                  Filed 7/11/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                 2019 ND 188


State of North Dakota,                                     Plaintiff and Appellee

      v.

Dennis Shipton,                                         Defendant and Appellant


                           Nos. 20190040 & 20190041


       Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.

      AFFIRMED.

      Opinion of the Court by VandeWalle, Chief Justice.

        Max W. LaCoursiere, Assistant State’s Attorney, Grand Forks, ND, for
plaintiff and appellee; submitted on brief

      Dennis Shipton, self-represented, Terre Haute, IN, defendant and appellant;
submitted on brief.
                                   State v. Shipton
                            Nos. 20190040 & 20190041


       VandeWalle, Chief Justice.
[¶1]   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.


                                           I
[¶2]   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 evidence.
[¶3]   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.


                                           II
[¶4]   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

                                           1
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.
[¶5]   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. § 29-32.1-01(3)(b).


                                           III
[¶6]   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 discovered evidence.



                                            2
[¶7]   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 and the State did not
err in destroying the files. Without newly discovered evidence, Shipton has failed to
meet his burden for post-conviction relief.


                                           IV
[¶8]   The orders of the district court are affirmed.
[¶9]   Gerald W. VandeWalle, C.J.
       Jon J. Jensen
       Lisa Fair McEvers
       Daniel J. Crothers
       Jerod E. Tufte




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