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Everett v. State

Supreme Court of North Dakota

May 8, 2018

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 P. Everett, petitioner and appellant; (on brief).

          Karlei K. Neufeld, Assistant State's Attorney, Bismarck, ND, for respondent and appellee; (on brief).

          OPINION

          CROTHERS, JUSTICE.

         [¶ 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 Everett's appeal.

         I

         [¶ 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 response."

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 ...

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