Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Frank L. Racek, Judge.
The opinion of the court was delivered by: Crothers, Justice.
This opinion is subject to petition for rehearing.
[Download as WordPerfect] Concurrence filed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Opinion of the Court by Crothers, Justice.
[¶1] Reginald Tweed appeals from the district court's order summarily dismissing his second application for post-conviction relief. Tweed argues the district court erred in summarily dismissing his application because the claims were not barred by res judicata or a misuse of process and his claims of ineffective assistance of post-conviction counsel are valid claims. We conclude the district court properly dismissed Tweed's evidentiary, ineffective assistance of trial counsel and prosecutorial misconduct claims, but the court erred in summarily dismissing his claim for ineffective assistance of post-conviction counsel. We affirm in part, reverse in part, and remand for further proceedings.
[¶2] In October 1991, Tweed was convicted of murdering Terry Dorff. Tweed appealed his conviction, arguing the trial court erred in failing to instruct the jury on the lesser included offense of negligent homicide and the language of the murder statute is unconstitutionally void for vagueness. See State v. Tweed, 491 N.W.2d 412 (N.D. 1992). This Court affirmed his conviction. Id.
[¶3] Tweed claimed David Sumner was involved in Dorff's murder. Sumner was charged with murdering Dorff, and a jury trial was held in February 1992. The jury acquitted Sumner of murder.
[¶4] In 2008, Tweed filed an application for post-conviction relief, arguing he was entitled to a new trial or to have his murder conviction vacated because newly discovered evidence existed and his trial counsel was ineffective. After an evidentiary hearing, the district court denied Tweed's application. Tweed appealed, and this Court affirmed the district court's judgment ...