FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
FEBRUARY 8, 2024
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 19
George Robert Lyons, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20230151
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable John A. Thelen, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Eric P. Baumann, Minot, ND, for petitioner and appellant.
Rachel R. Egstad, Assistant State’s Attorney, Grand Forks, ND, for respondent
and appellee.
Lyons v. State
No. 20230151
Crothers, Justice.
[¶1] George Lyons appeals from a district court order dismissing his
application for postconviction relief. Lyons’ application was filed more than two
years after his conviction became final and therefore is untimely under
N.D.C.C. § 29-32.1-01. We affirm the dismissal order.
I
[¶2] The State charged Lyons with gross sexual imposition in 2017. A jury
found him guilty, and we affirmed the conviction. See State v. Lyons, 2019 ND
175,
930 N.W.2d 156. We also affirmed the district court’s denial of Lyons’
subsequent application for postconviction relief based on a claim of ineffective
assistance of counsel. See Lyons v. State,
2021 ND 91,
959 N.W.2d 882.
[¶3] Lyons filed this second application for postconviction relief in 2022. He
claimed newly discovered evidence exists based on a statement the victim’s
mother made during an interview with law enforcement. He also argued his
conviction is barred by a statute of limitations for gross sexual imposition, and
consequently the district court lacked jurisdiction to enter the criminal
judgment. The State moved for summary disposition asserting the charge was
timely and discovery filings from Lyons’ criminal case proved the mother’s
interview and statement were known at the time of trial.
[¶4] The district court conducted an evidentiary hearing before ruling on the
State’s motion. After the hearing, the court entered a dismissal order. The court
ruled Lyons did not establish the existence of newly discovered evidence and
his application was filed outside the statutory two-year filing deadline. Despite
the court’s ruling, it nonetheless addressed Lyons’ argument concerning the
statute of limitations for gross sexual imposition and determined it was
without merit. Lyons appeals.
1
II
[¶5] Lyons concedes his application was filed more than two years after the
postconviction relief filing deadline. He argues the filing deadline does not
apply to his application because his argument concerning the statute of
limitations for gross sexual imposition is a jurisdictional issue that can be
raised at any time. Alternatively, if the filing deadline is applicable, Lyons
asserts an exception applies for newly discovered evidence.
[¶6] Postconviction relief proceedings are civil in nature. Burden v. State,
2019 ND 178, ¶ 10,
930 N.W.2d 619. The laws and rules applicable to civil
proceedings apply to the extent they are not inconsistent with the statutory
requirements for postconviction relief proceedings,
id., which are set out in the
Uniform Postconviction Procedure Act, N.D.C.C. ch. 29-32.1. Postconviction
relief is available when:
“a. The conviction was obtained or the sentence was imposed in
violation of the laws or the Constitution of the United States or of
the laws or Constitution of North Dakota;
b. The conviction was obtained under a statute that is in violation
of the Constitution of the United States or the Constitution of
North Dakota, or that the conduct for which the applicant was
prosecuted is constitutionally protected;
c. The court that rendered the judgment of conviction and sentence
was without jurisdiction over the person of the applicant or the
subject matter;
d. The sentence is not authorized by law;
e. Evidence, not previously presented and heard, exists requiring
vacation of the conviction or sentence in the interest of justice;
f. A significant change in substantive or procedural law has
occurred which, in the interest of justice, should be applied
retrospectively;
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g. The sentence has expired, probation or parole or conditional
release was unlawfully revoked, or the applicant is otherwise
unlawfully in custody or restrained; or
h. The conviction or sentence is otherwise subject to collateral
attack upon any ground of alleged error available before July 1,
1985, under any common law, statutory or other writ, motion,
proceeding, or remedy.”
N.D.C.C. § 29-32.1-01(1).
[¶7] Under N.D.C.C. § 29-32.1-01(2), a petition for postconviction relief must
be filed within two years of a final conviction. Section 29-32.1-01(3)(a),
N.D.C.C., provides three exceptions to the two-year deadline, allowing the
district court to consider an application for relief when:
“(1) 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 convicted;
(2) The petitioner establishes that the petitioner suffered from a
physical disability or mental disease that precluded timely
assertion of the application for relief; or
(3) The petitioner asserts a new interpretation of federal or state
constitutional or statutory law by either the United States
supreme court or a North Dakota appellate court and the
petitioner establishes that the interpretation is retroactively
applicable to the petitioner’s case.”
[¶8] Our standard for reviewing a district court’s decision in a postconviction
relief proceeding is well established:
“‘A trial court’s findings of fact in a post-conviction proceeding will
not be disturbed on appeal unless clearly erroneous under
N.D.R.Civ.P. 52(a). A finding is clearly erroneous if it is induced by
an erroneous view of the law, if it is not supported by any evidence,
or if, although there is some evidence to support it, a reviewing
3
court is left with a definite and firm conviction a mistake has been
made. Questions of law are fully reviewable on appeal of a post-conviction proceeding.’”
Hunter v. State, 2020 ND 224, ¶ 11,
949 N.W.2d 841 (quoting Brewer v. State,
2019 ND 69, ¶ 4,
924 N.W.2d 87).
A
[¶9] Lyons argues his gross sexual imposition charge was barred by a statute
of limitations. He asserts this issue concerns a “jurisdictional fact” which, if
decided in his favor, would bar his conviction. He argues jurisdictional issues
can be raised at any time and thus his application for postconviction relief is
not subject to the two-year deadline.
[¶10] Lyons relies on State v. Hersch, 445 N.W.2d 626, 629-30 (N.D. 1989),
where this Court decided a criminal defendant did not waive a statute of
limitations defense by failing to raise it in the district court because “the
statute of limitations in a criminal case is a jurisdictional fact which creates a
bar to prosecution.” The question in Hersch was whether a jurisdictional
argument could be waived on direct appeal in a criminal case. Unlike Hersch,
this is a civil postconviction relief proceeding collaterally challenging the
criminal judgment. Lyons’ application expressly seeks relief under the Uniform
Postconviction Procedure Act. To obtain relief under the Act, Lyons must
satisfy the Act’s requirements.
[¶11] The Act provides a remedy for convictions obtained without jurisdiction,
see N.D.C.C. § 29-32.1-01(1)(c), but the remedy is conditioned on the claim
being brought within two years of the conviction becoming final. See N.D.C.C.
§ 29-32.1-01(2). Lyons’ application was not filed within two years of his
conviction becoming final. Although the Act provides exceptions to the filing
deadline for other types of claims, no exception exists for claims challenging
the district court’s jurisdiction. Lyons’ claim concerning the statute of
limitations for gross sexual imposition therefore is untimely.
4
B
[¶12] Lyons alternatively claims the newly discovered evidence exception to
the two-year deadline applies. Lyons argues the victim’s mother made a
statement indicating her daughter displayed no emotion during an interview
with law enforcement and indicating the allegations against Lyons could not
be substantiated. Lyons argues his own “allegations tend to strongly indicate”
the interview and statement were not available to his trial counsel. He asserts
there is a genuine issue of material fact as to whether newly discovered
evidence exists, and he seeks remand for an evidentiary hearing.
[¶13] A petitioner must satisfy a four-prong test to establish grounds for
postconviction relief based on newly discovered evidence:
“(1) the evidence was discovered after trial, (2) the failure to learn
about the evidence at the time of trial was not the result of the
defendant’s lack of diligence, (3) the newly discovered evidence is
material to the issues at trial, and (4) the weight and quality of the
newly discovered evidence would likely result in an acquittal.”
Kovalevich v. State, 2018 ND 184, ¶ 5,
915 N.W.2d 644 (quoting Greywind v.
State,
2004 ND 213, ¶ 18,
689 N.W.2d 390).
[¶14] After an applicant for postconviction relief is put to his proof, he must
support his application with competent admissible evidence to obtain an
evidentiary hearing:
“‘A petitioner is not required to provide evidentiary support for his
petition until he has been given notice he is being put on his proof.
At that point, the petitioner may not merely rely on the pleadings
or on unsupported, conclusory allegations, but must present
competent admissible evidence by affidavit or other comparable
means which raises an issue of material fact. If the petitioner
presents competent evidence, he is then entitled to an evidentiary
hearing to fully present that evidence.’”
Chatman v. State, 2018 ND 77, ¶ 6,
908 N.W.2d 724 (quoting Ude v. State,
2009
ND 71, ¶ 8,
764 N.W.2d 419).
5
[¶15] The State moved for summary disposition and submitted discovery from
Lyons’ criminal case that referenced statements the victim’s mother made
during the interview. Lyons filed a brief requesting the State’s motion be
denied, but he did not identify any evidence rebutting the State’s filings or
creating a fact issue about whether the discovery filings were not provided to
his trial counsel. The district court nonetheless held a hearing where Lyons
argued there was not “clear evidence” the interview was known at trial, but
“based on the statements made to me by my client” concerning the evidence
“we believe the first prong is met.” After the hearing, the district court entered
a dismissal order finding the State’s discovery filings from Lyons’ criminal case
were proof the statements made by the victim’s mother were provided to Lyons’
trial counsel. The court held the newly discovered evidence exception did not
apply because Lyons failed to meet his burden of proving the evidence was
discovered after trial.
[¶16] The district court’s order does not specify, as required by N.D.C.C. § 29-
32.1-11(2), whether its decision was by summary disposition or the result of an
evidentiary hearing. However, Lyons had the opportunity to present evidence
in response to the State’s motion to dismiss and, as he acknowledged at oral
argument, also at the hearing. The court’s hearing notice contemplated the
presentation of exhibits (requiring them to be filed in advance), and the court
opened the hearing by instructing Lyons to “take over your presentation and
argument.” Lyons did not present any evidence, and he made no indication he
desired to do so. He instead advanced arguments based on his unsupported
allegations. After being put to his proof by the State’s motion and discovery
filings, Lyons failed to identify any competent admissible evidence to support
his claim. We decline Lyons’ request to remand the case for an evidentiary
hearing because he failed to meet his burden to obtain an evidentiary hearing
in the district court, and it nonetheless appears he could have presented
evidence at the hearing that was conducted had he chosen to do so. Based on
this record, the court’s findings are not clearly erroneous and the court did not
misapply the law when it held the newly discovered evidence exception does
not apply.
6
III
[¶17] Lyons’ appellate brief identifies a claim for ineffective assistance of
counsel as an issue on appeal. However, his brief contains no argument or
explanation concerning an ineffective assistance of counsel claim. We will not
address this issue because Lyons did not brief or otherwise argue it. See
Burleigh Cnty. Soc. Serv. Bd. v. Rath, 2023 ND 12, ¶ 15,
985 N.W.2d 725
(“‘Issues are not adequately briefed when an appealing party fails to cite any
supporting authority, and we will not consider them.’”) (quoting Rath v. Rath,
2019 ND 303, ¶ 6,
936 N.W.2d 538).
IV
[¶18] The postconviction relief filing deadline applies to Lyons’ application.
Lyons’ application is untimely, and he failed to demonstrate an exception to the
deadline applies. The order dismissing Lyons’ application for postconviction
relief is affirmed.
[¶19] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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