from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable John A. Thelen,
Meredith H. Larson, Assistant State's Attorney, Grand
Forks, ND, for plaintiff and appellee; submitted on brief.
O. Diamond, Fargo, ND, for defendant and appellant; submitted
Cody Michael Atkins appeals from a district court order
denying his motion to withdraw his guilty plea and his motion
for a new trial. Atkins argues the district court erred by
(1) classifying his motion to withdraw his guilty plea as a
post-conviction relief proceeding, and (2) finding he was
procedurally barred from raising his N.D.R.Crim.P. 11 claims
under misuse of process and res judicata. Atkins also argues
the district court abused its discretion by finding he did
not meet the burden required to show the existence of newly
discovered evidence in his motion for a new trial. We affirm.
In March 2015, Atkins pleaded guilty to gross sexual
imposition. In June 2015, Atkins was sentenced to 20 years
imprisonment with the North Dakota Department of Corrections,
with five years suspended for a period of 10 years of
supervised probation with credit for time served.
In July 2015, Atkins directly appealed the criminal judgment,
seeking to withdraw his guilty plea, alleging (1) ineffective
assistance of counsel, and (2) the district court's
failure to substantially comply with N.D.R.Crim.P. 11,
resulting in a manifest injustice. This Court affirmed the
criminal judgment in State v. Atkins, 2016 ND 13,
¶ 10, 873 N.W.2d 676, and declined to address
Atkins' argument that he should be permitted to withdraw
his guilty plea, holding the issue was inappropriate for
appeal because Atkins failed to move the district court to
withdraw his guilty plea. Id. at ¶ 5. This
Court addressed Atkins' ineffective assistance of counsel
claim, holding there was insufficient evidence in the record
on direct appeal to show Atkins' counsel was plainly
defective and citing State v. Strutz, 2000 ND 22,
¶ 26, 606 N.W.2d 886, for the proposition: "When
the record on direct appeal is inadequate to determine
whether the defendant received ineffective assistance, the
defendant may pursue the ineffectiveness claim at a
post-conviction proceeding where an adequate record can be
made." Atkins, at ¶ 9.
In March 2016, Atkins filed his first application for
post-conviction relief. He sought relief on three grounds:
(1) evidence not previously heard, (2) denial of effective
assistance of counsel, and (3) conviction obtained by use of
coerced confession. The district court dismissed the action.
Atkins did not appeal the dismissal.
In September 2016, Atkins filed his second application for
post-conviction relief, again alleging ineffective assistance
of counsel. The State moved to dismiss the application,
arguing Atkins failed to provide evidentiary support for his
claim, and the district court granted the motion. Atkins
appealed the court's order, and this Court affirmed,
concluding Atkins was put to his proof when the State moved
for summary dismissal and that he failed to present any
competent evidence raising an issue of material fact.
Atkins v. State, 2017 ND 290, ¶ 11, 904 N.W.2d
In July 2017, Atkins filed a motion under N.D.R.Crim.P.
35(a), arguing he was entitled to relief because he was
precluded from using the internet as part of his probationary
conditions. The State opposed the motion, and the district
court denied the motion, finding Atkins' motion was his
"third post-conviction request for relief," and the
condition of his probation limiting his internet access was a
"valid, reasonable condition which does not violate
Atkins' First Amendment rights."
In November 2017, Atkins filed a motion to dismiss the gross
sexual imposition charge because the prosecution failed to
seize, try, and prosecute in accordance with constitutional
law. The State opposed the motion, arguing Atkins' motion
was unsupported by facts or legal argument. The district
court denied the motion.
In February 2018, Atkins moved to "vacate" his
guilty plea. Atkins alleged he was misinformed by his
attorney when deciding to plead guilty. In March 2018, Atkins
moved for a new trial, alleging the existence of newly
discovered evidence, including: (1) text messages; (2) a
sexual assault kit; (3) the credibility of the State's
witnesses; and (4) evidence tampering by the State. Atkins
argued the newly discovered evidence was exculpatory.
Atkins' court-appointed counsel later filed a
supplemental brief on both motions further outlining his
grounds for relief, adding the allegation that the district
court failed to comply with N.D.R.Crim.P. 11 in support of
his motion to withdraw his guilty plea. Atkins submitted 7
exhibits along with his motions including a print-out of the
alleged newly discovered text messages and transcripts from
the 2015 hearings. A hearing was held on the motions and
Atkins testified. On October 31, 2018, the court issued an
order classifying Atkins' motions as an action for
post-conviction relief under this Court's decision in
State v. Gress, 2011 ND 233, 807 N.W.2d 567, ...