from the District Court of Burleigh County, South Central
Judicial District, the Honorable Bruce A. Romanick, Judge.
P. Everett, petitioner and appellant; (on brief).
K. Neufeld, Assistant State's Attorney, Bismarck, ND, for
respondent and appellee; (on brief).
1] Tilmer Everett appeals from a district court order denying
his petition for post-conviction relief based on alleged
newly discovered evidence. Everett argues the district court
erred in denying his petition and denying his request for an
evidentiary hearing. Everett is subject to an order
prohibiting him from filing new or additional post-conviction
relief claims, and we treat the district court's current
order as denying Everett leave to file additional motions.
Orders denying leave to file are not appealable. We dismiss
2] In 2007 a jury found Everett guilty of gross sexual
imposition. This Court affirmed the conviction in State
v. Everett, 2008 ND 126, 756 N.W.2d 344. Everett
unsuccessfully filed numerous applications for
post-conviction relief. Everett v. State, 2016 ND
78, ¶ 24, 877 N.W.2d 796, reh'g denied May
26, 2016; 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, ¶ 32, 757 N.W.2d
530, reh'g denied Dec. 16, 2008; see
also State v. Everett, 2014 ND 191, 858 N.W.2d 652.
3] In August 2015 the district court issued an order barring
Everett from future filings without the court's
permission. The order states in relevant part:
"[Everett] may not file any further motions or
pleading[s] 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
Everett, 2016 ND 78, ¶ 22, 877 N.W.2d 796. This
Court affirmed the August 2015 order, concluding it met the
requirements in State v. Holkesvig, 2015 ND 105,
¶¶ 7-12, 862 N.W.2d 531, and Wheeler v.
State, 2015 ND 264, ¶¶ 5-6, 872 N.W.2d 634.
Everett, 2016 ND 78, ¶ 23, 877 N.W.2d 796.
After the 2016 order restricting further filings, Everett
submitted two additional applications. The district court
denied him leave to file. This Court dismissed the appeals
because an order denying a motion to file newly discovered
evidence and an order denying leave to file an application
are not appealable. Everett v. State, 2017 ND 111,
¶ 5, 893 N.W.2d 506; Everett, 2017 ND 93,
¶ 14, 892 N.W.2d 898.
4] Under terms of the district court's August 2015 order,
Everett needed leave of the district court to file further
papers or pleadings in the current case. On May 23, 2017
Everett sent the court a "motion for permission to do
petition for relief in pursuant to N.D.C.C. 29-32.1-01(e),
" which the district court interpreted as a request for
leave to file a petition for post-conviction relief. As
required under the August 2015 order, upon receipt of
Everett's papers the district court was required to
determine whether "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.").
Despite the need to do so, the district court took no action
on Everett's motion for leave to file.
5] On September 25, 2017 Everett sent the court "a
motion in the district court April 4, 2017 to prosecute case
no. 06-9417 as pursuant to N.D.C.C. 11-16-06. What's
going on? (Probable Cause has been Disclosed)." Again
the district court did not act on the motion as required
under the August 2015 order. On October 2, 2017 Everett sent
the court a motion for post-conviction relief and affidavit
in support of his motion. Everett's application alleged
the State and district court purposefully withheld evidence
to wrongfully imprison him. The affidavit alleges exculpatory
or recanting statements made by the victim in 2006. The State
did not respond to Everett's filings, as permitted under
the district court's August 2015 order. ("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.").
6] On November 1, 2017 the district court issued an order
summarily denying Everett's petition for post-conviction
relief. The district court issued that order without first
finding Everett satisfied the pre-filing requirements of the
district court's August 2015 order, without first
notifying the State in writing that Everett's papers
would be filed and without giving the State an opportunity to
respond. Rather, the district court's order stated:
"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 ...