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Everett v. State

Supreme Court of North Dakota

April 12, 2016

Tilmer Paul Everett, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

         Tilmer P. Everett, self-represented, Bismarck, N.D.; on brief.

         Tessa M. Vaagen, Burleigh County State's Attorney, Bismarck, N.D., for respondent and appellee; on brief.

         Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by McEvers, Justice.

          OPINION

Page 797

          Lisa Fair McEvers, Justice.

          [¶1] Tilmer Everett appeals from a district court order denying his application for post-conviction relief and barring him from filing further motions or pleadings without leave of the district court. We affirm.

         I

          [¶2] In 2007, a jury convicted Everett of gross sexual imposition. He appealed, arguing the State violated his constitutional right to remain silent, the court erred by failing to admonish the jury before taking two recesses during trial, and there was insufficient evidence to support his conviction. This Court affirmed the judgment. State v. Everett, 2008 ND 126, 756 N.W.2d 344.

          [¶3] In June 2007, Everett applied for post-conviction relief, alleging ineffective assistance of counsel and prosecutorial misconduct. Everett later amended his application for post-conviction relief, alleging twelve counts of prosecutorial misconduct and fourteen counts of ineffective assistance of counsel. The State moved for summary dismissal. The district court denied Everett's application, finding no genuine issues of material fact existed and the State was entitled to a judgment as a matter of law. Everett appealed, and this Court affirmed. Everett v. State, 2008 ND 199, 757 N.W.2d 530.

          [¶4] In March 2009, Everett filed a second application for post-conviction relief, claiming a law enforcement officer gave false and perjured testimony during his trial. The district court denied Everett's application, and Everett did not appeal that decision.

          [¶5] In June 2009, Everett filed a third application for post-conviction relief. The district court denied his application. Everett appealed, arguing the State failed to disclose evidence favorable to him, the State used evidence obtained from an unlawful arrest, and there was a conspiracy to commit fraud and perjury. We affirmed the district court's decision. Everett v. State, 2010 ND 4, 789 N.W.2d 282.

          [¶6] In May 2010, Everett filed his fourth application for post-conviction relief. The district court denied his application. Everett appealed, arguing he was denied effective assistance of counsel in his direct appeal, his conviction was obtained by the unconstitutional failure of the State to disclose evidence favorable to him, and the conviction was obtained by the use of evidence from an unlawful arrest. We affirmed the district court's decision. Everett v. State, 2010 ND 226, 795 N.W.2d 37.

          [¶7] In June 2011, the district court dismissed Everett's fifth application for post-conviction relief, and denied a subpoena request and a motion to recuse or remove the district court ...


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