                Filed 7/3/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                 2019 ND 178


James Ryan Burden,                                      Petitioner and Appellant

      v.

State of North Dakota,                                 Respondent and Appellee


                                 No. 20180353


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by VandeWalle, Chief Justice.

      Scott O. Diamond, Fargo, ND, for petitioner and appellant.

      Thomas A. Gehrz (argued), and Meredith H. Larson (on brief), Grand Forks
County State’s Attorney Office, Grand Forks, ND, for respondent and appellee.
                                   Burden v. State
                                    No. 20180353


       VandeWalle, Chief Justice.
[¶1]   James Burden appealed from orders summarily dismissing his application for
post-conviction relief and denying his motion for relief from that dismissal. We
conclude that the district court applied the wrong standard in dismissing Burden’s
application on the pleadings and that he was not given the required time to respond
to a dismissal by summary judgment. We reverse and remand for further proceedings.
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[¶2]   In March 2017, Burden, with assistance of counsel, pled guilty to contributing
to the deprivation of a minor and also admitted the allegations in a separate petition
to revoke his probation for a 2013 conviction for simple assault. The district court
sentenced Burden to a term of incarceration on the criminal charge and on the
probation revocation. After a March 2017 hearing at which Burden was given an
opportunity to address the court, the court refused to reconsider his sentence. In
September 2017, the court denied Burden’s motion to withdraw his guilty plea and
his admission to the probation violation.
[¶3]   In November 2017, Burden filed a self-represented application for post-
conviction relief, claiming ineffective assistance of counsel relating to the guilty plea
and to the probation revocation. In November 2017, the State answered, generally
“den[ying] each and every allegation contained therein,” and “put[ting Burden] to his
proof.” The State’s answer asserted the affirmative defense of misuse of process and
“move[d] for summary disposition” on Burden’s claim for post-conviction relief
under N.D.C.C. § 29-32.1-01(1)(e), which provides that “evidence, not previously
presented and heard, exists requiring vacation of the conviction or sentence in the
interest of justice.”
[¶4]   Burden was appointed counsel, and in February 2018, he filed an amended
application for post-conviction relief, again claiming ineffective assistance of counsel.

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Burden alleged his trial counsel failed to adequately prepare a defense and review
discovery documents with him in the criminal case and failed to obtain and review
discovery in the probation revocation. Burden also alleged his counsel failed to
timely and adequately prepare for trial, only worked for a plea deal in the criminal
case, and failed to apprise him of delays and obtained continuances without notifying
him. Burden further alleged his counsel failed to timely notify him of the details of
the plea agreement and failed to adequately investigate false statements in an affidavit
for an arrest warrant. Burden alleged he was prejudiced by counsel’s representation
and, but for counsel’s errors, he would not have pled guilty and would have insisted
on going to trial. The State filed an amended answer, generally denying Burden’s
allegations and seeking to put him to his proof on each and every allegation not
admitted.
[¶5]   Burden requested a hearing on his application, and the district court scheduled
a hearing for July 23, 2018. On July 5, 2018, the State moved for summary dismissal
of Burden’s application, alleging there were no genuine issues of material fact. The
State argued Burden had been put to his proof and failed to provide any competent
admissible evidence to raise an issue of material fact supporting his conclusory
allegation of ineffective assistance of counsel. The State’s notice of motion under
N.D.R.Ct. 3.2 said oral argument was not requested and the motion would be decided
on the briefs unless oral argument was timely requested.
[¶6]   On July 23, 2018, the district court granted the State’s motion for summary
dismissal without an evidentiary hearing, stating Burden “failed to respond to the
motion,” and “failed to provide competent, admissible evidence to support his
application.”
[¶7]   Burden moved for relief from the summary dismissal under N.D.R.Civ.P. 60
and submitted an accompanying affidavit. Burden’s affidavit described sporadic
meetings with counsel to discuss a defense to the criminal charge and alleged false
and misleading statements in an affidavit of probable cause for the criminal charge.
Burden’s affidavit also said the allegations about two missed probation meetings were

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“unjustified” because he had made up both meetings. Burden claimed he was
apprised of the details of the plea agreement only minutes before signing the
agreement and going into court and his counsel used undue influence to push for
acceptance of the plea deal without giving him time to think about it or to talk to his
family. While Burden’s motion for relief from the summary dismissal was pending,
he appealed the summary dismissal to this Court and we issued a limited remand to
the district court for disposition of his pending motion.
[¶8]   On remand, the district court denied Burden’s motion for relief from the
summary dismissal, stating “he failed to provide competent admissible evidence for
over eight months after being put on notice of the State’s request for summary
dismissal and being ‘placed on his proof.’” The court explained the State’s November
2017 answer was sufficient to put Burden on notice to provide competent admissible
evidence to avoid summary dismissal and he failed to do so before the State’s July 5,
2018 motion for summary dismissal. The court also explained the State’s motion for
summary dismissal did not rely on matters outside the pleadings and the 14-day time
period for response in N.D.R.Ct. 3.2(a)(2) applied to the motion. The court said
Burden failed to respond within 14 days after the State filed its motion for summary
dismissal and failed for eight months to provide any competent admissible evidence
in response to the State’s initial request for summary dismissal in the November 2017
answer. The court concluded the dismissal was an order for summary disposition
based upon the pleadings and denied Burden’s request for relief from the dismissal.
                                          II
[¶9]   Burden argues the district court did not clearly identify whether the summary
dismissal was on only the pleadings or on the entire record, and he argues the court
applied the wrong standard to the extent it dismissed his application on the pleadings.
Burden alternatively argues that if the dismissal was by summary judgment, he was
not provided the required 30 days to respond to a summary judgment motion under
N.D.R.Civ.P. 56. The State responds the court did not err in granting summary
dismissal because Burden was put to his proof in the State’s amended answer. The

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State alternatively argues the court properly granted the summary dismissal within 14
days after the State filed its motion on July 5, 2018, and Burden failed to respond.
[¶10] We have said post-conviction proceedings are civil in nature and the rules and
statutes applicable to civil proceedings are applicable to those proceedings. Atkins v.
State, 2019 ND 146, ¶ 4; Ourada v. State, 2019 ND 10, ¶ 3, 921 N.W.2d 677;
Johnson v. State, 2005 ND 188, ¶ 6, 705 N.W.2d 830; McMorrow v. State, 516
N.W.2d 282, 283 (N.D. 1994); State v. Wilson, 466 N.W.2d 101, 103 (N.D. 1991).
Our rules of civil procedure “govern the procedure in all civil actions and proceedings
in district court, except as stated in Rule 81.” N.D.R.Civ.P. 1.           Rule 81(a),
N.D.R.Civ.P., provides, “Special statutory proceedings, whether or not listed in Table
A, are excluded from these rules to the extent they are inconsistent or in conflict with
the procedure and practice provided by these rules.” Post-conviction proceedings
under N.D.C.C. ch. 29-32.1 are not listed in Table A, and our rules of civil procedure
apply to those proceedings to the extent they are not inconsistent with statutory
requirements for post-conviction proceedings. See Combs v. Lund, 2015 ND 10, ¶ 16,
858 N.W.2d 311 (applying civil rules to disorderly conduct restraining orders).
[¶11] A post-conviction relief proceeding is commenced by filing an application.
N.D.C.C. § 29-32.1-03(1). An applicant for post-conviction relief has the burden of
establishing grounds for relief. Horvath v. State, 2018 ND 24, ¶ 6, 905 N.W.2d 734;
Greywind v. State, 2015 ND 231, ¶ 6, 869 N.W.2d 746. The application must include
certain allegations, but “[a]rgument, citations, and discussion of authorities are
unnecessary” and “[a]ffidavits or other material supporting the application may be
attached, but are unnecessary.” N.D.C.C. § 29-32.1-04(1) and (2). The State shall
respond to an application by answer or motion and may move to dismiss an
application if it is evident from the application that the applicant is not entitled to
post-conviction relief. N.D.C.C. § 29-32.1-06(1) and (2). Res judicata and misuse
of process may be raised by answer or motion. N.D.C.C. § 29-32.1-06(3). See also
N.D.C.C. § 29-32.1-12 (discussing affirmative defenses of res judicata and misuse of
process).

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[¶12] Section 29-32.1-09, N.D.C.C., authorizes summary disposition of an
application for post-conviction relief and provides, in part:
         1.   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. The court also may
              summarily deny a second or successive application for similar
              relief on behalf of the same applicant and may summarily deny
              any application when the issues raised in the application have
              previously been decided by the appellate court in the same case.
              ....
         3.   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.
If the court determines the applicant is not entitled to post-conviction relief, the
court’s order must state whether the decision is based upon the pleadings, is by
summary disposition, or is the result of an evidentiary hearing. N.D.C.C. § 29-32.1-
11(2).
[¶13] In Johnson, 2005 ND 188, ¶ 9, 705 N.W.2d 830, we explained that a motion
by the State for summary disposition under N.D.C.C. § 29-32.1-06(2) is analogous
to a motion to dismiss for failure to state a claim upon which relief may be granted
under N.D.R.Civ.P. 12(b)(6).      We also explained that a motion for summary
disposition by either party under language now found in N.D.C.C. § 29-32.1-09(3) is
analogous to and governed by the procedure for a motion for summary judgment.
Johnson, at ¶¶ 10-12. We said that when a court dismisses an application on its own
motion, it is analogous to dismissal of a complaint for failure to state a claim upon
which relief can be granted under N.D.R.Civ.P. 12(b)(6), and when the State moves
for summary disposition solely on the pleadings, the motion should be treated like a
N.D.R.Civ.P. 12(b) motion subject to the response times in N.D.R.Ct. 3.2(a), which
is now 14 days. See Johnson, at ¶¶ 13-14 (discussing prior version of N.D.R.Ct.
3.2(a) allowing 10 days to respond).       When the State’s motion for summary
disposition goes beyond the pleadings, it is not treated as a N.D.R.Civ.P. 12(b)(6)

                                          5
motion; rather it is treated as a N.D.R.Civ.P. 56 motion for summary judgment, which
gives the petitioner 30 days to respond. Johnson, at ¶¶ 15-17.
[¶14] In Greywind, 2015 ND 231, ¶¶ 7-8, 869 N.W.2d 746 (citations and quotations
omitted), we discussed the difference between a dismissal of an application for failure
to state a claim upon which relief can be granted under N.D.R.Civ.P. 12(b)(6) and a
summary disposition by summary judgment under N.D.R.Civ.P. 56:
       When a dismissal under N.D.R.Civ.P. 12(b)(6) is appealed, this Court
       construes the application in the light most favorable to the applicant and
       accepts the well-pleaded allegations as true. 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.
               When matters outside the pleading are considered, the motion
       must be treated as a motion for summary judgment under N.D.R.Civ.P.
       56. A court may summarily dismiss an application for post-conviction
       relief under N.D.C.C. § 29-32.1-09, which is analogous to summary
       judgment, if there are no genuine issues of material fact and the moving
       party is entitled to judgment as a matter of law. N.D.C.C. § 29-32.1-
       09(1) authorizes the court to dismiss a meritless application considering
       only the information in the application.
[¶15] Under our decisions, a motion for summary disposition relying only on the
pleadings is treated like a motion to dismiss for failure to state a claim upon which
relief can be granted under N.D.R.Civ.P. 12(b)(6), and a motion for summary
disposition relying on items outside the pleadings is treated as a motion for summary
judgment under N.D.R.Civ.P. 56. Greywind, 2015 ND 231, ¶¶ 7-8, 869 N.W.2d 746;
Johnson, 2005 ND 188, ¶¶ 14-15, 705 N.W.2d 830. In considering a motion for
judgment on the pleadings under N.D.R.Civ.P. 12(b)(6), a court must construe the
application in the light most favorable to the applicant and accept the well-pleaded
allegations as true and the court should not grant the motion unless it appears beyond
doubt that applicants can prove no set of facts entitling them to relief. Wong v. State,
2010 ND 219, ¶ 9, 790 N.W.2d 757; Johnson, at ¶ 20.
[¶16] Here, the district court stated it ruled on the pleadings under N.D.R.Civ.P.
12(b), because the State submitted nothing outside the pleadings to support its motion.
We initially review the court’s decision under the standards for N.D.R.Civ.P.

                                           6
12(b)(6). Regardless of whether the State submitted anything outside the pleadings
to support its motion for summary disposition, Burden’s allegations of ineffective
assistance of counsel, construed in the light most favorable to him, state a claim upon
which relief can be granted under N.D.R.Civ.P. 12(b)(6) and do not demonstrate that
it would be impossible for him to prove a claim for ineffective assistance of counsel.
See Wong, 2010 ND 219, ¶ 10, 790 N.W.2d 757. We conclude the court erred to the
extent it summarily dismissed Burden’s application for failure to state a claim upon
which relief could be granted under N.D.R.Civ.P. 12(b)(6).
[¶17] We next consider Burden’s application under the standards for summary
judgment and when he was put to his proof. In Mackey v. State, 2012 ND 159, ¶ 5,
819 N.W.2d 539 (citations and quotations omitted), we discussed a motion for
summary disposition of an ineffective-assistance-of-counsel claim in the context of
putting applicants to their proof under the procedures for summary judgment:
       [A] court may grant a motion for summary disposition if there is no
       genuine issue as to any material fact and the moving party is entitled to
       a judgment as a matter of law. The party opposing the motion for
       summary disposition is entitled to all reasonable inferences at the
       preliminary stages of a post-conviction proceeding and is entitled to an
       evidentiary hearing if a reasonable inference raises a genuine issue of
       material fact. A genuine issue of material fact exists when reasonable
       minds could draw different inferences and conclusions from the
       undisputed facts. The movant initially may satisfy his burden of
       showing there is no genuine issue of material fact by demonstrating an
       absence of evidence supporting the petitioner’s application. At this
       point, the petitioner is put on his proof, and the petitioner may no
       longer rely on unsupported allegations but must produce some
       competent, admissible evidence to show the presence of an issue of
       material fact. Claims of ineffective assistance of counsel are often
       unsuited to summary disposition, but this Court has upheld summary
       denials of post-conviction relief when the applicants were put to their
       proof, and summary disposition occurred after the applicants then failed
       to provide some evidentiary support for their allegations.
[¶18] In Mackey, 2012 ND 159, ¶ 5, 819 N.W.2d 539, we said a petitioner was “put
on his proof” when the movant demonstrates an absence of evidence supporting the
petitioner’s application. In Parizek v. State, 2006 ND 61, ¶ 9, 711 N.W.2d 178

                                          7
(quoting Vandeberg v. State, 2003 ND 71, ¶ 7, 660 N.W.2d 568), in reversing a
summary judgment dismissal of an ineffective-assistance-of-counsel claim, we said
the “State must not merely ‘respond’ to put a petitioner on its proof; it must show the
trial court it is entitled to judgment as a matter of law in its motion for summary
disposition.” In Delvo v. State, 2010 ND 78, ¶ 13, 782 N.W.2d 72, in affirming a
summary judgment on a claim for ineffective assistance of counsel, a majority of this
Court said the petitioner did not dispute that she was put on notice the State was
putting her to her proof in the State’s request for summary disposition in its response
to her application and she failed to supplement her application with affidavits or other
evidence raising an issue of material fact. In Ude v. State, 2009 ND 71, ¶ 12, 764
N.W.2d 419, we affirmed a summary judgment of an ineffective-assistance claim
where a petitioner’s response to the State’s request for summary disposition did not
present affidavits or other supporting materials to raise an issue of material fact. A
common thread in our cases involving summary disposition of claims for ineffective
assistance of counsel is that a request for summary disposition is necessary to put
applicants to their proof.
[¶19] Here, the State argues Burden was put to his proof in the State’s answer and
amended answer. The State’s answer and amended answer denied all of Burden’s
allegations not specifically admitted and generally said the State “puts [him] to his
proof.” The State’s initial answer asserted misuse of process and moved for summary
disposition on Burden’s allegation that “evidence, not previously presented and heard,
exists requiring vacation of the conviction or sentence in the interest of justice.” The
State’s amended answer did not restate that motion nor move for summary disposition
on the ineffective-assistance-of-counsel claim. Instead, the State’s amended answer
denied each and every allegation in Burden’s amended application and generally put
him to his proof. The State’s general allegations in its answer and amended answer
were not sufficient to demonstrate an absence of evidence supporting Burden’s claim
for ineffective assistance of counsel or show the district court that the State was
entitled to judgment as a matter of law on that claim. See Mackey, 2012 ND 159, ¶

                                           8
5, 819 N.W.2d 539 (stating petitioner put to proof when movant demonstrates absence
of evidence supporting petitioner’s application); Parizek, 2006 ND 61, ¶ 9, 711
N.W.2d 78 (same). We conclude Burden was not put to his proof by the State’s
general allegations in its answer or amended answer. Rather, we conclude Burden
was put to his proof when the State filed its motion for summary dismissal on July 5,
2018, which triggered a 30-day period for Burden to respond under N.D.R.Civ.P. 56.
See Johnson, 2005 ND 188, ¶¶ 15-17, 705 N.W.2d 830. To the extent the district
court decided the State’s motion for summary disposition by summary judgment,
Burden was not given 30 days to respond after the State’s July 5, 2018 motion for
summary dismissal, and we reverse and remand for further proceedings consistent
with this opinion.
[¶20] Because Burden’s application should not have been dismissed in the first
instance, we also conclude the district court abused its discretion in denying his
motion for relief from the summary disposition under N.D.R.Civ.P. 60(b). See Riak
v. State, 2015 ND 120, ¶ 19, 863 N.W.2d 894.
                                         III
[¶21] We reverse the orders and remand for further proceedings consistent with this
opinion.
[¶22] Gerald W. VandeWalle, C.J.
       Jerod E. Tufte
       Daniel J. Crothers
       Lisa Fair McEvers
       James D. Hovey, D.J.


[¶23] The Honorable James D. Hovey, D.J., sitting in place of Jensen, J.,
disqualified.




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