              Filed 06/02/2020 by Clerk of Supreme Court

                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

                                2020 ND 117

Bradley Joe Morales,                                Petitioner and Appellant
     v.
State of North Dakota,                              Respondent and Appellee



                               No. 20200019

Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Bradley J. Morales, Minot, ND, petitioner and appellant; submitted on brief.

Rozanna C. Larson, State’s Attorney, Minot, ND, for respondent and appellee;
submitted on brief.
                              Morales v. State
                               No. 20200019

McEvers, Justice.

[¶1] Bradley Morales appeals from a district court order dismissing his
application for post-conviction relief. We affirm.

                                       I

[¶2] Bradley Morales was charged with murder and found guilty by a jury. A
criminal judgment was entered in September 2018. In July 2019, this Court
reversed the judgment and remanded for a new trial. State v. Morales, 2019
ND 206, 932 N.W.2d 106. In December 2019, Morales filed an application for
post-conviction relief. At the time Morales filed his application for post-
conviction relief, a new trial date had not been scheduled. The State moved for
summary disposition under N.D.C.C. § 29-32.1-09, arguing post-conviction
relief was not permitted because the conviction was reversed and remanded.
The district court dismissed Morales’ application for post-conviction relief.

                                      II

[¶3] On appeal, Morales argues he was denied due process and the district
court abused its discretion by dismissing his application because he should
have been permitted an evidentiary hearing to argue he received ineffective
assistance of counsel in his criminal trial.

            The Uniform Post-Conviction Procedure Act authorizes
      summary disposition only 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.” N.D.C.C. § 29-32.1-09(1). We review an appeal
      from a summary denial of post-conviction relief like we review an
      appeal from a summary judgment.

DeCoteau v. State, 1998 ND 199, ¶ 4, 586 N.W.2d 156. “If the State moves for
summary dismissal, putting a petitioner to his proof, a minimal burden shifts
to the petitioner to support his application with admissible evidence, by
affidavit or other comparable means, to raise a genuine issue of material fact.”
Overlie v. State, 2011 ND 191, ¶ 7, 804 N.W.2d 50.

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[¶4] Section 29-32.1-01(1), N.D.C.C., provides “[a] person who has been
convicted of and sentenced for a crime may institute a proceeding applying for
relief under this chapter.” “An appellate reversal vacates the judgment so that
the parties are placed in the same position as before entry of the judgment.”
Mahoney v. Mahoney, 1997 ND 149, ¶ 36, 567 N.W.2d 206.

[¶5] Morales had the burden of proof and cannot meet his burden. Morales
acknowledges his criminal judgment was reversed and remanded, but
maintains he received ineffective assistance of counsel during his criminal
trial. At this point, because the judgment was reversed and remanded, and a
new trial has not occurred, Morales has not been convicted of a crime. As a
matter of law, Morales is not entitled to post-conviction relief as he does not
meet the requirements of N.D.C.C. § 29-32.1-01. The district court did not err
in dismissing the application.

[¶6] Other arguments made by Morales are unnecessary to this opinion or
are without merit. We affirm the district court order.

[¶7]    Lisa Fair McEvers
       Gerald W. VandeWalle
       Jerod E. Tufte
       Daniel J. Crothers
       Jon J. Jensen, C.J.




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