2022 ND 80 - Moncada v. State

                                                                              FILED
                                                                      IN THE OFFICE OF THE
                                                                   CLERK OF SUPREME COURT
                                                                          APRIL 14, 2022
                                                                    STATE OF NORTH DAKOTA




                 IN THE SUPREME COURT
                 STATE OF NORTH DAKOTA

2022 ND 80


Joseph Daniel Moncada,                             Petitioner and Appellant
     v.
State of North Dakota,                             Respondent and Appellee



                               No. 20210338

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

AFFIRMED.

Per Curiam.

Laura C. Ringsak, Bismarck, N.D., for petitioner and appellant; submitted on
brief.

Carmell F. Mattison, Assistant State’s Attorney, Grand Forks, N.D., for
respondent and appellee; submitted on brief.
                               Moncada v. State
                                No. 20210338

Per Curiam.

[¶1] Joseph Moncada appeals from an order summarily dismissing his
application for postconviction relief. In 2009, Moncada was found guilty of two
counts of murder and two counts of conspiracy to commit murder. On
September 14, 2021, Moncada filed a motion the court treated as an application
for postconviction relief. Because the application was filed more than two years
after his conviction became final, he must establish an exception under
N.D.C.C. § 29-32.1-01(3) to avoid dismissal for untimeliness. Moncada argues
the new interpretation of state law exception is satisfied by our decision in
State v. Swanson,

2019 ND 181

930 N.W.2d 645

, declaring conspiracy to
commit a “knowing” murder as a non-cognizable offense. Moncada requests his
conspiracy to commit murder charges be vacated. Swanson was published on
July 11, 2019. Therefore, we conclude the district court properly dismissed his
application as untimely because Moncada did not file his application for
postconviction relief within two years of the effective date of Swanson. See Hieb
v. State,

2016 ND 146, ¶ 13

882 N.W.2d 724

 (denying relief because petitioner
did not file his application within two years of the effective date of this Court’s
decision in State v. Borner,

2013 ND 141

836 N.W.2d 383

, declaring conspiracy
to commit extreme indifference murder is a non-cognizable offense). We
summarily affirm under N.D.R.App.P. 35.1(a)(7).

[¶2] Jon J. Jensen, C.J.
     Gerald W. VandeWalle
     Daniel J. Crothers
     Lisa Fair McEvers
     Jerod E. Tufte




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