails to raise a genuine issue of material fact that the alleged newly discovered evidence, which if proved and reviewed in light of the evidence as a whole, would establish the petitioner did not engage in the criminal conduct for which he was convicted, so as to satisfy the newly discovered evidence exception under N.D.C.C. § 29-32.1-01(3)(a)(1)).
[¶3] Gerald W. VandeWalle, C.J., Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner.