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HOLMES v. STATE (2022)

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Supreme Court of North Dakota.

Jerry Verl HOLMES, Sr., Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee

No. 20210284

Decided: April 14, 2022

Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant. Nathan K. Madden, Assistant State's Attorney, Williston, ND, for respondent and appellee; submitted on brief.

[¶1] Jerry Holmes, Sr. appeals from a district court order denying his application for post-conviction relief. Holmes argues the court erred in summarily dismissing his application based on newly discovered evidence. He contends that a hearing on newly discovered evidence is separate and distinct from a summary judgment motion hearing and that disputed facts exist in this case on whether he committed the crime, whether the complaining witness recanted, and whether the submitted statement supports a claim of newly discovered evidence. Holmes failed to present competent admissible evidence that raises a genuine issue of material fact. We summarily affirm under N.D.R.App.P. 35.1(a)(6) and (7); Yoney v. State, 2021 ND 132, ¶ 6, 962 N.W.2d 617 (explaining that when the State moves for summary dismissal, an applicant must present “competent admissible evidence by affidavit or other comparable means which raises a genuine issue of material fact” to avoid a summary dismissal).

Per Curiam.

[¶2] Jon J. Jensen, C.J. Gerald W. VandeWalle Daniel J. Crothers Lisa Fair McEvers Jerod E. Tufte

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