Atkins v. State

• Decision Date: 06 May 2021
• Docket Number: No. 20200266,20200266
• Citation: 959 N.W.2d 588
• Parties: Cody Michael ATKINS, Defendant and Appellant v. STATE of North Dakota, Plaintiff and Appellee
• Court: North Dakota Supreme Court

959 N.W.2d 588

Cody Michael ATKINS, Defendant and Appellant

v.STATE of North Dakota, Plaintiff and Appellee

No. 20200266

Supreme Court of North Dakota.

FILED MAY 6, 2021

Rehearing Denied June 24, 2021

Benjamin C. Pulkrabek, Mandan, ND, for defendant and appellant; submitted on brief.

Meredith H. Larson, Assistant State's Attorney, Grand Forks, ND, for plaintiff and appellee; submitted on brief.

McEvers, Justice.

[¶1] Cody Michael Atkins appeals from an order summarily dismissing his application for post-conviction relief sua sponte. Atkins argues the district court erred by failing to give him notice prior to dismissal, applying affirmative defenses not raised by the State, and by failing to address his actual innocence argument. We affirm.

I

[¶2] Atkins has a lengthy history of proceedings before the district court and this Court, as we have recently summarized:

Atkins pleaded guilty to gross sexual imposition in 2015. This Court affirmed Atkins's criminal judgment. State v. Atkins , 2016 ND 13, ¶ 10, 873 N.W.2d 676. Atkins filed a post-conviction relief application in March 2016 that was dismissed. He filed another application in September 2016, which was dismissed and affirmed on appeal. Atkins v. State , 2017 ND 290, ¶ 11, 904 N.W.2d 738. Atkins also file post-judgment motions in his criminal case: 1) in July 2017 to reduce his sentence; 2) in November 2017 to dismiss the GSI charge; 3) in February 2018 to "vacate" his guilty plea; and 4) in March 2018 for a new trial. The district court treated the February 2018 and March 2018 motions as a third application for post-conviction relief. We agreed Atkins's motions were an application for post-conviction relief and affirmed the court's denial of Atkins's requests. State v. Atkins , 2019 ND 145, ¶¶ 11, 25, 928 N.W.2d 441.

Atkins v. State , 2021 ND 34, ¶ 2, 955 N.W.2d 109.

[¶3] In November 2018, Atkins filed another application for post-conviction relief, raising 10 grounds for relief. Atkins, 2021 ND 34, ¶ 3, 955 N.W.2d 109. The State moved to dismiss the application under N.D.R.Ct. 3.2. Id. The district court denied Atkins’ consolidated applications without giving Atkins an opportunity to respond. Id. Atkins appealed, and this Court reversed and remanded, concluding Atkins should have been afforded 14 days under N.D.R.Ct. 3.2 to respond to the State's motion to dismiss. Id. On remand, Atkins abandoned some of his claims, but preserved claims of ineffective assistance of post-conviction counsel, coerced confession, knock and announce violation by law enforcement, and malicious prosecution and was given a hearing. Id. at ¶ 4. The district court denied his application on the bases of misuse of process and res judicata. Id.

[¶4] In January 2020, Atkins filed a N.D.R.Civ.P. 60(b) motion requesting the district court reconsider its decision. Atkins, 2021 ND 34, ¶ 5, 955 N.W.2d 109. A hearing was held, after which the court denied Atkins’ motion. Id. In July 2020, Atkins appealed from both the order denying his last post-conviction relief application and the order denying his Rule 60(b). Id. On appeal, this Court concluded Atkins’ appeal from the order denying his application for post-conviction relief from the order was untimely. Id. at ¶ 9. However, we considered the appeal of his Rule(60)(b), which was timely, treating the motion as another post-conviction application. Id. We concluded that Atkins’ claims related to ineffective assistance of counsel had been raised in earlier proceedings, he was precluded from claiming ineffective assistance of post-conviction counsel, and his remaining arguments were without merit. Id. at ¶¶ 11 -12. Accordingly, we affirmed the district court's denial of Atkins’ post-conviction relief application titled as a Rule 60(b) motion for reconsideration. Id.

[¶5] While his aforementioned appeal was pending, Atkins filed another application for post-conviction relief on September 17, 2020, which is the subject of this appeal. Atkins claimed five grounds for post-conviction relief: (1) actual innocence; (2) the State committed a Brady violation by withholding a statement made by a witness; (3) Atkins never acknowledged he understood the right against self-incrimination; (4) his confession was coerced because he is cognitively impaired and police used "aggressive questioning" tactics; and (5) he did not knowingly, voluntarily, or intelligently enter his guilty plea.

[¶6] On September 29, 2020, before the State filed an answer, the district court summarily dismissed Atkins’ application on the basis that he was procedurally barred from raising the claims outlined in his application by the doctrines of misuse of process and res judicata, and because Atkins’ claims were outside the two year statute of limitations for post-conviction relief applications under N.D.C.C. § 29-32.1-01.

II

[¶7] Atkins argues the district court erred when it summarily dismissed his application for relief without affording him notice and an opportunity to support his application.

A

[¶8] Under N.D.C.C. § 29-32.1-09(1), the district court may summarily dismiss a meritless application sua sponte before the State responds. State v. Vogt , 2019 ND 236, ¶ 8, 933 N.W.2d 916. Under N.D.C.C. § 29-32.1-09(1), the district court may also summarily deny a second or successive application for similar relief on behalf of the same applicant, or if the issues raised in the application have previously been decided by the appellate court in the same case. Gonzalez v. State , 2019 ND 47, ¶ 9, 923 N.W.2d 143. In this case, the district court summarily dismissed Atkins’ application before the State responded.

[¶9] This Court has explained that summary dismissal of an application before the State responds "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 (citation omitted). The standard of review for a Rule 12(b)(6) dismissal is well established:

On appeal from a dismissal under N.D.R.Civ.P. 12(b)(6), we construe the complaint in the light most favorable to the plaintiff and accept as true the well-pleaded allegations in the complaint. A district court's decision granting a Rule 12(b)(6) motion to dismiss a complaint will be affirmed if we cannot discern a potential for proof to support it. We review a district court's decision granting a motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo on appeal.

Curtiss v. State , 2020 ND 256, ¶ 4, 952 N.W.2d 43 (citation omitted). In Chisholm v. State , this Court stated, "[w]hen the court considered matters outside the pleading in summarily dismissing an application on its own motion, we have treated the court's summary dismissal as a summary judgment and held the procedural requirements apply." 2014 ND 125, ¶ 12, 848 N.W.2d 703.

[¶10] It is clear from the district court's order that the court relied on the record and its extensive knowledge of Atkins’ case and prior post-conviction applications in denying this application, because it expressly referenced Atkins’ prior applications, prior district court orders, and outcomes from prior appeals. Under N.D.R.Ev. 201(b), a court may judicially notice a fact not subject to reasonable dispute if it "is generally known within the trial court's territorial jurisdiction," or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." A court "may take judicial notice on its own." N.D.R.Ev. 201(c)(1). See also Steen v. State , 2007 ND 123 ¶ 23, 736 N.W.2d 457 (discussing the district court taking judicial notice of prior applications for post-conviction relief considered by the district court and this Court). While it is not error for the court to take notice of Atkins’ previous filings, in doing so it requires we consider the court's dismissal under a summary judgment standard of review. Chisholm , 2014 ND 125, ¶ 12, 848 N.W.2d 703. In Chisholm , we held an applicant must be given notice and an opportunity to respond and submit evidence to demonstrate there is a genuine issue of material fact before the court may dismiss an application. Id. The court erred in dismissing Atkins’ application without giving him notice.

B

[¶11] The next step is to determine whether the error is harmless. This Court defines harmless error as "any error, defect, irregularity or variance which does not affect substantial rights. Stated simply, harmless error is error that is not prejudicial." Gonzalez , 2019 ND 47, ¶ 14, 923 N.W.2d 143 (quoting State v. Acker , 2015 ND 278, ¶ 12, 871 N.W.2d 603 ). "The failure of the court to provide notice can be excused if the error was harmless under the circumstances." Jaste v. Gailfus, 2004 ND 94, ¶ 13, 679 N.W.2d 257 (citing James Wm. Moore, Moore's Federal Rules Pamphlet § 56.4[2] (2004)). "If a party had no additional evidence to bring, it cannot argue it was prejudiced by a lack of notice and opportunity to address the issue." Id. ; see also Smith v. Boyd , 945 F.2d 1041, 1043 (8th Cir. 1991) (holding failure by court to give notice was not reversible error where it is patently obvious the litigant could not prevail on the facts alleged).

[¶12] On appeal, Atkins argues the district court erred, including that he should have been allowed to present evidence under his theory of "actual innocence." Atkins’ application for post-conviction relief makes no mention of newly discovered evidence. He alleges in ground 1: "Actual Innocence exception—This is an exception that would allow Atkins to bring Constutional [sic] claims forward." Without even alleging he had new evidence, Atkins fails to show he was prejudiced by lack of notice.

III

[¶13] The question remains whether the district court erred in dismissing Atkins’ application. Whether summary judgment was properly granted is a question of law which this Court reviews de novo on the entire record. Young v. Burleigh Morton Det. Ctr. , 2021 ND 8, ¶ 4, 953 N.W.2d 597. Summary...