               Filed 5/24/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                     STATE OF NORTH DAKOTA


                                  2019 ND 146


Cody Michael Atkins,                                       Petitioner and Appellant

      v.

State of North Dakota,                                   Respondent and Appellee


                                  No. 20180437


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.

      REVERSED AND REMANDED.

      Opinion of the Court by McEvers, Justice.

      Scott O. Diamond, Fargo, ND, for petitioner and appellant; submitted on brief.

      Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for
respondent and appellee; submitted on brief.
                                   Atkins v. State
                                    No. 20180437


       McEvers, Justice.
[¶1]   Cody Michael Atkins appeals from a district court order denying his
application for post-conviction relief. Atkins argues the district court erred by
denying his application before allowing him time to respond in accordance with
N.D.R.Ct. 3.2(a)(2). We reverse the district court order denying Atkins’ application
for post-conviction relief and remand for further proceedings consistent with this
opinion.


                                           I
[¶2]   In March 2015, Atkins pleaded guilty to gross sexual imposition. Following
the imposition of sentence, Atkins appealed the criminal judgment and this Court
affirmed. State v. Atkins, 2016 ND 13, 873 N.W.2d 676. Atkins later filed two
applications for post-conviction relief; one in March of 2016 which was dismissed,
and another in September of 2016 which was dismissed and later affirmed on appeal.
Atkins v. State, 2017 ND 290, 904 N.W.2d 738. Additionally, Atkins filed a motion
to reduce his sentence in July 2017, a motion to dismiss the GSI charge in November
2017, a motion to “vacate” his guilty plea in February 2018, and a motion for a new
trial in March 2018. The district court considered the February 2018 and March 2018
motions constituted a singular third application for post-conviction relief. State v.
Atkins, 2019 ND 145, ¶ 11.
[¶3]   On November 15, 2018, Atkins filed another application for post-conviction
relief, the subject of this appeal, claiming 10 grounds for relief, alleging: (1) he was
presented an unlawful arrest warrant; (2) he made an involuntary or coerced
confession; (3) inconsistent statements made by everyone during the interrogation
process; (4) the prosecution was using false evidence; (5) the sexual assault kit
indicated no signs of injury; (6) law enforcement officers did not knock and announce

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their presence; (7) judicial bias; (8) malicious prosecution; (9) illegal information; and
(10) an illusory plea. On December 3, 2018, the State filed an answer asserting
affirmative defenses of misuse of process and res judicata and moved, under
N.D.R.Ct. 3.2, to dismiss the application. Four days later, on December 7, 2018, the
district court issued an order denying Atkins’ application for post-conviction relief,
concluding Atkins was procedurally barred from raising the claims contained in his
application due to the doctrines of misuse of process and res judicata.


                                            II
[¶4]   When reviewing district court orders on applications for post-conviction relief,
we have stated:
               Post-conviction relief proceedings are civil in nature and
       governed by the North Dakota Rules of Civil Procedure. This Court
       reviews a summary denial of an application for post-conviction relief
       similar to an appeal from a summary judgment. 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.
Delvo v. State, 2010 ND 78, ¶ 10, 782 N.W.2d 72 (internal citations and quotations
omitted). “A petitioner for post-conviction relief has the burden of establishing
grounds for post-conviction relief.” Steen v. State, 2007 ND 123, ¶ 12, 736 N.W.2d
457. We have also recognized two affirmative defenses which result in the denial of
an application:
               An application for post-conviction relief may be denied under
       N.D.C.C. § 29-32.1-12 on grounds of res judicata or misuse of process.
       . . . Post-conviction proceedings are not intended to allow defendants
       multiple opportunities to raise the same or similar issues, and
       defendants who inexcusably fail to raise all of their claims in a single
       post-conviction proceeding misuse the post-conviction process by
       initiating a subsequent application raising issues that could have been
       raised in the earlier proceeding. This Court has explained that
       defendants are not entitled to post-conviction relief when their claims
       are merely variations of previous claims that have been rejected.
Id. at ¶ 13 (internal citations and quotations omitted).
                                            2
                                          III
[¶5]   Rule 3.2, N.D.R.Ct., applies to all motion practices in the absence of a
conflicting governing rule. Desert Partners IV, L.P. v. Benson, 2014 ND 192, ¶ 18,
855 N.W.2d 608. Rule 3.2(a)(2), N.D.R.Ct., provides that a party opposing a motion
“must have 14 days after service of a brief within which to serve and file an answer
brief and other supporting papers.” In Ourada v. State, 2019 ND 10, ¶ 6, 921 N.W.2d
677, we held that once the State responded to an application for post-conviction relief
and the district court treated that response as a motion to dismiss, the applicant was
required to receive notice and an opportunity to be heard prior to dismissal. We relied
on N.D.R.Ct. 3.2 which also provides that notice must accompany a motion. Id. at ¶
5. Unlike the applicant in Ourada, Atkins did receive notice of the State’s motion to
dismiss but was not afforded time to reply. See Chisholm v. State, 2014 ND 125, ¶
18, 848 N.W.2d 703 (petitioner entitled to notice that his application could be
summarily dismissed and an opportunity to file an answer brief).
[¶6]   Here, the State answered Atkins’ application by asserting the defenses of
misuse of process and res judicata, and moved to dismiss. Section 29-32.1-12(3),
N.D.C.C., providing for the affirmative defenses of res judicata and misuse of
process, states:
       Res judicata and misuse of process are affirmative defenses to be
       pleaded by the state. The burden of proof is also upon the state, but, as
       to any ground for relief which, by statute or rule of court, must be
       presented as a defense or objection at a specified stage of a criminal
       prosecution, the applicant shall show good cause for noncompliance
       with the statute or rule.
“A defendant filing a subsequent application for postconviction relief does not misuse
the process if he or she establishes an excuse, such as newly discovered evidence, that
could not have been raised in the first postconviction relief application.” Myers v.
State, 2017 ND 66, ¶ 9, 891 N.W.2d 724; see also Garcia v. State, 2004 ND 81, ¶ 22,
678 N.W.2d 568 (holding misuse of process applies when defendant fails to show an
excuse why his claims could not have been raised in his first application for post-
conviction relief). Because the district court ruled before Atkins had the opportunity

                                          3
to respond to the State’s assertion of affirmative defenses, he could not show good
cause for noncompliance with N.D.C.C. § 29-32.1-12(1) or (2). See 39 Am. Jur. 2d
Habeas Corpus § 186 (2019) (“The government bears the initial burden of pleading
abuse of the writ, after which the post-conviction petitioner bears the burden to
disprove abuse.”). We conclude Atkins should have had 14 days to respond to the
State’s motion to dismiss consistent with N.D.R.Ct. 3.2(a)(2).


                                         IV
[¶7]   Accordingly, we reverse the district court’s order and remand to permit Atkins
to respond to the State’s motion in accordance with N.D.R.Ct. 3.2 (a)(2).
[¶8]   Lisa Fair McEvers
       Daniel J. Crothers
       Jerod E. Tufte
       Gary H. Lee, D.J.
       Gerald W. VandeWalle, C.J.
[¶9]   The Honorable Gary H. Lee, D.J., sitting in place of Jensen, J., disqualified.




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