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Comes v. State

Supreme Court of North Dakota

February 22, 2018

Marlon Leon Comes, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan J. Foughty, Judge.

          Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

          Kari M. Agotness, State's Attorney, Devils Lake, ND, for respondent and appellee.

          OPINION

          McEvers, Justice.

         [¶ 1] Marlon Comes appeals from a district court order summarily dismissing his post-conviction relief petition and a court order denying his motion for a new trial. We conclude Comes' appeal from the order summarily dismissing his post-conviction relief petition bears arguments which are not ripe for review. Therefore, we dismiss Comes' appeal.

         I

         [¶ 2] In 1995, the State charged Comes with murder, a class AA felony and robbery, a class A felony. Comes received court-appointed counsel. In 1996, Comes pled guilty to both crimes. The district court sentenced Comes to life imprisonment at the North Dakota Department of Corrections with the possibility of parole, and a concurrent 10 years for robbery, with 307 days credit for time served.

         [¶ 3] In 1999, Comes filed his first post-conviction relief petition claiming ineffective assistance of counsel, involuntarily entering a plea of guilty, and a denial of his right to a fair trial. The district court denied the petition, and Comes appealed. This Court summarily affirmed. See Comes v. State, 2000 ND 142, 618 N.W.2d 724. Comes filed a second petition for post-conviction relief in 2011. Comes claimed ineffective assistance of counsel and prosecutorial misconduct. The court denied the petition in 2013. Comes filed a third petition for post-conviction relief in 2013, claiming ineffective assistance of counsel, prosecutorial misconduct, misconduct by the state crime laboratory, and judicial error. The court summarily dismissed the petition in 2014. Comes filed a fourth petition for post-conviction relief in 2015. The court dismissed his petition. Comes appealed, arguing the letter from the parole board was newly discovered evidence. This Court summarily affirmed. See Comes v. State, 2016 ND 118, 881 N.W.2d 256.

         [¶ 4] On June 12, 2017, Comes filed a pro se application for post-conviction relief. The application claims Comes will be subjected to an ex post facto punishment in violation of the U.S. Const. art. I, § 10. Comes alleges his original sentence was life with the possibility of parole after 85 percent of 30 years had been served. Using that calculation, Comes argues he would be eligible for a parole hearing in June 2021, if no good time was given to him prior to that date. Comes believes he will not receive a parole hearing until August 2041, which he argues violates his constitutional rights.

         [¶ 5] In July 2017, the district court summarily dismissed Comes' petition. In August 2017, Comes' court-appointed attorney filed a motion for a new trial and reconsideration of the July 2017 order summarily dismissing Comes' post-conviction relief petition, along with a supporting letter. The State responded to the motion, arguing Comes' application was not timely and that the application of the mortality table found in N.D. Sup. Ct. Admin. R. 51 does not violate the ex post facto clause of the United States Constitution. On September 6, 2017, the court denied Comes' motion for a new trial and reconsideration.

         II

         [¶ 6] Comes argues the district court erred by denying his application for post-conviction relief. This Court has held "the purpose of the Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1, is to furnish a method to develop a complete record to challenge a criminal conviction." Chisholm v. State, 2014 ND 125, ¶ 15, 848 N.W.2d 703 (internal quotation omitted). Summary disposition in a post-conviction relief proceeding is akin to summary judgment under N.D.R.Civ.P. 56. State v. Bender, 1998 ND 72, ¶ 18, 576 N.W.2d 210. "An applicant has the burden of establishing grounds for post-conviction relief." Chisholm, at ¶ 8. "The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding, and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Owens v. State, 1998 ND 106, ¶ 13, 578 N.W.2d 542 (citation omitted).

         [¶ 7] Section 29-32.1-09, N.D.C.C., governs summary disposition in post-conviction relief proceedings.

The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state. The court also may summarily deny a second or successive application for similar relief on behalf of the same applicant and may summarily deny any application when the issues raised in ...

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