Atkins v. State

                                                                              IN THE OFFICE OF THE
                                                                           CLERK OF SUPREME COURT
                                                                                   MAY 6, 2021
                                                                            STATE OF NORTH DAKOTA
                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA


2021 ND 83

Cody Michael Atkins,                                Defendant and Appellant
State of North Dakota,                                  Plaintiff and Appellee

                                No. 20200266

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


Opinion of the Court by McEvers, Justice.

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.
                                Atkins v. State
                                 No. 20200266

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.


[¶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, 

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. The State moved
to dismiss the application under N.D.R.Ct. 3.2.

Id. The district court

Atkins’ consolidated applications without giving Atkins an opportunity to

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

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.



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. A hearing was
held, after which the court denied Atkins’ motion.

Id. In July 2020,

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.



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.


[¶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.


[¶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.

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

[¶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, 

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. 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.


[¶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 (quoting State v. Acker, 

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.

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.


[¶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
dismissal of a post-conviction application, like summary judgment, is only
appropriate if there is no genuine issue as to any material fact. Chatman v.

2018 ND 77

, ¶ 6, 

908 N.W.2d 724

. A genuine issue of material fact exists
if reasonable minds could draw different inferences and reach different
conclusions from the undisputed facts.

Id. This Court has

established “[t]he
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.” Atkins v. State, 

2019 ND 146

, ¶ 4, 

928 N.W.2d 438



[¶14] Atkins argues the district court erred in applying res judicata, because
res judicata is an affirmative defense that can only be applied when pleaded
by the State.

[¶15] Atkins is correct, res judicata is an affirmative defense under N.D.C.C. §
29-32.1-12(3) to be pleaded by the State. As provided in N.D.C.C. § 29-32.1-
12(1), “[a]n application for postconviction relief may be denied on the ground

that the same claim or claims were fully and finally determined in a previous
proceeding.” In Johnson v. State, this Court stated this statute does not entitle
a district court to dismiss on a claim of res judicata on its own motion. 

ND 213

, ¶ 10, 

790 N.W.2d 741

. The rationale for not allowing the court to
dismiss on its own motion was because the legislature expressly made res
judicata an affirmative defense.



Here, the district court relied on N.D.C.C. § 29-32.1-12(1) as a legal basis
for dismissal, noting particularly that the statute provides an application may
be denied on the ground that the same claim or claims were fully and finally
determined in a previous proceeding, and then referred to this as res judicata.
The court discussed Atkins’ previous claims and found:

      Atkins’ current post-conviction relief Application to be identical or
      very similar to the issues previously raised, addressed and denied
      by the court (in particular, in Atkins’ post-conviction relief action
      in file 18-2014-CR-1844, the dismissal of which was affirmed by
      our Supreme Court), and Atkins’ other previous and subsequent
      post-conviction relief efforts. Therefore res judicata applies to his
      present claims which were previously raised and addressed.

[¶17] In Chisholm, 

2014 ND 125

, ¶ 13, we noted that the legislature amended
N.D.C.C. § 29-32.1-09, which now expressly allows a court to dismiss an
application on its own motion for various reasons. The second sentence of
N.D.C.C. § 29-32.1-09(1) authorizes the court to summarily deny a second or
successive application for similar relief on behalf of the same applicant or
summarily deny an application when the issues raised have previously been
decided by this court on appeal.

Id. at ¶ 16.

This section provides:

      The court, on its own motion, may enter a judgment denying a
      meritless application on any and all issues raised in the
      application before any response by the state. The court also may
      summarily deny a second or successive application for similar relief
      on behalf of the same applicant and may summarily deny any
      application when the issues raised in the application have
      previously been decided by the appellate court in the same case.

N.D.C.C. § 29-32.1-09(1) (emphasis added). When the district court used the
term “res judicata,” it should have referred to the authority granted under
N.D.C.C. § 29-32.1-09(1), rather than the affirmative defense statute. We will
not set aside a district court’s decision applying an incorrect reason, if the
result would be the same under the correct law and reasoning. Myers v. State,

2017 ND 66

, ¶ 10, 

891 N.W.2d 724


[¶18] Nevertheless, the plain text of N.D.C.C. § 29-32.1-09(1) provides two
paths for the district court to summarily dismiss an application for post-
conviction relief. First, the court may dismiss a meritless application before the
State responds. Second, the court may summarily dismiss a second or
successive application for similar relief on behalf of the same applicant when
the issues raised have previously been decided by the appellate court in the
same case. On its face, this indicates the legislature intended the court to be
able to look beyond the pleadings of the instant post-conviction application,
because it would be impossible to determine if the current application was
successive without referencing other proceedings initiated by the same
applicant. It also expressly provided for summary denial of second or
successive applications for similar relief or for issues which have been decided
by this Court.

[¶19] In addition, it has been recognized that sua sponte application of res
judicata may be appropriate in special circumstances; most notably, when a
court is on notice that it has previously decided the issue presented, the action
may be dismissed even though the defense was not raised. Arizona v.

530 U.S. 392

, 412 (2000). “This result is fully consistent with the
policies underlying res judicata: it is not based solely on the defendant’s
interest in avoiding the burdens of twice defending a suit, but is also based on
the avoidance of unnecessary judicial waste.”

Id. (citation omitted).


Unlike the applicant in Chisholm, Atkins has brought repeated
applications for relief on the same or similar grounds for the same underlying
conviction. The plain text of N.D.C.C. § 29-32.1-09(1), expressly allows the
district court to consider whether an application for relief is successive, and
upon determining it is, to summarily dismiss. The court reached the correct

result applying the doctrine of res judicata prior to the State responding, but
for the wrong reason.


[¶21] Atkins argues the district court erred by failing to consider his claim of
actual innocence. Atkins asserts two bases for asserting this claim. First,
Atkins relies on a United States Supreme Court case, Schlup v. Delo, which
established a new burden of proof for consideration of the merits of federal
constitutional claims made by a federal habeas corpus petitioner sentenced to

513 U.S. 298

(1995). The Schlup Court rejected the more exacting
Sawyer standard that required a petitioner to show “by clear and convincing
evidence that, but for a constitutional error, no reasonable juror would have
found the petitioner eligible for the death penalty.”

Id. at 323.

However, Schlup
was overturned by Congress, which reverted to the Sawyer standard when it
enacted 28 U.S.C.S. §§ 2244(b)(2)(B) and 2254(e)(2).

[¶22] Atkins is not a federal habeas corpus petitioner, and Schlup, even if it
still represented good law, is inapplicable to this post-conviction relief action.
In addition, this Court has noted the United States Supreme Court in Schlup,
“has rejected repeated post-conviction claims, in the form of habeas corpus,
when the matters could have been raised in earlier post-conviction
proceedings.” Owens v. State, 

2001 ND 15

, ¶ 23, 

621 N.W.2d 566

that Schlup at 318-19 noted successive or abusive petitions for habeas corpus
are generally precluded from review).

[¶23] Atkins also argues that the actual innocence exception may be found in
N.D.C.C. § 29-32.1-01(3)(a)(1), which provides a person convicted and
sentenced for a crime may apply for post-conviction relief on the ground that:

      The petition alleges the existence of newly discovered evidence,
      including DNA evidence, which if proved and reviewed in light of
      the evidence as a whole, would establish that the petitioner did not
      engage in the criminal conduct for which the petitioner was

Atkins has previously brought claims for post-conviction relief using this
particular provision when alleging newly discovered evidence. See State v.

2019 ND 145

, ¶ 8, 

928 N.W.2d 441

(in which Atkins alleged the
existence of newly discovered evidence including: (1) text messages; (2) a
sexual assault kit; (3) the credibility of the State’s witnesses; and (4) evidence
tampering by the state). The district court found Atkins’ claims did not meet
the four-part test to qualify as newly discovered evidence.

Id. Atkins appealed,

we affirmed.

Id. at ¶ 25.


Atkins does not allege any newly discovered evidence in his “actual
innocence claim” in his application for relief. It appears that Atkins is either
attempting to bring what is functionally a successive application for post-
conviction relief based on a previously rejected claim and calling it by another
name, or he is invoking an exception that this Court does not recognize.

[¶25] The district court interpreted this argument as a claim of newly
discovered evidence, finding “Atkins’ possible claim of newly discovered
evidence fails” because his supporting grounds could not constitute newly
discovered evidence as they “have been or reasonably could have been
addressed in prior post-conviction relief actions.” By failing to allege in his
application that he had newly discovered evidence, Atkins fails to raise a
genuine issue of material fact. While Atkins’ previous claims regarding newly
discovered evidence were not specifically designated as claims of “actual
innocence,” it would be form over substance to reverse this case to give Atkins
the opportunity to support this claim when he has been given that opportunity
in previous post-conviction relief applications, and justice does not require he
be given another opportunity to do so.

[¶26] We need not address whether the district court’s alternative grounds
for dismissal were in error, because the district court did not err in
concluding Atkins’ claims have been presented in previous petitions, or have
been previously decided by this Court, and are barred by res judicata. We
have considered other issues raised and conclude they are unnecessary to our
opinion or are without merit.


[¶27] We affirm the district court order denying Atkins’ application for post-
conviction relief.

[¶28] Daniel J. Crothers, Acting C.J.
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jerod E. Tufte
      Daniel S. El-Dweek, D.J.

[¶29] The Honorable Daniel S. El-Dweek, D.J., sitting in place of Jensen, C.J.,


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