from the District Court of Cass County, East Central Judicial
District, the Honorable Douglas R. Herman, Judge.
C. Ringsak, for petitioner and appellant.
J. Younggren, Assistant State's Attorney, for respondent
1] David Hieb appeals from a district court order denying his
application for post-conviction relief. Hieb argues his
conviction should be reversed because he pled guilty to
conspiracy to commit felony murder which is not a cognizable
offense. We affirm, concluding Hieb's application is
2] In 2005, Hieb was charged with conspiracy to commit murder
in violation of N.D.C.C. §§ 12.1-06-04 and
12.1-16-01. The information was amended to include an
additional charge of murder in violation of N.D.C.C. §
12.1-16-01(1)(c). The information was amended a second time
to dismiss the murder charge. Hieb pled guilty to conspiracy
to commit murder.
3] On October 7, 2015, Hieb applied for post-conviction
relief. He argued his application was not barred by the
two-year statute of limitations because an exception to the
statute of limitations for the retroactive application of a
new interpretation of state law applies. He claimed this
Court held conspiracy to commit extreme indifference murder
is not a cognizable offense in State v. Borner, 2013
ND 141, 836 N.W.2d 383; Borner applies
retroactively; he pled guilty to conspiracy to commit murder
without specifying which type of murder; and therefore he
pled guilty to an offense that is not a crime.
4] The State requested the application for post-conviction
relief be denied. The State argued the two-year statute of
limitations applied and Hieb voluntarily pled guilty waiving
the right to challenge non-jurisdictional defects. The State
also argued summary disposition was appropriate.
5] The district court denied Hieb's application. The
court found the statute of limitations prohibits the
application and Hieb did not establish he was entitled to an
exception. The court also found Hieb's guilty plea was
knowing and voluntary.
6] Hieb argues the district court erred in denying his
application for post conviction relief and his conviction
should be reversed because conspiracy to commit felony murder
is not a cognizable offense.
7] An application for post-conviction relief must be filed
within two years of the date the conviction becomes final,
(1) The petition alleges the existence of newly discovered
evidence, including DNA evidence, which if proved and
reviewed in light of the evidence as a whole, would establish
that the petitioner did not engage in the ...