IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 108

Bejan David Etemad, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20220373

Appeal from the District Court of Grand Forks County, Northeast Central

Judicial District, the Honorable John A. Thelen, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Bejan D. Etemad, Seattle, WA, self-represented, petitioner and appellant.

Ashlei A. Neufeld, Assistant State’s Attorney, Grand Forks, ND, for respondent 

and appellee; submitted on brief. 

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 8, 2023 

STATE OF NORTH DAKOTA
2

Etemad v. State

No. 20220373

McEvers, Justice.

[¶1] Bejan Etemad appeals from a district court’s order summarily dismissing 

his application for post-conviction relief. On appeal, Etemad argues the district 

court erred by dismissing his application because he has not previously raised 

similar issues on post-conviction and by failing to give him notice prior to 

dismissal. We affirm.

I

[¶2] Etemad was found guilty of terrorizing following a jury trial in November 

2017. His conviction for terrorizing was affirmed on appeal. State v. Etemad, 

2018 ND 240, 919 N.W.2d 192. Etemad brought an application for postconviction relief which included the underlying terrorizing conviction. 

Following an evidentiary hearing, an order denying his application for postconviction relief was entered. The decision was appealed and affirmed. Etemad 

v. State, 2022 ND 81, ¶ 1, 972 N.W.2d 928.

[¶3] In November 2022, Etemad filed another application for post-conviction 

relief. He alleged reversible error occurred in the jury selection process, and

requested transcripts from the jury selection be reviewed by legal counsel. On 

December 1, 2022, before the State filed an answer, the district court 

summarily dismissed Etemad’s application for post-conviction relief. The court 

found Etemad’s application for post-conviction relief was meritless, a misuse 

of process, and untimely.

II

[¶4] On appeal, Etemad argues the district court erred in summarily 

dismissing his application because he has not previously raised the alleged

error in jury selection. Etemad also argues the court erred when it summarily 

dismissed his application for post-conviction relief without affording him notice 

and an opportunity to support his application.
3

[¶5] Under N.D.C.C. § 29-32.1-09(1), the district court may summarily 

dismiss a meritless application sua sponte before the State responds. Atkins v. 

State, 2021 ND 83, ¶ 8, 959 N.W.2d 588. The second sentence of N.D.C.C. § 29-

32.1-09(1) provides: “The court also may summarily deny a second or 

successive application for similar relief on behalf of the same applicant and 

may summarily deny any application when the issues raised in the application 

have previously been decided by the appellate court in the same case.” We have

explained that summary dismissal of an application before the State responds 

“is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for 

failure to state a claim upon which relief can be granted.” Chase v. State, 2017 

ND 192, ¶ 6, 899 N.W.2d 280 (cleaned up). The court on its own initiative, and 

cautiously exercising its discretion, may dismiss a complaint for failure to state 

a claim, but should only do so when it appears beyond doubt that no set of facts 

support the claim. Patten v. Green, 397 N.W.2d 458, 459 (N.D. 1986). The 

requirements for an application for post-conviction relief are set forth in 

N.D.C.C. § 29-32.1-04(1), which provides:

The application must identify the proceedings in which the 

applicant was convicted and sentenced, give the date of the 

judgment and sentence complained of, set forth a concise statement 

of each ground for relief, and specify the relief requested. Argument, 

citations, and discussion of authorities are unnecessary.

(emphasis added). We have also said a petitioner does not have to provide 

evidence or proof with his application. Vandeberg v. State, 2003 ND 71, ¶ 4, 

660 N.W.2d 568. The standard of review for a Rule 12(b)(6) dismissal is well 

established:

On appeal from a dismissal under N.D.R.Civ.P. 12(b)(6), we 

construe the complaint in the light most favorable to the plaintiff 

and accept as true the well-pleaded allegations in the complaint. A 

district court’s decision granting a Rule 12(b)(6) motion to dismiss 

a complaint will be affirmed if we cannot discern a potential for 

proof to support it. We review a district court’s decision granting a 

motion to dismiss under N.D.R.Civ.P. 12(b)(6) de novo on appeal.
4

Curtiss v. State, 2020 ND 256, ¶ 4, 952 N.W.2d 43 (cleaned up). In Chisholm v. 

State, we stated, “[w]hen the court considered matters outside the pleading in 

summarily dismissing an application on its own motion, we have treated the 

court’s summary dismissal as a summary judgment and held the procedural 

requirements apply.” 2014 ND 125, ¶ 12, 848 N.W.2d 703; see also Van Chase 

v. State, 2019 ND 214, ¶ 8, 932 N.W.2d 529. The procedural requirements 

include that an applicant be given notice and an opportunity to submit 

evidence before the court determines a claim is meritless. Chisholm, 2014 ND 

125, ¶ 14. However, we have also stated that in deciding a motion under Rule 

12(b)(6), courts “may consider, in addition to the pleadings, materials embraced 

by the pleadings and materials that are part of the public record, without 

converting the motion to a summary judgment under Rule 56.” Krile v. Lawyer, 

2020 ND 176, ¶ 13, 947 N.W.2d 366 (cleaned up).

[¶6] In this case, the district court summarily dismissed Etemad’s application 

before the State responded. The district court held Etemad had not alleged any 

facts to support his claim, which would appear to be a dismissal under 

N.D.R.Civ.P. 12(b)(6). It is clear from the district court’s order that the court 

relied on the record and its knowledge of Etemad’s case and prior postconviction application in denying this application because it expressly 

referenced Etemad’s prior application and outcome from his prior appeal. 

Under N.D.R.Ev. 201(b), a court may judicially notice a fact not subject to 

reasonable dispute if it “is generally known within the trial court’s territorial 

jurisdiction,” or “can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned.” A court “may take judicial notice 

on its own.” N.D.R.Ev. 201(c)(1). See also Steen v. State, 2007 ND 123, ¶ 23, 736 

N.W.2d 457 (discussing the district court taking judicial notice of prior 

applications for post-conviction relief considered by the district court and this 

Court). 

[¶7] Etemad’s application alleges the following grounds: “the jury selection 

has issues and ETEMAD believes reversible error was part of the proceedings. 

ETEMAD requests the selection transcripts be made available for review by 

legal counsel.” Etemad’s requested relief in his application was a new trial. 

Etemad’s application fails to provide a concise statement of any ground for 
5

relief. Rather, he alleges an unspecified error and a request to further 

investigate a potential claim. Post-conviction relief is not a device for 

investigating possible claims, rather they are intended to vindicate actual 

claims. Davis v. State, 2013 ND 34, ¶ 15, 827 N.W.2d 8 (citations omitted). Postconviction cases are also not intended to be an opportunity to relitigate issues. 

Id. The district court did not err in denying Etemad’s second application for 

post-conviction relief under N.D.C.C. § 29-32.1-09(1) prior to the State 

responding because his application on its face was meritless when he failed to 

provide a concise statement indicating adequate grounds for relief or allege 

any facts to support his claims.

III

[¶8] We have considered the remaining issues and arguments raised by 

Etemad and conclude them to be either without merit or unnecessary to our 

decision. The district order is affirmed.

[¶9] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr