Atkins v. North Dakota

December 11, 2017 by Justia

Cody Michael Atkins appealed a district court's order summarily dismissing his application for post-conviction relief. In 2015, Atkins plead guilty to gross sexual imposition and was sentenced to 20 years with the North Dakota Department of Corrections with five years suspended for 10 years and 10 years of supervised probation. Atkins' conviction was affirmed on appeal. In March 2016, Atkins filed a petition for post-conviction relief, alleging ineffective assistance of counsel. In April 2016, the court entered a scheduling order but Atkins failed to timely file a brief and the petition was dismissed. In September 2016, Atkins filed an identical petition for post-conviction relief. In October 2016, the court entered a scheduling order and after being granted an extension, Atkins filed a supplemental brief in March 2017. Atkins' brief included several conclusory statements alleging his counsel was defective and a request for an evidentiary hearing. In April 2017, the State filed a motion and brief in support of summary dismissal. The district court scheduled an evidentiary hearing for June 2017. Atkins failed to respond to the State's motion. Atkins did not file any affidavits or other comparable means of evidence in support of the allegations contained in his brief. On May 5, 2017, the district court granted the motion for summary dismissal. Atkins' supplemental brief listed six ways in which he is entitled to post-conviction relief; Atkins argued the State's failure to refute the factual assertions in his brief relieved him of the burden of producing competent, admissible evidence prior to the evidentiary hearing. Because Atkins was put to his proof when the State moved for summary disposition, and Atkins did not meet his minimal burden of supporting his application with competent, admissible evidence raising an issue of material fact, the North Dakota Supreme Court affirm the district court's order summarily dismissing his application for post-conviction relief. View "Atkins v. North Dakota" on Justia Law