Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce B. Haskell, Judge.
The opinion of the court was delivered by: VandeWalle, Chief Justice.
[¶1] Daniel Myers appealed from a district court order denying his application for post-conviction relief. We conclude Myers' counsel was not ineffective and Myers' due process rights were not violated. We affirm.
[¶2] On March 25, 2003, Bismarck Police Detective Kenen Kaizer applied for a search warrant to search Myers' residence. At the hearing on the application for the warrant, Kaizer testified that he had information from Ryan Brelje that Myers, Brelje, and another individual met on March 24 and split an ounce of methamphetamine. Kaizer testified Brelje told him Myers was going home with his share of the methamphetamine. Kaizer testified Brelje gave him this information after Brelje had been stopped and arrested with nine grams of methamphetamine. Kaizer also testified Myers has a history of felony drug charges. The court found there was probable cause for the warrant.
[¶3] On March 28, 2003, Kaizer applied for a search warrant for a hotel room at the Comfort Inn in Bismarck where he believed Myers was staying. The same judge who issued the prior warrant also heard Kaizer's application for this warrant. Kaizer testified that law enforcement received information about Myers from Social Services after Social Services received a call from an anonymous informant. The anonymous informant said when Myers sells drugs he usually rents a hotel room at the Comfort Inn so he can sell drugs from the hotel instead of his house. The anonymous informant also indicated Myers usually stays at the hotel for two days at a time, refuses any type of cleaning services, and does not allow anyone in the room. Kaizer testified that he had been unable to locate Myers for the last couple of days but had found him staying in a hotel room at the Comfort Inn in Bismarck. Kaizer testified Myers had checked into the hotel under a fictitious name on March 27, the hotel manager went to the room Myers was staying in, and the room occupant showed the manager identification confirming the individual was Myers. Kaizer also testified that he had learned Myers had stayed at the hotel three to five times within the past year, usually for two days at a time. Kaizer testified that during Myers' current stay he refused cleaning services and had problems with the television in his room, but the maintenance person was initially denied access to the room to fix the problem. Kaizer testified the maintenance person said he heard noises that sounded like someone was moving items into the bathroom and then was allowed in the room after the room occupant yelled from the bathroom that the maintenance person could come in. Kaizer testified the occupant did not leave the bathroom while the maintenance person was in the room. Kaizer reminded the court that he had initially received information from Brelje about Myers' plans to sell methamphetamine, and he testified Brelje told him Myers planned to leave town to meet someone who was selling crystal methamphetamine and Myers was going to attempt to bring some back to Bismarck. The court found there was probable cause for the warrant, noting the earlier warrant for Myers' residence.
[¶4] The March 28 search warrant was executed and law enforcement officers searched the hotel room. Myers was arrested and was charged with possessing marijuana with intent to deliver, a class B felony, and two counts of possessing drug paraphernalia for use with substances other than marijuana, class C felonies. Myers moved to dismiss or consolidate the drug paraphernalia charges, and the district court granted his motion. The State filed an amended information before trial, but the amended information continued to charge Myers with two class C felonies for possession of drug paraphernalia. Myers was represented by various different attorneys at different stages in the proceedings, and the information was not amended before trial dismissing or consolidating the second possession of drug paraphernalia charge. A jury trial was held in June 2005, and the jury found Myers guilty of all three counts. A judgment was entered, and Myers was sentenced to seven years in prison. In December 2007, the judgment was amended, omitting one of the convictions for possession of drug paraphernalia.
[¶5] Myers appealed the judgment, arguing the prosecutor's closing argument violated his right against self-incrimination, the district court committed reversible error by failing to admonish the jury before a recess in the proceedings, and there was insufficient evidence to support his convictions. In State v. Myers, 2006 ND 242, 724 N.W.2d 168, this Court affirmed Myers' criminal judgment.
[¶6] In December 2007, Myers applied for post-conviction relief, and an amended application was filed in April 2008, after counsel was appointed. Myers argued his trial counsel was ineffective because his counsel did not challenge the two search warrants and he was tried for the second count of possession of drug paraphernalia after the court ordered the count be dismissed or consolidated with the other possession of drug paraphernalia charge.
[¶7] In June 2008, a hearing was held on Myers' application for post- conviction relief, but he did not present any witnesses in support of his application. Following argument on the application, the district court denied the application, stating its reasons on the record. An order denying Myers' application was subsequently entered. Myers moved for reconsideration, and the court denied the motion.
[¶8] Myers argues his trial counsel was ineffective for failing to challenge the two March 2003 search warrants. Myers also contends his counsel was ineffective and his due process rights were violated because he was tried and convicted of a charge the district court ordered be dismissed.
[¶9] A criminal defendant is guaranteed the right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. Roth v. State, 2007 ND 112, ¶ 7, 735 N.W.2d 882. The petitioner bears the burden of proving a post-conviction claim of ineffective assistance, and must prove "(1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance." Id. To prove that counsel's representation fell below an objective standard of reasonableness, the petitioner must overcome a strong presumption that counsel's representation was within the wide range of reasonable assistance. Id. at ¶ 8. Counsel's performance is measured considering prevailing professional norms, and courts must "consider all the circumstances and decide whether there were errors so serious that [petitioner] was not accorded the `counsel' guaranteed by the Sixth Amendment." Id. To prove that the petitioner was prejudiced by the deficient performance, the petitioner must show there is a ...