Comes v. State

¶1Filed 6/30/16 by Clerk of Supreme Court

¶2IN THE SUPREME COURT

¶3STATE OF NORTH DAKOTA

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¶72016 ND 118

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¶11Marlon Leon Comes, Petitioner and Appellant

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¶13v.

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¶15State of North Dakota, Respondent and Appellee

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¶19No. 20160056

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¶23Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Donovan John Foughty, Judge.

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¶25AFFFIRMED.

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¶27Per Curiam.

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¶29Mark T. Blumer, P.O. Box 7340, Fargo, ND 58106, for petitioner and appellant; submitted on brief.

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¶31Lonnie Olson, 524 Fourth Ave. N.E., Unit 16, Devils Lake, ND 58301, for respondent and appellee; submitted on brief.

¶32Comes v. State

¶33No. 20160056

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¶35Per Curiam.

¶36[¶1] Marlon Comes appealed from a district court order dismissing his application for post-conviction relief and order denying his motion for reconsideration.  The district court dismissed Comes’ application as untimely under N.D.C.C. § 29-32.1-01(2) because the two-year statute of limitations elapsed on his claim.  Comes argues the newly discovered evidence exception applies under N.D.C.C. § 29-32.1-01(3)(a)(1) because, in September 2014, he received a letter from the North Dakota Parole Board informing him when he is eligible for parole, which was different than explained to him at sentencing.  We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7).  SeeJohnson v. State, 2015 ND 7, ¶ 7, 858 N.W.2d 632 (holding the newly discovered evidence exception does not apply when the content of the letter does not establish petitioner did not engage in criminal conduct for which he was convicted).

¶37[¶2] Gerald W. VandeWalle, C.J.

¶38Lisa Fair McEvers

¶39Daniel J. Crothers

¶40Dale V. Sandstrom

¶41Carol Ronning Kapsner