from the District Court of Cass County, East Central Judicial
District, the Honorable Douglas R. Herman, Judge.
A. Gereszek, East Grand Forks, MN, for petitioner and
J. Viste, Assistant State's Attorney, Fargo, ND, for
respondent and appellee.
1] Joshua Ourada appeals from a district court order
summarily dismissing his application for post-conviction
relief. Ourada asserts he was not provided with proper notice
prior to summary dismissal of his application. We reverse and
remand for further proceedings.
2] In June 2017, Ourada pleaded guilty to terrorizing and
preventing arrest or discharge of other duties. Ourada was
sentenced to three years of imprisonment following his guilty
plea. In January 2018, Ourada filed an application for
post-conviction relief. The application raised four issues:
(1) an unlawful search; (2) exigent circumstances; (3) a
challenge to the chain of custody regarding evidence; and (4)
exaggerated charges. The State responded with an answer
asserting Ourada waived the four issues stated in his
application because all nonjurisdictional defects alleged to
have occurred prior to a voluntary guilty plea are waived.
The State's answer also included a request for summary
disposition citing N.D.C.C. § 29-32.1-09(3). Twelve days
later, the district court summarily dismissed Ourada's
application without a response from Ourada.
3] Post-conviction relief proceedings are civil in nature and
all rules and statutes applicable in civil proceedings are
available to the parties. See Vandeberg v. State,
2003 ND 71, ¶ 5, 660 N.W.2d 568. "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." N.D.C.C. §
29-32.1-09(1). Here, the district court, on its own motion,
could have denied Ourada's application as meritless under
N.D.C.C. § 29-32.1-09(1) before the State responded to
the application. However, once the State responded, N.D.C.C.
§ 29-32.1-09(1) was no longer applicable.
4] Consistent with N.D.C.C. § 29-32.1-09(1) and its
requirement that the district court act prior to a response
by the State, the district court treated the State's
answer as a motion for summary disposition under N.D.C.C.
§ 29-32.1-09(3). Section 29-32.1-09(3), N.D.C.C., allows
for summary dismissal of an application for post-conviction
relief as follows:
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.
5] Under N.D.R.Ct. 3.2, "[n]otice must be served and
filed with a motion. The notice must indicate the time of
oral argument, or that the motion will be decided on briefs
unless oral argument is timely requested." N.D.R.Ct.
3.2(a)(1). "Rule 3.2 authorizes the hearing of routine
motions on brief without formal oral arguments but does not
dispense with the requirement that a motion must be
noticed." First W. Bank of Minot v. Wickman,
464 N.W.2d 195, 196 (N.D. 1990).
6] Here, Ourada received the State's answer, but was not
put on notice that the State had effectively motioned for
summary disposition of his post-conviction application. Due
process, even in the post-conviction setting, requires notice
and an opportunity to be heard. See Chisholm v.
State, 2014 ND 125, ¶ 18, 848 N.W.2d 703 (applicant
for post-conviction relief was entitled to notice that his
application may be summarily dismissed and an opportunity to
file an answer brief). Because Ourada's application for