Wheeler v. State

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
OCTOBER 14, 2021
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2021 ND 182

Leroy Kenneth Wheeler, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Nos. 20210167, 20210168,
20210169

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.

DISMISSED.

Opinion of the Court by Crothers, Justice.

LeRoy K. Wheeler, Bismarck, ND, self-represented, petitioner and appellant;
submitted on brief.

Justine S. Hesselbart, Assistant State’s Attorney, Grand Forks, ND, for
respondent and appellee; submitted on brief.
 Wheeler v. State
Nos. 20210167, 20210168, 20210169

Crothers, Justice.

[¶1] LeRoy Wheeler appeals from a district court order denying his
applications for postconviction relief. Wheeler is subject to an order prohibiting
him from filing new postconviction relief applications without leave of court.
We treat the district court’s order as one denying Wheeler leave to file new
applications. Orders denying leave to file are not appealable, and appeal is
dismissed.

I

[¶2] In 2005, Wheeler was convicted of gross sexual imposition, encouraging
the deprivation of a minor, and contributing to the delinquency of a minor.
Wheeler appealed, and his convictions were affirmed. State v. Wheeler, 2006
ND 95, ¶ 4, 719 N.W.2d 384. Wheeler applied for postconviction relief in 2007
and 2015. Wheeler’s applications were denied by the district court and affirmed
on appeal. Wheeler v. State, 2008 ND 109, ¶ 18, 750 N.W.2d 446; Wheeler v.
State, 2015 ND 264, ¶ 7, 872 N.W.2d 634.

[¶3] When the district court dismissed Wheeler’s 2015 postconviction relief
application, it prohibited him from filing additional applications without leave
of court. Wheeler, 2015 ND 264, ¶ 1. This Court affirmed and modified the
district court’s order on appeal:

“We modify the district court’s order to comport with N.D.C.C. ch.
29-32.1 as follows: (1) Wheeler can pursue his right to appeal to
the North Dakota Supreme Court as provided by the North Dakota
Rules of Appellate Procedure, but he may not file any further
motions or pleadings in these cases at the district court level,
except after seeking and receiving approval of the presiding judge
of the Northeast Central Judicial District, or his designee, to file a
proper application under N.D.C.C. § 29-32.1-04 where Wheeler
succinctly and concisely establishes an exception to the statute of
limitation under N.D.C.C. § 29-32.1-01(3) and is not subject to
summary disposition under N.D.C.C. § 29-32.1-09; and (2) the
State is relieved from any obligation to respond to any further

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 motions or pleadings filed in district court in these cases, unless
the district court reviews the motion or pleading, determines it has
merit and, in writing, permits Wheeler’s filing and requests a
response.”

Wheeler, at ¶ 5.

[¶4] In March 2021, Wheeler applied for postconviction relief in each of his
criminal cases, alleging newly discovered evidence required the vacation of his
convictions. He alleged the State presented false evidence to the jury.

[¶5] The district court acknowledged the order prohibiting new filings by
Wheeler; however, Wheeler’s applications were accepted and filed because they
were not “referred to the Court before being accepted to determine whether or
not the Clerk should have even allowed Wheeler to file any further documents.”
The court found Wheeler “should not have been allowed to file these petitions
without prior permission from the Court, and yet for some reason, he managed
to again get his Petitions filed and reviewed, despite the Petitions lacking any
merit.” The district court then proceeded to review the merits of Wheeler’s
claims and found he did not present newly discovered evidence. The court
ultimately denied Wheeler’s applications, concluding he was reasserting
claims he made at trial and in earlier applications for postconviction relief.

II

[¶6] Wheeler appeals from the district court’s order denying his applications
for postconviction relief. Wheeler’s appeal is similar to other appeals in which
a litigant is subject to an order prohibiting new filings without leave of court.
See Everett v. State, 2020 ND 257, 952 N.W.2d 95; Everett v. State, 2018 ND
114, 910 N.W.2d 835; Everett v. State, 2017 ND 111, 893 N.W.2d 506; Everett
v. State, 2017 ND 93, 892 N.W.2d 898. In Everett, 2017 ND 93, ¶ 14, we
concluded an “order denying [a litigant] leave of court to allow him further
filings is not an appealable order.”

[¶7] In Everett, 2020 ND 257, ¶ 9; and Everett, 2018 ND 114, ¶ 8, despite the
order prohibiting new filings without leave of court, the district court
addressed the claims raised in the postconviction relief application. We held

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“the court should not have ruled on the merits of Everett’s postconviction relief
claims.” Everett, 2020 ND 257, ¶ 9; Everett, 2018 ND 114, ¶ 8. “If orders
limiting abusive filings are to have credibility with litigants, it is incumbent
on courts to make the required initial determinations whether a particular
litigant’s proffered papers will be filed. Without judicial adherence to our
orders, we have little reason to believe others will comply.” Everett, 2020 ND
257, ¶ 9; Everett, 2018 ND 114, ¶ 9. We treated the orders denying Everett’s
applications for postconviction relief as denials of a request for leave to file
because the court concluded Everett’s allegations simply restated arguments
that had been rejected in earlier proceedings. Everett, 2020 ND 257, ¶ 9;
Everett, 2018 ND 114, ¶ 10. We dismissed the appeals because denial of leave
to file is not appealable. Everett, 2020 ND 257, ¶ 9; Everett, 2018 ND 114, ¶ 10.

[¶8] Here, the district court concluded Wheeler’s applications should not have
been filed, but then addressed the merits of Wheeler’s newly discovered
evidence claims. Rather than address the merits, the court should have treated
Wheeler’s applications as a request for “approval of the presiding judge of the
Northeast Central Judicial District, or his designee, to file a proper application
under N.D.C.C. § 29-32.1-04 where Wheeler succinctly and concisely
establishes an exception to the statute of limitation under N.D.C.C. § 29-32.1-
01(3) and is not subject to summary disposition under N.D.C.C. § 29-32.1-09.”
Wheeler, 2015 ND 264, ¶ 5.

[¶9] The district court dismissed Wheeler’s application, finding “[h]e should
not have been allowed to file these petitions without prior permission from the
Court, and yet for some reason, he managed to again get his Petitions filed and
reviewed, despite the Petitions lacking any merit.” The district court also found
the claims were “repetitive, frivolous, and barred by res judicata and collateral
estoppel.” The court stated “[e]ach of these claims that Wheeler is now
proposing as ‘newly discovered evidence’ are not newly discovered evidence.
They are in fact . . . simply variations of a theme and argument that Wheeler
has been presenting, to the trial court and to the appeal court, since 2005.” On
the basis of the court’s findings, we conclude as a matter of law that Wheeler
did not meet the meritorious claim requirement in the 2015 order prohibiting
him from filing new applications without leave of court. See Everett, 2020 ND

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257, ¶ 9; Everett, 2018 ND 114, ¶ 10. We treat the court’s decision as a denial
of a request for leave to file. Denial of leave to file is not appealable, and
Wheeler’s appeal is dismissed. See Everett, 2020 ND 257, ¶ 9; Everett, 2018 ND
114, ¶ 10.

III

[¶10] Because Wheeler cannot file new applications without leave of court, the
district court’s order is treated as one denying Wheeler leave to file. Because
orders denying leave to file are not appealable, Wheeler’s appeal is dismissed.

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

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