Bell v. State

                                                                                 FILED
                                                                         IN THE OFFICE OF THE
                                                                      CLERK OF SUPREME COURT
                                                                           DECEMBER 8, 2022
                                                                       STATE OF NORTH DAKOTA




                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                

Kyle Kenneth Bell,                                   Petitioner and Appellant
      v.
State of North Dakota,                              Respondent and Appellee

                                No. 20220161

Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Steven L. Marquart, Judge.

AFFIRMED.

Opinion of the Court by Jensen, Chief Justice.

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.

Birch P. Burdick, State’s Attorney, Fargo, ND, for respondent and appellee.
                                  Bell v. State
                                  No. 20220161

Jensen, Chief Justice.

[¶1] Kyle Kenneth Bell appeals from a district court’s judgment granting the
State’s motion for summary judgment. We conclude the limitation on Bell’s
access to state case law as the result of being held in a federal correctional
facility does not constitute a physical disability extending the statute of
limitations for the filing of his application for post-conviction relief. We affirm.

                                         I

[¶2] On September 24, 1999, Bell was convicted of murder, a class AA felony.
Bell appealed his conviction to this Court. We dismissed Bell’s appeal after
concluding he had abandoned the appeal after escaping from custody. The
United States Supreme Court denied Bell’s petition for a writ of certiorari of
his conviction. In March 2001, Bell applied for post-conviction relief. His
application was dismissed by the district court and affirmed by this Court.

[¶3] On October 29, 2021, Bell filed for a second post-conviction relief
application arguing that certain testimony proffered at trial was
unconstitutional, that this testimony resulted in perjury, that his trial counsel
was ineffective, and that State v. Pickens, 

, 

established a new rule of law requiring reversal of his case. Bell argued his
post-conviction relief application should be considered although it was
submitted more than two years after Pickens was decided and beyond the
statute of limitations. Bell argued the “restraint of being incarcerated in a
federal facility with limited access to caselaw” constituted a “physical
disability” under N.D.C.C. § 29-32.1-01(3)(a)(2), an exception allowing
application for post-conviction relief beyond the normal two-year statute of
limitations. The State raised the affirmative defenses of misuse of process, res
judicata, and statute of limitations, and moved for summary judgment.

[¶4] The district court granted the State’s motion finding that Bell’s claims
were barred for misuse of process and outside the statute of limitations. The
court found that Pickens did not advance a new rule of law, and that Bell failed

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to apply for relief within two years of the Pickens decision because Bell’s alleged
inability to access state case law while in federal prison did not qualify as a
“physical disability” under N.D.C.C. § 29-32.1-01(3)(a)(2).

                                        II

[¶5] “Postconviction relief proceedings are civil in nature and governed by the
North Dakota Rules of Civil Procedure.” Bridges v. State, 

,

. “Summary disposition of an application for postconviction
relief after the State responds is akin to summary judgment under N.D.R.Civ.P.
56.” Id. at ¶ 6. Summary judgment is appropriate against a party who fails to
establish the existence of a factual dispute on an essential element of a claim.
Riemers v. Omdahl, 

, 

. A party may not simply
rely upon the pleadings or upon unsupported, conclusory allegations. 

 “A
party resisting a motion for summary judgment has the responsibility of
presenting competent admissible evidence by affidavit or other comparable
means . . . raising a material factual issue[.]” First Nat. Bank of Hettinger v.
Clark, 

 (N.D. 1983) (citations omitted).

[¶6] A post-conviction application may be brought if “[a] significant change in
substantive or procedural law has occurred which, in the interest of justice,
should be applied retrospectively[.]” N.D.C.C. § 29-32.1-01(1)(f). A post-
conviction application must be filed within two years of a final conviction
unless (1) the petitioner alleges newly discovered evidence; (2) the petitioner
establishes he suffered from a physical disability or mental disease that
precluded timely assertion; or (3) the petitioner asserts a new interpretation of
law that is retroactively applicable to his case. N.D.C.C. § 29-32.1-01(2) and (3)
(emphasis added).

[¶7] The term “physical disability” is not defined in the Uniform
Postconviction Procedure Act. However, it does appear at least one place in
North Dakota law. The North Dakota Human Rights Act prohibits the State
from discriminating on the basis of “any mental or physical disability” in
certain enumerated activities. N.D.C.C. § 14-02.4-01. The term “disability” is
further defined in that statute as a “physical or mental impairment that
substantially limits one or more major life activities . . . .” N.D.C.C. § 14-02.4-

                                        2
02(5). Black’s Law Dictionary defines “physical disability” as “[a]n incapacity
caused by a physical defect or infirmity, or by bodily imperfection or mental
weakness.” 559 (10th ed. 2014). See also Ligtenberg v. State, 

,
*4 (Minn. Ct. App. 2016) (“Imprisonment is not a physical disability” within
the context of Minnesota’s similar post-conviction relief statute.).

[¶8] Our law requires that “[w]ords used in any statute are to be understood
in their ordinary sense, unless a contrary intention plainly appears . . . .”
N.D.C.C. § 1-02-02. “Words in a statute are given their plain, ordinary, and
commonly understood meaning . . . .” State v. Houkom, 

, 

 (quoting State v. Bearrunner, 

, 

).
“We interpret statutes to give meaning and effect to every word, phrase, and
sentence, and do not adopt a construction which would render part of the
statute merely surplusage.” 

 (quoting State v. Buchholz, 

,

).

[¶9] Here, Bell argues his post-conviction relief application should be
considered even though it was submitted more than two years after his
conviction became final, and two years after the Pickens decision was made.
Bell argues the “restraint of being incarcerated in a federal facility with limited
access to caselaw” constitutes a “physical disability” under N.D.C.C. § 29-32.1-
01(3)(a)(2). He further argues this “restraint” prevented him from learning
about Pickens, 

, a case he argues creates a new rule of law
that would apply retroactively, is directly applicable to him, and would reverse
his conviction.

[¶10] We need not reach the merits of his argument that Pickens advances a
new rule of law that would apply retroactively to Bell’s case. We conclude the
statutory meaning of “physical disability” within N.D.C.C. § 29-32.1-01(3)(a)(2)
does not include an inability to access state case law while serving a sentence
in a federal prison. A plain reading of “physical disability” would not include
such an interpretation and would render the subsequent term “mental disease”
as meaningless within the context of the statute as a whole. The term also
closely resembles the term “disability” in N.D.C.C. § 14-02.4-02(5) which
includes the phrase “physical or mental impairment” to which a physical


                                        3
inability to access state case law would not conform as a commonly understood
meaning. Finally, Black’s Law Dictionary definition, which includes “physical
defect or infirmity, or by bodily imperfection or mental weakness,” more closely
reflects a plain understanding of the term “physical disability.” Therefore, as a
matter of law, the district court did not err in determining that Bell’s claim was
precluded as untimely because he did not suffer from a “physical disability”
that would excuse his untimely application.

[¶11] Bell’s argument that the term “physical disability” includes limitations
on access to state case law as the result of being held in a federal correctional
facility is not supported by our law and is without merit. The district court’s
judgment to summarily dismiss Bell’s post-conviction relief application is
affirmed.

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




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