from the District Court of Ramsey County, Northeast Judicial
District, the Honorable Donovan J. Foughty, Judge.
C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
M. Agotness, State's Attorney, Devils Lake, ND, for
respondent and appellee.
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.
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
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
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.
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 ...