State v. Moore

2010 ND 229

• Court: North Dakota Supreme Court
• Decided: December 2, 2010
• Docket: 20100238
• Status: Published

Opinion

Filed 12/2/10 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2010 ND 226

Tilmer Everett, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20100222

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

AFFIRMED.

Per Curiam.

Tilmer Everett, P.O. Box 5521, Bismarck, N.D. 58506; self-represented.

Cynthia Mae Feland, Assistant State’s Attorney, Courthouse, 514 East Thayer, Bismarck, N.D. 58501-4413, for respondent and appellee.

Everett v. State

[¶1] Tilmer Everett appealed from the district court’s summary dismissal of his application for post-conviction relief.  This Court summarily affirmed Everett’s conviction for gross sexual imposition in State v. Everett , 2008 ND 126, 756 N.W.2d 344.  We affirmed the district court’s denials of Everett’s prior applications for post-

conviction relief in Everett v. State , 2008 ND 199, 757 N.W.2d 530, and Everett v. State , 2010 ND 4, 789 N.W.2d 282.

[¶2] On appeal, Everett argues that he was denied effective assistance of counsel in his direct appeal, that his conviction was obtained by the unconstitutional failure of the State to disclose evidence favorable to the defendant, and that the conviction was obtained by the use of evidence from an unlawful arrest.  We affirm under N.D.R.App.P. 35.1(a)(6) and (7); see also Everett , 2010 ND 4, ¶ 1, 789 N.W.2d 282 (citing Klose v. State , 2008 ND 143, ¶ 10, 752 N.W.2d 192 (res judicata precludes claims or variations of claims raised in previous proceedings, and misuse of process precludes claims that could have been raised in a prior post-conviction proceeding or other proceeding)).

[¶3] Gerald W. VandeWalle, C.J.

Dale V. Sandstrom

Daniel J. Crothers

Mary Muehlen Maring

Carol Ronning Kapsner