Erickstad v. State

¶1Filed 3/15/16 by Clerk of Supreme Court

¶2IN THE SUPREME COURT

¶3STATE OF NORTH DAKOTA

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¶72016 ND 49

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¶11Brian J. Erickstad, Petitioner and Appellant

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¶13v.

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¶15State of North Dakota, Respondent and Appellee

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¶19No. 20150303

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¶23Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable David E. Reich, Judge.

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¶25AFFIRMED.

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¶27Per Curiam.

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¶29Charles A. Stock, P.O. Box 605, Crookston, MN 56716-0605, for petitioner and appellant.

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¶31Julie A. Lawyer, Burleigh County Assistant State’s Attorney, 514 E. Thayer Ave., Bismarck, ND 58501, for respondent and appellee.

¶32Erickstad v. State

¶33No. 20150303

¶34

¶35Per Curiam.

¶36[¶1] Brian Erickstad appealed from a district court order dismissing his application for post-conviction relief .  The district court dismissed Erickstad’s application as untimely under N.D.C.C. § 29-32.1-01(2) because more than two years had passed since Erickstad’s conviction became final.  Erickstad argues the district court erred in dismissing his application because the statute of limitations under N.D.C.C. § 29-

¶3732.1-01(2) does not apply retroactively and only applies prospectively from its effective date of August 1, 2013.  We summarily affirm under N.D.R.App.P. 35.1(a)(7).   Wheeler v. State , 2015 ND 264, ¶ 2, 872 N.W.2d 634; Lehman v. State , 2014 ND 103, ¶ 14, 847 N.W.2d 119.

¶38[¶2] The district court also concluded Erickstad did not prove any exceptions to N.D.C.C. § 29-32.1-01(2). Erickstad argues the newly discovered evidence exception applies under N.D.C.C. § 29-32.1-01(3)(a)(1) because he recently learned of his previous misunderstanding of when he would be eligible for parole.  Erickstad further argues the new interpretation of law exception under N.D.C.C. § 29-32.1-

¶3901(3)(a)(3) applies because his attorney and the presiding judge allegedly did not understand the legal effects of when Erickstad would be eligible for parole.  We summarily affirm under N.D.R.App.P. 35.1(a)(2).

¶40[¶3] Gerald W. VandeWalle, C.J.

¶41Carol Ronning Kapsner

¶42Lisa Fair McEvers

¶43Daniel J. Crothers

¶44Dale V. Sandstrom