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Everett v. State

Supreme Court of North Dakota

April 25, 2017

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 Everett, self-represented, petitioner and appellant; on brief.

          Tessa M. Vaagen, Assistant State's Attorney, for respondent and appellee; on brief.

          McEvers, Justice.

         [¶ 1] Tilmer Everett appeals from an order denying him leave of court for further filings entered after he moved for permission to file what he claims is newly discovered evidence and an application for post-conviction relief. Everett is subject to an injunctive order barring him from future filings without the district court's approval. We conclude the order denying him leave of court is not an appealable order. We dismiss the appeal.

         I

         [¶ 2] In 2007 Everett was convicted of gross sexual imposition after a jury found him guilty, and this Court summarily affirmed his criminal judgment on appeal. State v. Everett, 2008 ND 126, 756 N.W.2d 344. Everett has since filed numerous post-conviction relief applications, which have been denied and upheld on appeal. See Everett v. State, 2016 ND 78, 877 N.W.2d 796; Everett v. State, 2015 ND 162, 870 N.W.2d 26; Everett v. State, 2012 ND 189, 821 N.W.2d 385; Everett v. State, 2011 ND 221, 806 N.W.2d 438; Everett v. State, 2010 ND 226, 795 N.W.2d 37; Everett v. State, 2010 ND 4, 789 N.W.2d 282; Everett v. State, 2008 ND 199, 757 N.W.2d 530; see also State v. Everett, 2014 ND 191, 858 N.W.2d 652.

         [¶ 3] On August 6, 2015, the district court entered an order finding Everett's filings repetitive, excessive, and cumbersome and barring Everett from future filings without leave of the court:

[H]e may not file any further motions or pleading in or related to his criminal action 08-06-K-1026 at the district court level, except after seeking and receiving approval of the presiding judge of the South Central Judicial District or her/his designee to file a proper application under [N.D.C.C. §] 29-32.1-04 where Everett succinctly and concisely establishes an exception to the statute of limitation under [N.D.C.C. §] 29-32.1-01(3) and is not subject to summary disposition under [N.D.C.C. §] 29-32.1-09. The State is relieved from responding to any further motions or pleadings filed in District Court in these cases, unless the District Court reviews the motion or pleading, determines it has merit and, in writing, permits Everett's filing and requests a response.

         In Everett, 2016 ND 78, ¶¶ 1, 22-24, 877 N.W.2d 796, we affirmed the district court's order, concluding the order did not violate Everett's due process rights. [1]

         [¶ 4] On February 17, 2016, Everett moved the district court for permission to file newly discovered evidence and another post-conviction relief application claiming newly discovered evidence under N.D.C.C. § 29-32.1-01(3). In a March 2016 order, the court denied leave to allow the filings and dismissed the matter. The court explained:

Everett again alleges he was not provided information regarding a companion case, which led to the investigation leading to his conviction. The information was referenced in the trial of the matter. Everett has on multiple occasions alleged this information is new evidence. Everett on every occasion has failed to show the alleged new evidence would have any bearing on the case and each time his motions have been meritless. The Court is not going to address this same information once again.
The Court has reviewed the new application and finds all of the alleged new allegations are meritless and Everett has previously brought these same matters before the Court ...

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