IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 155

Thomas Michael Pinkney, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20200249

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

Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

AFFIRMED.

Opinion of the Court by VandeWalle, Justice.

Eric P. Baumann, Minot, ND, for petitioner and appellant.

Meredith H. Larson, Assistant State’s Attorney, Grand Forks, ND, for

respondent and appellee; submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 19, 2021 

STATE OF NORTH DAKOTA
1

Pinkney v. State

No. 20200249

VandeWalle, Justice.

[¶1] Thomas Pinkney appealed from a district court order granting summary 

dismissal of his post-conviction relief application. We conclude the court did 

not abuse its discretion in denying Pinkney’s motion for continuance and did 

not err in granting the State’s motion for summary dismissal. We affirm.

I

[¶2] In 2015, Pinkney pleaded guilty to gross sexual imposition, a class A 

felony, and was sentenced. He subsequently filed for post-conviction relief on 

two occasions, in addition to filing multiple motions in his criminal case, which 

have been denied.

[¶3] In April 2020, Pinkney filed the present application for post-conviction 

relief in the district court, alleging as grounds for relief newly discovered 

evidence-DNA testing, actual innocence, and incompetence to plead guilty. In 

his application Pinkney requested to withdraw his guilty plea and proceed to 

a jury trial. The court scheduled a hearing on his application for July 24, 2020. 

The State answered opposing his application and moved the court for summary 

dismissal of his application. 

[¶4] In May 2020, Pinkney filed a motion seeking an extension of time to file 

a response to the State’s motion for summary disposition, which the district 

court granted. On June 8, 2020, Pinkney filed his response to the State’s 

motion and also served and filed a request for discovery on the State. In his 

response, Pinkney’s court-appointed attorney asserted he continued to 

research this matter, made contact with the prosecutor, and sent a request for 

discovery. His attorney further asserted that he could not say whether newly 

discovered evidence existed at that time but that he had retained a 

psychological expert and a private investigator. His attorney requested leave 

of the court to continue his investigation and to amend the application on 

conclusion of the investigation. Because investigation was on-going, he 
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requested the court to deny the State’s summary disposition motion or, in the 

alternative, reserve its decision until investigations were concluded.

[¶5] On July 15, 2020, Pinkney moved the district court for a continuance of 

the hearing on his post-conviction relief application. Pinkney’s motion 

indicated that he had received written discovery for the underlying criminal 

case from the State on June 23, 2020, and video discs a few days later, and 

pertinent parts were relayed to the psychologist for review. The motion further 

stated that the psychologist contacted Pinkney’s attorney on July 7, 2020, and 

indicated that she had not been able to interview Pinkney due to Department 

of Corrections and Rehabilitation (DOCR) policy during the pandemic and 

therefore had not been able to complete her evaluation. Pinkney’s motion 

requested the hearing be continued until September 2020, to allow the 

psychologist to complete her evaluations.

[¶6] The district court subsequently entered orders denying his motion for 

continuance and granting the State’s motion for summary dismissal.

II

[¶7] Pinkney argues the district court erred in denying his motion for 

continuance. 

[¶8] Whether to grant a motion for a continuance rests within the district 

court’s discretion. Everett v. State, 2008 ND 199, ¶ 25, 757 N.W.2d 530. A 

motion for a continuance will be granted only if the movant shows good cause. 

N.D.R.Ct. 6.1(b); State v. Hilgers, 2004 ND 160, ¶ 38, 685 N.W.2d 109. This 

Court reviews a court’s decision to grant a continuance under an abuse of 

discretion standard. Everett, at ¶ 25. A court abuses its discretion by acting 

unreasonably, arbitrarily, or unconscionably. Id.

[¶9] Pinkney asserts that the plain reason he moved for a continuance in July 

2020 was that his psychologist had not been able to interview him due to DOCR 

policy during the pandemic and, therefore, the psychologist could not complete 

the evaluation. He argues the district court erred by inferring his motion to 

continue must comply with N.D.R.Ct. 3.2(a)(2); erred by misstating the facts
3

in stating the State had not responded to his motion; and erred by 

misunderstanding his motion as based on discovery problems.

[¶10] In its order, the district court initially noted that because Pinkney had 

made his motion for a continuance so close in time to the scheduled hearing, 

his motion was untimely because the State would not have had time to respond 

to his motion under N.D.R.Ct. 3.2(a)(2). The State, however, had responded to 

the motion before the court ruled. The court nevertheless explained that it 

denied his continuance motion because Pinkney had failed to seek leave to use 

discovery procedures and had not established good cause for an “additional 

continuance” after the court previously granted him an extension of time to

respond to the State’s motion. Despite Pinkney’s assertion his psychologist had 

been unable to interview him and complete an evaluation, the court held it was 

dispositive that he was still investigating his claims for relief. The court 

specifically held Pinkney did not establish good cause for an additional 

continuance. 

[¶11] While the district court may have misstated whether the State had 

responded to his motion for a continuance, we understand the court’s ultimate 

decision to deny Pinkney an additional continuance. The State’s opposition to 

his motion on the record does not provide support for his continuance motion. 

The court did not act unreasonably, arbitrarily, or unconscionably in denying 

the motion. We conclude the court did not abuse its discretion. 

III

[¶12] Pinkney contends that the district court erred in granting the State’s 

motion for summary dismissal.

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

the North Dakota Rules of Civil Procedure.” Myers v. State, 2017 ND 66, ¶ 7, 

891 N.W.2d 724 (quoting Wacht v. State, 2015 ND 154, ¶ 6, 864 N.W.2d 740). 

A district court may summarily dismiss a post-conviction relief application 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). We review an appeal 
4

from summary dismissal of post-conviction relief as we would review an appeal 

from a summary judgment. Myers, at ¶ 7. 

[¶14] “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.” Myers, 2017 ND 66, ¶ 7 (citation omitted). This Court has further 

explained: 

A movant may discharge his burden of showing there is no 

genuine issue of material fact by pointing out to the trial court 

there is an absence of evidence to support a [applicant’s] case. Once 

the movant shows the trial court there is no record evidence to 

support the [applicant’s] claim and, therefore, there is nothing the 

State can point to in support of its assertion no such evidence 

exists, the movant has put the [applicant] on his proof and a 

minimal burden has shifted to the [applicant] to provide some 

competent evidence to support his claim. The State is permitted to 

shift the burden in this manner only in those cases in which it 

would otherwise be required to prove the complete absence of any 

evidence supporting the nonmovant’s claims and allegations in 

order to meet its initial burden of showing there are no contested 

issues of material fact. Otherwise, the moving party’s initial 

burden must still be met before the burden can be shifted to the 

nonmovant to produce evidence prior to the hearing to support his 

claim.

Parizek v. State, 2006 ND 61, ¶ 7, 711 N.W.2d 178 (cleaned up). 

[¶15] “Because post-conviction relief cases are not an opportunity to relitigate 

issues, it is the unusual case in which a post-conviction relief court will compel 

discovery, limited to issues upon which relief is available.” Davis v. State, 2013 

ND 34, ¶ 15, 827 N.W.2d 8 (citations omitted). “[P]ost-conviction relief is not a 

device for investigating possible claims, but a means for vindicating actual 

claims.” Id. (quotation marks omitted).

[¶16] Pinkney asserts his allegations “could constitute” either the “newly 

discovered evidence” or the “physical disability or mental disease” exceptions 

to the two-year statute of limitations under N.D.C.C. § 29-32.1-01(3). He 
5

asserts that he is entitled to a reasonable inference from his allegations that 

his application should not be barred by the statute of limitations. He appears 

to contend that his mere assertions are sufficient to establish the “minimal 

burden” to provide some competent evidence to support his claim after the 

State moved for summary dismissal.

[¶17] The State responds that its motion for dismissal put Pinkney to his proof 

and alleged he was barred by the statute of limitations, as well as the 

affirmative defenses of res judicata and misuse of process. The State asserts 

that after being put to his proof to oppose its motion, Pinkney filed two motions 

to either extend or continue his time to respond, admitting that he could not 

say whether there was newly discovered evidence in this case. The State 

contends he failed to file minimal competent evidence to raise an issue of 

material fact.

[¶18] Here, in a comprehensive opinion, the district court concluded Pinkney 

had failed to supplement his post-conviction relief application with any 

evidence or affidavits raising a genuine issue of material fact. The court noted 

Pinkney had acknowledged that he did not know of newly discovered evidence 

and was “investigating” whether there was newly discovered evidence or a 

mental disease. The court held Pinkney had instead relied only on conclusory, 

unsupported allegations and failed to show there was any questions of material 

fact. 

[¶19] Addressing his request to withdraw his guilty plea, the district court 

concluded Pinkney had not produced any evidence that his plea was not 

voluntarily or intelligently given and that it was not sufficient for Pinkney to 

simply provide conclusory allegations asserting he is innocent of charges or a 

vulnerable adult who did not have the ability to consult with an attorney or 

understand what had occurred in the prior proceedings. The court reasoned 

that post-conviction proceedings are not to investigate possible claims but 

rather to vindicate actual claims. 

[¶20] On this record Pinkney failed to meet his minimal burden to provide at 

least some competent evidence to support his claims in response to the State’s 
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summary dismissal motion. Instead, his filings merely suggest that his

investigation is ongoing, particularly regarding his mental competence to 

plead guilty. Pinkney has failed to raise a genuine issue of material fact. We 

therefore conclude the district court did not err in granting the State’s motion 

for summary disposition. 

IV

[¶21] The order dismissing the application is affirmed.

[¶22] Daniel J. Crothers, Acting C.J.

Gerald W. VandeWalle

Lisa Fair McEvers

Jerod E. Tufte

Rhonda R. Ehlis, D.J.

[¶23] The Honorable Rhonda R. Ehlis, D.J., sitting in place of Jensen, C.J., 

disqualified.