IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2022 ND 22

Rodney Harold Friesz, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20210143

Appeal from the District Court of Morton County, South Central Judicial 

District, the Honorable David E. Reich, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

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

Chase R. Lingle (argued), Assistant State’s Attorney, and Gabrielle J. Goter

(on brief), Assistant State’s Attorney, Mandan, ND, for respondent and 

appellee.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JANUARY 21, 2022 

STATE OF NORTH DAKOTA
1

Friesz v. State

No. 20210143

VandeWalle, Justice.

[¶1] Rodney Friesz appealed from a district court’s order summarily 

dismissing his application for post-conviction relief. Friesz asserts he is 

entitled to relief on the basis of newly discovered evidence, specifically DNA 

evidence, which would establish that another individual committed the crimes 

that he was convicted of. We affirm the district court’s order.

I

[¶2] Friesz was convicted of manslaughter and arson following a jury trial in 

February 2016. In 2017, Friesz appealed his convictions based on insufficiency

of the evidence. This Court affirmed his convictions. State v. Friesz, 2017 ND 

177, 898 N.W.2d 688. In May 2018, Friesz filed his first application for postconviction relief and a hearing was held. The application was denied and 

affirmed on appeal by this Court. Friesz v. State, 2020 ND 2, 937 N.W.2d 285.

[¶3] In May 2020, Friesz filed a second application for post-conviction relief. 

He alleged: ineffective assistance of trial counsel; denial of effective assistance 

of counsel on his post-conviction appeal with appellate counsel; insufficiency of 

evidence to sustain a conviction; denial of his fourth amendment rights 

regarding the warrantless search of the residence, the seizure of a firearm, and 

the failure of the court to grant his motion to suppress; and failure to disclose 

DNA evidence by the prosecution. In June 2020, the State filed a motion for 

summary dismissal, arguing the application was untimely because it was filed 

more than two years after Friesz’s conviction became final. The State 

contended that Friesz failed to provide sufficient proof that there was 

undisclosed DNA evidence or how this evidence would show he did not engage 

in the criminal conduct and the rest of his allegations did not meet an 

exception, were precluded by statute, or have been or should have been 

previously addressed in his prior application for post-conviction relief. The 

State also filed an answer to the petition on the same day. The district court 

dismissed the second application for post-conviction relief. In March 2021, this 
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Court reversed the court’s denial and remanded the case to allow Friesz the 14 

days to respond to the State’s motion for summary dismissal. Friesz v. State, 

2021 ND 37, 956 N.W.2d 338.

[¶4] On remand, Friesz was given additional time, well over 30 days, to 

respond. In April 2021, he responded to the State’s motion for summary 

dismissal. Friesz asserted that “he was recently told by a corrections officer at 

the North Dakota State Penitentiary, Mitchell Horner, that the Morton County 

Sheriff’s Department was in possession of DNA evidence that had never been 

disclosed to Mr. Friesz.” Friesz asserted that pursuant to N.D.C.C. § 29-32.1-

01(3)(a)(1), this newly discovered evidence, specifically DNA evidence, would 

establish that another individual committed the crimes that Friesz was 

convicted of. The State filed a reply response and argued that Friesz has not 

offered any competent evidence or proof by sworn affidavit that there is 

undisclosed DNA evidence in the hands of the Morton County Sheriff’s 

Department. The State argued his assertions were factually incorrect and 

contrary to the record because there is no Mitchell Horner who worked for the 

Department of Corrections at the State Penitentiary, only a Mitchell Horn. The 

State asserted that it would be factually impossible for the Morton County 

Sheriff’s Department to have custody of DNA evidence. The State contended 

that even if there was DNA evidence, Friesz has failed to show how it would 

negate the evidence upholding his convictions.

[¶5] The district court dismissed the second application for post-conviction 

relief. The court reasoned that Friesz’s application was filed well beyond the 

two-year statute of limitations and neither his application nor his response to 

the State’s motion identified any competent evidence to support his allegation 

that the State failed to disclose DNA evidence. The court found the hearsay 

statement contained in his response was not competent evidence. Further, the 

court reasoned it could not determine that the newly discovered DNA evidence,

when reviewed in light of the evidence as a whole, would establish that Friesz 

did not engage in the criminal conduct, “especially given the fact that the jury 

was presented with an interview in which [Friesz] confessed to the crimes.” 

The court concluded that the application does not state any applicable 

exception to the two-year statute of limitations under N.D.C.C. § 29-32.1-01(3) 
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and the grounds for relief sought by Friesz, “have, or could have, been raised 

in his direct appeal from his conviction or in his previous application for postconviction relief.”

II

[¶6] Friesz argues the district court erred in summarily dismissing his 

application for post-conviction relief.

[¶7] “Post-conviction relief proceedings are civil in nature and governed by 

the North Dakota Rules of Civil Procedure.” Isxaaq v. State, 2021 ND 148, ¶ 6, 

963 N.W.2d 260 (citing Morris v. State, 2019 ND 166, ¶ 6, 930 N.W.2d 195). A 

district court may summarily dismiss an application for post-conviction relief 

if there is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law. N.D.C.C. § 29-32.1-09(3). “If the State moves for 

summary dismissal, putting a petitioner to his proof, a minimal burden shifts 

to the petitioner to support his application with admissible evidence, by 

affidavit or other comparable means, to raise a genuine issue of material fact.”

Morales v. State, 2020 ND 117, ¶ 3, 943 N.W.2d 761 (quoting Overlie v. State, 

2011 ND 191, ¶ 7, 804 N.W.2d 50); see also Steinbach v. State, 2003 ND 46, ¶ 

17, 658 N.W.2d 355. “The party opposing the motion for summary disposition 

is entitled to all reasonable inferences at the preliminary stages of a postconviction proceeding and is entitled to an evidentiary hearing if a reasonable 

inference raises a genuine issue of material fact.” Davis v. State, 2013 ND 34, 

¶ 25, 827 N.W.2d 8 (quoting Overlie, 2011 ND 191, ¶ 6). We review an appeal 

from a summary denial of post-conviction relief as we review an appeal from a 

summary judgment. Kovalevich v. State, 2019 ND 210, ¶ 8, 932 N.W.2d 354.

[¶8] Under N.D.C.C. § 29-32.1-01(3)(a)(1), an application for post-conviction 

relief, filed more than two years after the conviction becomes final, may be 

considered if the application alleges “newly discovered evidence, including 

DNA evidence, which if proved and reviewed in light of the evidence as a whole, 

would establish that the petitioner did not engage in the criminal conduct for 

which the petitioner was convicted.”
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[¶9] An application for post-conviction relief based on newly discovered 

evidence is similar to a request for a new trial based on newly discovered 

evidence under N.D.R.Crim.P. 33. Wacht v. State, 2015 ND 154, ¶ 11, 864 

N.W.2d 740 (citing Syvertson v. State, 2005 ND 128, ¶ 9, 699 N.W.2d 855). To 

prevail on a motion for a new trial on the grounds of newly discovered evidence, 

the defendant must show: “(1) the evidence was discovered after trial, (2) the 

failure to learn about the evidence at the time of trial was not the result of the 

defendant’s lack of diligence, (3) the newly discovered evidence is material to 

the issues at trial, and (4) the weight and quality of the newly discovered 

evidence would likely result in an acquittal.” Id. (quoting Syvertson, at ¶ 9).

[¶10] Friesz asserts he is entitled to relief under N.D.C.C. § 29-32.1-01(3)

because newly discovered evidence, specifically DNA evidence, would establish 

that another individual committed the crimes that he was convicted of.

[¶11] The State contends the application was untimely because it was filed 

more than two years after Friesz’s conviction became final. The State responds 

that Friesz failed to provide sufficient proof that there was undisclosed DNA 

evidence or how this evidence would show he did not engage in the criminal 

conduct.

[¶12] Here, the district court concluded Friesz’s application was filed well 

beyond the two-year statute of limitations and that he failed to supplement his 

application with any competent evidence to support his allegation that the 

State failed to disclose certain evidence. The court found the hearsay statement 

in his response was not competent evidence. Further, the court reasoned it 

could not determine that the newly discovered DNA evidence, when reviewed 

in light of the evidence as a whole, would establish that Friesz did not engage 

in the criminal conduct.

[¶13] Under the facts of this case, Friesz failed to meet his minimal burden to 

provide at least some competent evidence to support his claims in response to 

the State’s summary dismissal motion. Friesz’s remaining claims alleged in his 

application were or could have been raised in prior proceedings and are 
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therefore barred. See N.D.C.C. § 29-32.1-12. The district court did not err in 

summarily dismissing his application for post-conviction relief.

III

[¶14] We affirm the district court’s order summarily dismissing the application 

for post-conviction relief.

[¶15] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte