from the District Court of Cass County, East Central Judicial
District, the Honorable John C. Irby, Judge.
P. Baumann, Minot, ND, for petitioner and appellant.
J. Peters, Assistant State's Attorney, Fargo, ND, for
respondent and appellee.
1] Sergei Carlson appeals from a district court order
summarily dismissing his post-conviction relief application.
Carlson argues the court erred in summarily dismissing his
post-conviction relief application based on the statute of
limitations. We conclude the district court did not err by
summarily dismissing Carlson's post-conviction relief
application. We affirm.
2] Sergei Carlson was born in Russia and claims he was raised
by an abusive and alcoholic father. When Carlson was five and
a half years old he was dropped off at a Russian orphanage,
where he allegedly suffered mental, physical, and sexual
abuse. Carlson was adopted by an American family. Carlson
indicates his adoptive father was abusive and Carlson
suffered from social isolation and an addiction to computer
3] In July 2007, law enforcement officers responded to a
report of a non-responsive female. When the officers arrived
they found a 16-year-old girl, W.P.C., lying in her bed not
breathing. W.P.C. was pronounced dead. Sergei Carlson, the
victim's adoptive brother, and P.R., the victim's
mother, were the only other people present in the home at the
time of W.P.C.'s death. An autopsy of W.P.C. indicated
the cause of death was suffocation and/or asphyxiation.
Carlson told the officers during an interview that he
strangled W.P.C. with his hands and placed pillows over her
face to muffle the sound. Carlson then indicated he had
sexual contact with W.P.C. after strangling/suffocating her.
4] In September 2008, Carlson pled guilty to murder and
performing a deviant sexual act. Carlson was 15 years old at
the time and was initially charged in juvenile court before
the case was transferred to adult court. He was sentenced to
life imprisonment with the possibility of parole in October
2008. Carlson filed a post-conviction relief application in
October 2016. The district court appointed Carlson counsel at
his request. The State answered Carlson's pro se
application for post-conviction relief in November 2016. The
State subsequently moved for summary disposition,
specifically asserting the application should be barred by
the two-year statute of limitations under N.D.C.C. §
29-32.1-01. Carlson responded to the motion through his
counsel and the parties stipulated that the court could
address the matter of timeliness of Carlson's application
based on the written pleadings before the court. The court
dismissed Carlson's application as untimely in June 2017,
because it did not meet an exception to the two-year statute
of limitations. Carlson filed a notice of appeal in July
5] Carlson argues the district court erred by summarily
dismissing 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 (citations
omitted). "Section 29-32.1-09, N.D.C.C., governs summary
disposition in post-conviction relief proceedings."
Chisholm, at ¶ 8.
The court may grant a motion by either party for summary
disposition if the application, pleadings, any previous
proceeding, discovery, or other matters of record show that
there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law.
N.D.C.C. § 29-32.1-09(3).
6] An application for post-conviction relief must be filed
within two years of the date the conviction becomes final.
N.D.C.C. § 29-32.1-01(2). The conviction in this case
became final when the time for appeal of the conviction to
this Court expired. N.D.C.C. § 29-32.1-01(2)(a). The
three exceptions to the statute of limitations include: (1)
newly discovered evidence, (2) the petitioner establishes
that the petitioner suffered from a physical disability or
mental disease that precluded timely assertion of the
application for relief, or (3) the petitioner asserts a new
interpretation of federal or state law is retroactively
applicable to the petitioner's case. See
N.D.C.C. § 29-32.1-01(3)(a). If the petitioner falls
under one of the three exceptions, the petitioner must file
within two years of discovering the new evidence, the
disability or disease ceases, or the effective date of the