FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JULY 19, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 136
Darrell Redpaint,
a/k/a Darrell Red Paint, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20230042
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant;
submitted on brief.
Brian D. Grosinger, State’s Attorney, Rolla, N.D., for respondent and appellee;
submitted on brief.
Redpaint v. State
No. 20230042
Tufte, Justice.
[¶1] Darrell Redpaint appeals from an order summarily denying his
application for postconviction relief. We affirm, concluding the State timely
asserted its affirmative defense and moved for summary judgment, the district
court did not abuse its discretion by continuing the hearing on the application,
and the court did not err in summarily denying the application under the
statute of limitations.
I
[¶2] In 1981, Redpaint was convicted of two counts of murder. The judgment
of conviction was affirmed on direct appeal. State v. Red Paint, 311 N.W.2d 182
(N.D. 1981). Redpaint applied for postconviction relief at least eight times prior
to his current application. See Case Nos. 08-97-C-2182, 08-99-C-1261; Red
Paint v. State,
2002 ND 27,
639 N.W.2d 503; Clifford v. O’Donnell,
2005 ND 27,
694 N.W.2d 22; Clifford v. Redmann,
2006 ND 93,
719 N.W.2d 384; Clifford v.
State,
2009 ND 64,
767 N.W.2d 529; Case Nos. 40-2016-CV-74, 40-2017-CV-70.
All of these applications were either dismissed or denied by the district court
and affirmed or dismissed by this Court when appealed, except for Case No.
40-2017-CV-70, where the district court granted the application in part,
clarifying that the life sentences previously imposed included the possibility of
parole.
[¶3] In May 2022, Redpaint once again applied for postconviction relief,
alleging the court in his underlying criminal case lacked jurisdiction because
he was a juvenile at the time of the crimes. The State answered, alleging his
juvenile status did not preclude his convictions and the application was barred
by the statute of limitations and res judicata. A hearing on the application was
set. Prior to the hearing, the State filed a “Hearing Brief” informing the court
that it would request leave to move for summary judgment. At the hearing, the
court granted the State’s request for leave to file a motion for summary
judgment and continued the hearing on the application until after a ruling on
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the motion. The State moved for summary judgment, arguing the application
was barred by the statute of limitations and lacked genuine issues of material
fact. Redpaint opposed the motion, arguing an evidentiary hearing is necessary
because there are genuine issues of material fact as to whether Redpaint
received effective assistance of trial counsel and notice of the hearing
transferring him from juvenile court in his underlying criminal case. The court
granted the State’s motion for summary judgment and summarily denied
Redpaint’s application, concluding the application was untimely and barred by
res judicata and misuse of process and there were no genuine issues of material
fact.
II
[¶4] Our standard of review for a summary denial of an application for
postconviction relief is well-established:
Postconviction relief is governed by N.D.C.C. ch. 29-32.1. Postconviction relief proceedings are civil in nature and governed by
the North Dakota Rules of Civil Procedure. On appeal from a
postconviction proceeding, questions of law are fully reviewable. A
district court may summarily dismiss an application for
postconviction relief if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law.
We review an appeal from summary denial of postconviction relief
as we would review an appeal from a summary judgment. The
party opposing the motion for summary dismissal is entitled to all
reasonable inferences to be drawn from the evidence and is
entitled to an evidentiary hearing if a reasonable inference raises
a genuine issue of material fact.
Wacht v. State, 2015 ND 154, ¶ 6,
864 N.W.2d 740 (cleaned up).
III
[¶5] Redpaint argues the district court erred in allowing the State to move for
summary judgment “after the time for raising affirmative defenses had
expired.” “In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense, including: . . . statute of limitations.”
N.D.R.Civ.P. 8(c)(1). “Unless another time is specified by this rule or a statute,
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the time for serving a responsive pleading is: (A) a defendant must serve an
answer within 21 days after being served with the summons and complaint.”
N.D.R.Civ.P. 12(a)(1)(A) (emphasis added). Under N.D.C.C. § 29-32.1-06(1), the
State has 30 days from the docketing of an application to respond by answer
or motion. The State timely answered the application by filing its answer 16
days after the application was docketed and pled the statute of limitations
defense within its answer.
[¶6] Under N.D.R.Civ.P. 56(b), the party against whom relief is sought may
move for summary judgment “at any time.” But, the motion “must be filed at
least 90 days before the day set for trial and 45 days before the day set for the
hearing unless otherwise ordered.” N.D.R.Civ.P. 56(c)(1). The evidentiary
hearing on the application was continued until such a time after the court ruled
on the State’s forthcoming summary judgment motion. A hearing on the
summary judgment motion was not set in this case. See Hoffman v. Hoffman,
2023 ND 18, ¶ 15,
985 N.W.2d 683 (requiring a party to request and secure a
time for a hearing under N.D.R.Ct. 3.2(a)(3)). Thus, in accordance with the
rules for motion practice, the State timely moved for summary judgment. In
its brief supporting summary judgment, the State argued Redpaint’s
application was barred by the statute of limitations.
[¶7] Redpaint further contends the district court abused its discretion by
continuing the evidentiary hearing on the application. He fails, however, to
argue how the court abused its discretion. At the hearing, Redpaint through
his attorney stated he was not objecting to the grant of leave to file the
summary judgment motion and in fact agreed with continuing the evidentiary
hearing. Therefore, the court did not abuse its discretion by continuing the
evidentiary hearing on the application.
IV
[¶8] Redpaint argues the district court erred in summarily denying his
application. The court concluded Redpaint’s application was untimely. Under
N.D.C.C. § 29-32.1-01(2), an application for postconviction relief must be filed
within two years after the conviction becomes final. The only exceptions
include newly discovered evidence, delay due to physical disability or mental
3
disease, or newly interpreted law retroactively applicable. N.D.C.C. § 29-32.1-
01(3)(a). Redpaint’s application was filed over 40 years after his conviction
became final, and he did not allege or argue that one of the exceptions applies.
Thus, the application is barred by the statute of limitations.
V
[¶9] We affirm the order summarily denying the application for
postconviction relief.
[¶10] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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