IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 222

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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

DECEMBER 8, 2022 

STATE OF NORTH DAKOTA
1

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, 2018 ND 198, ¶ 16, 916 N.W.2d 612 

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 
2

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, 2022 ND 147, ¶ 5, 

977 N.W.2d 718. “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, 2004 ND 188, ¶ 4, 687 N.W.2d 445. A party may not simply 

rely upon the pleadings or upon unsupported, conclusory allegations. Id. “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, 332 N.W.2d 264, 267 (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 postconviction 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-
3

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, 2016 WL 3223207,

*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, 2021 ND 223, ¶ 7, 967 

N.W.2d 801 (quoting State v. Bearrunner, 2019 ND 29, ¶ 5, 921 N.W.2d 894). 

“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.” Id. (quoting State v. Buchholz, 2005 ND 30, ¶ 6, 

692 N.W.2d 105).

[¶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, 2018 ND 198, ¶ 16, 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 
4

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