from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Donald Hager, Judge.
LaCoursiere, Assistant State's Attorney, Grand Forks, ND,
for plaintiff and appellee; submitted on brief
Shipton, self-represented, Terre Haute, IN, defendant and
appellant; submitted on brief.
VANDEWALLE, CHIEF JUSTICE
Dennis Gene Shipton appealed from district court orders
summarily dismissing his petition for a writ of error coram
nobis and his motion to reconsider. We affirm.
In April 1993, Shipton pleaded guilty to possession of
methamphetamine with intent to deliver and possession of
marijuana with intent to deliver. Pursuant to N.D. Sup. Ct.
Admin. R. 19, the case files were destroyed in 2007. Shipton
filed a petition for a writ of error coram nobis on October
22, 2018. The petition alleged violations of the Fifth
Amendment and ineffective assistance of counsel based on
counsel's failure to seek dismissal on the grounds of
double jeopardy. Shipton did not allege newly discovered
In its order, the district court noted that North Dakota does
not recognize a writ of error coram nobis and instead would
treat the petition as one for post-conviction relief. After
applying post-conviction relief standards, the court
summarily dismissed Shipton's petition as untimely and
frivolous. Shipton filed a motion to reconsider, arguing that
the State prejudiced him by prematurely destroying records
from his cases. The court denied Shipton's motion.
North Dakota "will treat [a petition for writ of error
coram nobis] as one for post-conviction relief under Chapter
29-32, North Dakota Century Code, the Uniform Post-Conviction
Procedure Act." State v. Lueder, 242 N.W.2d
142, 144 (N.D. 1976). Post-conviction relief proceedings are
civil in nature and governed by the North Dakota Rules of
Civil Procedure. Atkins v. State, 2019 ND 146,
¶ 4, 928 N.W.2d 438. This Court has explained that
summary dismissal of an application for post-conviction
relief "is analogous to dismissal of a civil complaint
under N.D.R.Civ.P. 12(b) for failure to state a claim upon
which relief can be granted." Chase v. State,
2017 ND 192, ¶ 6, 899 N.W.2d 280. On appeal from a
dismissal under N.D.R.Civ.P. 12(b)(6), this Court construes
the application in the light most favorable to the applicant,
accepting the well-pleaded allegations as true. Id.
We will affirm a dismissal for failure to state a claim
"if it would be impossible for the applicant to prove a
claim for which relief can be granted." Id.
"A petitioner for post-conviction relief has the burden
of establishing grounds for post-conviction relief."
Atkins, at ¶ 4.
A petitioner must file an application for post-conviction
relief within two years of the date the conviction becomes
final. N.D.C.C. § 29-32.1-01(2). An exception to the
two-year time limit exists if the petitioner alleges the
existence of newly discovered evidence. N.D.C.C. §
29-32.1-01(3)(a)(1). "Post-conviction relief may be
granted when 'evidence, not previously presented and
heard, exists requiring vacation of the conviction or
sentence in the interest of justice.'"
Kovalevich v. State, 2018 ND 184, ¶ 4, 915
N.W.2d 644 (quoting N.D.C.C. §
29-32.1-01(1)(e)). An application alleging newly discovered
evidence must be filed within two years of the date the
petitioner discovers or reasonably should have discovered the
existence of the new evidence. N.D.C.C. §
Shipton bears the burden of establishing grounds for
post-conviction relief. Atkins, 2019 ND 146, ¶
4, 928 N.W.2d 438. In this case, Shipton filed his petition
twenty-five years after his 1993 convictions. To allow this
Court to examine his petition past the two- year statutory
limitation for post-conviction relief, Shipton needed to
allege newly discovered evidence that, "if proved and
reviewed in light of the evidence as a whole, would establish
[he] did not engage in the criminal conduct for which [he]
was convicted." N.D.C.C. § 29-32.1-01(3)(a)(1).
Neither Shipton's petition nor the record suggest newly
Shipton alleges the destruction of the case files from his
1993 conviction prejudiced him. However, the record shows
Shipton was unaware of the destruction of the case files in
2007 when he filed his 2018 petition. Shipton only learned
the files had been destroyed when the State noted the
destruction in its answer to his petition. More importantly,
any evidence included in the 1993 case files would have
already been known or reasonably should have been discovered
by Shipton. See N.D.C.C. § 29-32.1-01(3)(b). No
new evidence existed within the case files ...