FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 17, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 204
Russell Frank Craig, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20210108
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.
Tessa M. Vaagen, Assistant State’s Attorney, and Jamie Schaible, third-year
law student, under the Rule on Limited Practice of Law by Law
Students, Bismarck, ND, for respondent and appellee; submitted on brief.
Craig v. State
No. 20210108
Jensen, Chief Justice.
[¶1] Russell Frank Craig appeals from a judgment granting summary
disposition and dismissing his motion for postconviction relief based on res
judicata. Craig argues his claims are not barred by res judicata. We conclude
Craig’s claims are barred by res judicata, and we affirm the judgment.
I
[¶2] Craig pleaded guilty to murder in 2007 and was sentenced to life with
the possibility of parole. Craig initiated a postconviction proceeding in 2013,
which was summarily dismissed. In 2018, in the underlying criminal case,
Craig filed a motion to withdraw his guilty plea. The district court denied the
motion, and this Court affirmed. State v. Craig, 2020 ND 80, 941 N.W.2d 539.
[¶3] Craig filed another application for postconviction relief in October of
2020. In his application, Craig argued his parole date was moved in violation
of ex post facto law. The State answered, denying Craig’s allegations and
raising the affirmative defense of res judicata. The State moved for summary
disposition arguing Craig’s claims were barred by res judicata.
[¶4] In March of 2021, the district court granted summary disposition and
dismissed Craig’s application for postconviction relief. The court found the
matter was barred by res judicata as the same arguments were heard in the
underlying criminal case and affirmed in State v. Craig, 2020 ND 80. The court
accordingly held these claims were “fully and finally determined in a previous
proceeding.” Craig appealed.
II
[¶5] Craig argues the district court erroneously determined his claims were
asserted in the 2018 motion to withdraw his guilty plea proceedings and barred
from further litigation by the doctrine of res judicata.
1
[¶6] Our standard of review for the summary dismissal of a petition for
postconviction relief has been summarized as follows:
We review an appeal from summary denial of post-conviction relief
as we would review an appeal from a summary judgment. The
party opposing the motion for summary dismissal is entitled to all
reasonable inferences to be drawn from the evidence and is
entitled to an evidentiary hearing if a reasonable inference raises
a genuine issue of material fact. For summary judgment purposes,
the evidentiary assertions of the party opposing the motion are
assumed to be true.
Sambursky v. State, 2006 ND 223, ¶ 7, 723 N.W.2d 524 (internal references
omitted).
[¶7] Craig relies on this Court’s opinion in State v. Craig, 2020 ND 80, to
demonstrate that the claims he is now asserting were not raised in that
proceeding. In Craig, we noted the following: “Craig concedes he did not raise
at the district court the issue of whether his sentence was illegal or whether
the district court violated the prohibition against ex post facto laws.” Id. at ¶
5. Craig argues his present claims cannot be barred by res judicata if they had
not previously been raised or addressed by the district court.
[¶8] Under N.D.C.C. § 29-32.1-12(1), an application for postconviction relief
may be barred by res judicata. Section 29-32.1-12(1) reads:
1. An application for postconviction relief may be denied on the
ground that the same claim or claims were fully and finally
determined in a previous proceeding.
[¶9] In Chisholm v. State, this Court stated:
Res judicata prevents relitigation of claims that were raised, or
could have been raised, in prior actions between the same parties.
Ungar v. N.D. State Univ., 2006 ND 185, ¶ 11, 721 N.W.2d 16. This
was Chisholm’s second application for postconviction relief. He
could have raised these claims in the previous postconviction
action but did not do so. Therefore, they were barred by res
judicata.
2
2020 ND 19, ¶ 16, 937 N.W.2d 520. Res judicata is an affirmative defense that
must be pleaded by the State under N.D.C.C. § 29-32.1-12(3); See Chisholm, at
¶ 15.
[¶10] As noted in this Court’s previous opinion, Craig did not raise the issues
of an illegal sentence or ex post facto law during the earlier proceedings. Craig,
2020 ND 80, ¶ 5. However, res judicata also applies to claims that could have
been raised at the earlier proceedings. Although Craig failed to raise the issues
he now raises in the present proceedings, he has not offered any explanation
why the issues could not have been raised in the earlier proceedings. To the
contrary, his attempt to improperly raise the issues on appeal in his most
recent prior action establishes the issues could have been raised.
[¶11] Under the statutory requirements, the State met its burden of pleading
the affirmative defense of res judicata in response to Craig’s application. The
State properly moved for summary dismissal of Craig’s claims asserting the
claims were, or could have been, raised in prior proceedings and were therefore
barred by res judicata from further litigation. We conclude the district court
did not err in the dismissal of Craig’s claims.
III
[¶12] The district court did not err in finding Craig’s claims to be barred from
further litigation by the doctrine of res judicata. We affirm the judgment
dismissing Craig’s petition for postconviction relief.
[¶13] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
3