Erin M. Conroy, Bottineau, ND, for petitioner and appellant.
Jonathan R. Byers, Office of Attorney General, Bismarck, ND, for respondent and appellee.
[¶ 1] Michael Lee Broadwell appeals a district court memorandum denying his application for postconviction relief. Because Broadwell has not established that he was prejudiced by the conduct which he alleges constituted ineffective assistance of counsel and prosecutorial misconduct, we affirm the district court order.
[¶ 2] In the early morning hours of August 30, 2011, McIntosh County sheriffs were called to a home in Ashley, North Dakota, where two individuals alleged that Broadwell, whom they both knew, assaulted and threatened them. During the same time frame, Broadwell made a call to police to report that the same two individuals had come to his apartment and broken in. Broadwell was taken into custody, and after an investigation, police found the two individuals' story more credible. While in custody, Broadwell was brought to the home of the two individuals' neighbor. The neighbor identified Broadwell as having the build and profile of the person the neighbor saw leaving the two individuals' home that night. A hat, sunglasses, and a knife were recovered from the two individuals' home and sent to the North Dakota Crime Laboratory for latent print and DNA testing.
[¶ 3] Following a jury trial, Broadwell was found guilty of burglary, terrorizing, making a false report, giving false information or report to law enforcement officers, simple assault, and disorderly conduct. Broadwell appealed, but the appeal was dismissed pursuant to a motion by Broadwell's attorney. Broadwell then filed an application for postconviction relief arguing, among other things, ineffective assistance of counsel and prosecutorial misconduct. After an evidentiary hearing, the district court denied Broadwell's postconviction application. Broadwell appealed.
[¶ 4] Broadwell appeals from a district court memorandum denying his application for postconviction relief. " An attempted appeal from an order for judgment will be treated as an appeal from a subsequently entered consistent judgment, if one exists." Lund v. Lund, 2011 ND 53, ¶ 5, 795 N.W.2d 318 (citations omitted). The district court in this case filed a findings of fact, conclusions of law, and order denying postconviction relief on the same date as the memorandum from which Broadwell appeals. We will therefore treat Broadwell's appeal as an appeal from a subsequently entered consistent judgment.
[¶ 5] Postconviction proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure. Moore v. State, 2007 ND 96, ¶ 8, 734 N.W.2d 336 (citation omitted). " The petitioner has the burden of establishing grounds for post-conviction relief." Id. (citation omitted). " A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a)." Ellis v. State, 2003 ND 72, ¶ 6, 660 N.W.2d 603 (citing Hill v. State, 2000 ND 143, ¶ 17, 615 N.W.2d 135). " A finding is clearly erroneous if it is induced by an erroneous view of the law, if it is not supported by any evidence, or if, although there is some evidence to support it, a reviewing court is left with a definite and firm conviction a mistake has been made." Cue v. State, 2003 ND 97, ¶ 10, 663 N.W.2d 637 (citation omitted). " Questions of law are fully reviewable on appeal of a post-conviction proceeding." Ellis, at ¶ 6 (citing Falcon v. State, 1997 ND 200, ¶ 9, 570 N.W.2d 719).
[¶ 6] On appeal, Broadwell argues the district court erred in finding that his trial counsel was not ineffective. In support of his argument, Broadwell alleges his trial counsel failed to request a copy of DNA evidence, failed to move to exclude prior crimes, failed to counsel Broadwell not to testify about prior crimes, failed to object to testimony about prior crimes, failed to ...