IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 112

Cody Michael Atkins, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20200077

Appeal from the District Court of Traill County, East Central Judicial District, 

the Honorable Stephannie N. Stiel, Judge.

AFFIRMED.

Per Curiam.

Ashley K. Schell, Williston, ND, for petitioner and appellant.

Charles A. Stock, State’s Attorney, Hillsboro, ND, for respondent and appellee; 

submitted on brief.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 24, 2021 

STATE OF NORTH DAKOTA
1

Atkins v. State

No. 20200077

Per Curiam.

[¶1] Cody Atkins appeals from a district court order denying his motion to 

vacate the judgment and withdraw his guilty plea. In June 2015, Atkins pled 

guilty to violating an order prohibiting contact, a class A misdemeanor, and a 

criminal judgment was entered. Atkins did not appeal the criminal judgment 

following his guilty plea. In September 2018, Atkins filed his first application 

for post-conviction relief. The district court denied his application, and Atkins 

appealed the court’s order. This Court ordered that the appeal from his first 

application for post-conviction relief be dismissed at Atkins’ request.

[¶2] Atkins subsequently filed a motion seeking to vacate the judgment and 

withdraw his guilty plea. The district court treated Atkins’ motion as a second 

application for post-conviction relief because he had already filed a prior 

application for post-conviction relief. The State moved to dismiss Atkins’ 

application. At a hearing on the State’s motion, Atkins asserted he possessed 

a medical report establishing he had a mental deficiency which precluded the 

timely filing of his application. While the medical report was not entered into 

evidence, the court asked how Atkins’ mental condition precluded the timely 

filing of his application. Atkins did not answer the court’s question nor did he 

attempt to explain how his mental condition precluded timely filing. Following 

the motion hearing, the court denied Atkins’ application concluding his claims 

were precluded by res judicata; his application was untimely under N.D.C.C. § 

29-32.1-01(2) because more than two years had passed since Atkins’ conviction 

became final; and he failed to establish he suffered from a mental disease that 

precluded timely assertion of the application for relief.

[¶3] On appeal, Atkins argues the district court erred in denying his 

application without holding an evidentiary hearing to allow Atkins the 

opportunity to prove he suffered a mental disease which precluded the timely 

filing of his application for post-conviction relief. Atkins also argues the court

erred by determining his claims were barred by res judicata without holding 
2

an evidentiary hearing. “An applicant for post-conviction relief is only ‘entitled 

to an evidentiary hearing if a reasonable inference raises a genuine issue of 

material fact.’” St. Claire v. State, 2002 ND 10, ¶ 19, 638 N.W.2d 39 (quoting 

Crumley v. State, 2000 ND 110, ¶ 12, 611 N.W.2d 165). Atkins has not 

presented competent admissible evidence raising a genuine issue of fact. The 

court did not err in concluding Atkins’ claims were barred by res judicata and 

that he failed to prove he suffered a mental disease which precluded the timely 

filing of his application for post-conviction relief. See Carlson v. State, 2018 ND 

81, ¶ 8, 908 N.W.2d 711 (applicant failed to show he fell under the second 

exception to the two-year statute of limitations for post-conviction relief by 

failing to present evidence that his mental condition precluded timely assertion 

of application). We summarily affirm under N.D.R.App.P. 35.1(a)(2) and (7).

[¶4] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte