Filed 1/15/19 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2019 ND 10
Joshua James Ourada, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20180087
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Douglas R. Herman, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Jensen, Justice.
Samuel A. Gereszek, East Grand Forks, MN, for petitioner and appellant.
Leah J. Viste, Assistant State’s Attorney, Fargo, ND, for respondent and
appellee.
Ourada v. State
No. 20180087
Jensen, Justice.
[¶1] Joshua Ourada appeals from a district court order summarily dismissing his
application for post-conviction relief. Ourada asserts he was not provided with proper
notice prior to summary dismissal of his application. We reverse and remand for
further proceedings.
I.
[¶2] In June 2017, Ourada pleaded guilty to terrorizing and preventing arrest or
discharge of other duties. Ourada was sentenced to three years of imprisonment
following his guilty plea. In January 2018, Ourada filed an application for post-
conviction relief. The application raised four issues: (1) an unlawful search; (2)
exigent circumstances; (3) a challenge to the chain of custody regarding evidence; and
(4) exaggerated charges. The State responded with an answer asserting Ourada
waived the four issues stated in his application because all nonjurisdictional defects
alleged to have occurred prior to a voluntary guilty plea are waived. The State’s
answer also included a request for summary disposition citing N.D.C.C. § 29-32.1-
09(3). Twelve days later, the district court summarily dismissed Ourada’s application
without a response from Ourada.
II.
[¶3] Post-conviction relief proceedings are civil in nature and all rules and statutes
applicable in civil proceedings are available to the parties. See Vandeberg v. State,
2003 ND 71, ¶ 5, 660 N.W.2d 568. “The court, on its own motion, may enter a
judgment denying a meritless application on any and all issues raised in the
application before any response by the state.” N.D.C.C. § 29-32.1-09(1). Here, the
district court, on its own motion, could have denied Ourada’s application as meritless
under N.D.C.C. § 29-32.1-09(1) before the State responded to the application.
1
However, once the State responded, N.D.C.C. § 29-32.1-09(1) was no longer
applicable.
[¶4] Consistent with N.D.C.C. § 29-32.1-09(1) and its requirement that the district
court act prior to a response by the State, the district court treated the State’s answer
as a motion for summary disposition under N.D.C.C. § 29-32.1-09(3). Section 29-
32.1-09(3), N.D.C.C., allows for summary dismissal of an application for post-
conviction relief as follows:
The court may grant a motion by either party for summary disposition
if the application, pleadings, any previous proceeding, discovery, or
other matters of record show that there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter
of law.
[¶5] Under N.D.R.Ct. 3.2, “[n]otice must be served and filed with a motion. The
notice must indicate the time of oral argument, or that the motion will be decided on
briefs unless oral argument is timely requested.” N.D.R.Ct. 3.2(a)(1). “Rule 3.2
authorizes the hearing of routine motions on brief without formal oral arguments but
does not dispense with the requirement that a motion must be noticed.” First W. Bank
of Minot v. Wickman, 464 N.W.2d 195, 196 (N.D. 1990).
[¶6] Here, Ourada received the State’s answer, but was not put on notice that the
State had effectively motioned for summary disposition of his post-conviction
application. Due process, even in the post-conviction setting, requires notice and an
opportunity to be heard. See Chisholm v. State, 2014 ND 125, ¶ 18, 848 N.W.2d 703
(applicant for post-conviction relief was entitled to notice that his application may be
summarily dismissed and an opportunity to file an answer brief). Because Ourada’s
application for post-conviction relief was summarily dismissed subsequent to the
State’s response and without proper notice, we conclude summary dismissal was not
appropriate.
III.
2
[¶7] We reverse the order dismissing the application for post-conviction relief and
remand for further proceedings.
[¶8] Jon J. Jensen
Lisa Fair McEvers
Daniel J. Crothers
Jerod E. Tufte
Gerald W. VandeWalle, C.J.
3