from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable John A. Thelen,
M. Kovalevich, self-represented, Bismarck, ND, petitioner and
appellant; submitted on brief.
Meredith H. Larson, Assistant State's Attorney, Grand
Forks, ND, for respondent and appellee; submitted on brief.
VandeWalle, Chief Justice.
Sean Kovalevich appealed from district court orders summarily
dismissing: (1) a motion for relief from an order denying an
application for post-conviction relief, and (2) an
application for post-conviction relief on the grounds of
newly discovered evidence. The court concluded Kovalevich
could have raised the arguments presented in his motion and
application in earlier proceedings. We affirm.
In October 2013, a jury found Kovalevich guilty of two counts
of gross sexual imposition and one count of corruption of a
minor. The conviction resulted from sexual acts occurring in
2012 at the Canad Inn in Grand Forks. Kovalevich was
sentenced to 30 years in prison and 10 years of supervised
probation. Kovalevich appealed and his conviction was
affirmed on appeal. State v. Kovalevich, 2015 ND 11,
858 N.W.2d 625.
In November 2015 and April 2017, Kovalevich filed
applications for post-conviction relief. The applications
were denied and affirmed on appeal. Kovalevich v.
State, 2017 ND 40, 891 N.W.2d 778; Kovalevich v.
State, 2018 ND 184, 915 N.W.2d 644.
In September 2018, Kovalevich filed a motion for relief under
N.D.R.Civ.P. 60(b) relating to the denial of his April 2017
application for post-conviction relief. He alleged the
prosecuting attorney engaged in misrepresentation and
misconduct in the post-conviction proceeding. He claimed the
attorney assisted a BCI agent in falsely testifying at the
In November 2018, Kovalevich filed another application for
post-conviction relief. He argued newly discovered evidence,
specifically, information contained in Canad Inn receipts
from February and August 2012, showed he did not engage in
the charged conduct. His application also claimed newly
discovered evidence showed the affidavit supporting the
issuance of a search warrant for his residence contained
false and intentionally misleading statements, and the BCI
lacked jurisdiction to investigate him. In response, the
State argued Kovalevich was relitigating claims he raised in
earlier proceedings and sought summary dismissal of
Kovalevich's motion for relief and application for
The district court summarily dismissed both the motion and
the November 2018 application for post-conviction relief. The
court treated Kovalevich's Rule 60(b) motion as an
application for post-conviction relief and concluded
Kovalevich was attempting to relitigate issues he raised in
earlier proceedings. With regard to the application for
post-conviction relief, the court held the February and
August 2012 Canad Inn receipts could have been presented in
earlier proceedings, and the weight and quality of the
additional evidence Kovalevich presented would not likely
result in Kovalevich's acquittal.
Post-conviction relief is governed by N.D.C.C. ch. 29-32.1.
"Post-conviction relief proceedings are civil in nature
and governed by the North Dakota Rules of Civil
Procedure." Wacht v. State, 2015 ND 154, ¶
6, 864 N.W.2d 740 (quoting Haag v. State, 2012 ND
241, ¶ 4, 823 N.W.2d 749); see also Burden v.
State, 2019 ND 178, ¶ 10, (stating the rules of
civil procedure apply to the extent they are not inconsistent
with statutory requirements for post-conviction proceedings).
On appeal from a post-conviction relief proceeding, questions
of law are fully reviewable. Wacht, at ¶ 6.
A district court may summarily dismiss an application for
post-conviction relief "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." N.D.C.C. § 29-32.1-09(3). We review
an appeal from summary dismissal of post-conviction relief as
we would review an appeal from a summary judgment.
Wacht, 2015 ND 154, ¶ 6, 864 N.W.2d 740. The
party resisting the motion for summary dismissal is entitled
to all reasonable ...