Darla J. Schuman, Grand Forks, ND, for petitioner and appellant.
M. Jason McCarthy (argued), Assistant State's Attorney, and Jared J. Wall (on
brief), under the Rule on Limited Practice of Law by Law Students, Grand Forks, ND, for respondent and appellee.
[¶ 1] Kevin Moore appeals from a district court order summarily dismissing his third postconviction application, arguing his postconviction counsel provided ineffective assistance by failing to file a brief in support of his postconviction application. Because the district court's summary dismissal of Moore's postconviction application was not erroneous, and because an ineffective assistance of postconviction counsel claim cannot be established from the record before us, we affirm the district court order.
[¶ 2] Moore was charged with and pled guilty to attempted murder. After an unsuccessful appeal and two unsuccessful applications for postconviction relief, Moore filed a third, pro se application for postconviction relief. In his application, he alleged that newly discovered evidence entitled him to an evidentiary hearing, where he could argue for withdrawal of his guilty plea and a new trial. Moore then applied for and was assigned a court appointed attorney. In its reply brief, the State moved for summary dismissal of Moore's postconviction application. Moore's court appointed attorney subsequently withdrew from his case, and the district court appointed new counsel. Moore's new attorney filed a notice of appearance and a discovery request, but filed no other documents on Moore's behalf. The district court summarily dismissed Moore's third postconviction application.
[¶ 3] Moore now appeals the district court's order summarily dismissing his application for postconviction relief. When a petitioner applies for postconviction relief to withdraw a guilty plea, the court looks to whether relief is " necessary to correct a manifest injustice." Moore v. State, 2007 ND 96, ¶ 10, 734 N.W.2d 336. Under the Uniform Postconviction Procedure Act as applicable at the time of this postconviction application, a district court could summarily dismiss an application where there was " no genuine issue as to any material fact and the moving party [was] entitled to a judgment as a matter of law." N.D.C.C. § 29-32.1-09 (2009). " If the State move[d] for summary dismissal, putting a petitioner to his proof, a minimal burden shift[ed] to the petitioner to support his application with ‘ competent admissible evidence by affidavit or other comparable means which raises an issue of material fact.’ " Davis v. State, 2013 ND 34, ¶ 9, 827 N.W.2d 8 (quoting Ude v. State, 2009 ND 71, ¶ 8, 764 N.W.2d 419). This Court " ordinarily review[s] an appeal from a summary denial of post-conviction relief in the same way that we review appeals from summary judgment." Johnson v. State, 2004 ND 130, ¶ 5, 681 N.W.2d 769 (citing Murchison v. State, 2003 ND 38, ¶ 8, 658 N.W.2d 320). " On appeal from a summary judgment [this Court] must determine whether or not the information available to the trial court, when viewed in a light most favorable to the opposing party, precludes the existence of a genuine issue of material fact and entitles the moving party to summary judgment as a matter of law." State Bank of Kenmare v. Lindberg, 471 N.W.2d 470, 472 (N.D.1991) (citation omitted).
[¶ 4] In this case, Moore filed an application for postconviction relief which vaguely alluded to new evidence not heard by the district court which he said would negate the intent element of his crime. In its opposition brief, the State argued that
Moore had not presented anything beyond mere assertions to support his claim and requested that the court summarily dismiss Moore's application. However, Moore filed no evidence to support the allegations in his postconviction application. Therefore, the district court's summary dismissal of Moore's postconviction application was proper.
[¶ 5] Rather than argue that the district court's summary dismissal was erroneous, Moore argues on appeal that he received ineffective assistance of postconviction counsel due to counsel's failure to file a responsive brief in support of Moore's postconviction application. Generally, this Court does not address issues that were not raised below, unless the alleged error was obvious. See State v. Frohlich, 2007 ND 45, ¶ 31, 729 N.W.2d 148. In the context of ineffective assistance of counsel claims, this Court reviews the record " to determine if counsel's performance was ‘ plainly defective.’ " State v. Koenig, 2010 ND 75, ¶ 2, 789 N.W.2d 731 (quoting State v. Blurton, 2009 ND 144, ¶ 20, 770 N.W.2d 231). This Court's process for deciding ineffective assistance of postconviction counsel claims follows Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as outlined in Johnson:
Ineffective assistance of counsel claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, in Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), the Supreme Court ruled, because " [t]here is no constitutional right to an attorney in state post-conviction proceedings," " a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Based on Coleman, several courts have ruled claims of ineffective assistance of post-conviction counsel simply cannot be raised in an application for post-conviction relief, even in jurisdictions that afford a statutory right to counsel in post-conviction relief proceedings. Some courts have concluded claims of ineffective assistance of post-conviction counsel are still cognizable in a post-conviction proceeding, but those courts apply a lesser standard than the standard set forth in Strickland. " The ...