[Copyrighted Material Omitted]
Appeal from the District Court of Eddy County, Southeast Judicial District, the Honorable James D. Hovey, Judge.
Chad R. McCabe, Bismarck, N.D., for petitioner and appellant.
Lori S. Mickelson, Office of Attorney General, Bismarck, N.D., for respondent and appellee.
Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom, Gerald W. VandeWalle, C.J. Opinion of the Court by Kapsner, Justice.
[¶1] Mark Steinbach appeals from a judgment granting his application for post-conviction relief in part and denying his application in part. Steinbach argues the district court erred in partially denying his application because his prior post-conviction counsel was ineffective for failing to argue or provide evidentiary support that he received ineffective assistance of counsel from his trial and appellate counsel. We affirm.
[¶2] In April 1997, a jury convicted Steinbach of murder, a class AA felony, and physical obstruction of a governmental function and tampering with physical evidence, class A misdemeanors. Steinbach was sentenced to life imprisonment, without the opportunity of parole, for his murder conviction. This Court affirmed his convictions on appeal. State v. Steinbach, 1998 ND 18, 575 N.W.2d 193.
[¶3] In 1999, Steinbach applied for post-conviction relief. The application was later dismissed without prejudice for failure to comply with the district court's briefing schedule.
[¶4] In 2002, Steinbach filed a second application for post-conviction relief. The district court dismissed his application without a hearing. The court found Steinbach failed to provide evidentiary support for his claims. Steinbach appealed, and this Court affirmed the district court's decision. Steinbach v. State, 2003 ND 46, 658 N.W.2d 355.
[¶5] In March 2012, Steinbach again applied for post-conviction relief. He argued his prior post-conviction counsel was ineffective for failing to provide evidentiary support for his prior claims of ineffective assistance of counsel and for failing to argue his trial and appellate counsel were
ineffective for failing to raise issues related to the admission of evidence, sufficiency of the evidence, improper jury instructions, prosecutorial misconduct, and the applicability of the physical obstruction of a governmental function statute under the facts of his case. The State moved for summary dismissal of the application.
[¶6] After an evidentiary hearing, the district court granted Steinbach's application on his ineffective assistance claim related to the applicability of the physical obstruction of a governmental function statute and ordered that he was entitled to a new trial on that charge. The court denied his application on the remaining issues.
[¶7] Steinbach argues the district court erred in partially denying his application because his prior post-conviction counsel was ineffective for failing to argue or present evidence that his trial and appellate counsel were ineffective.
[¶8] Under N.D.C.C. § 29-32.1-09(2), an applicant may not claim ineffective assistance of post-conviction counsel. An application must be filed within two years of the date the conviction becomes final. N.D.C.C. § 29-32.1-01(2). However, these provisions were added to N.D.C.C. ch. 29-32.1 and became effective on August 1, 2013. 2013 N.D. Sess. Laws ch. 248. Because Steinbach's application was filed in 2012, the prior version of the chapter applies and these provisions do not bar his application.
[¶9] In reviewing post-conviction proceedings, the district court's factual findings will not be disturbed on appeal unless the findings are clearly erroneous. Coppage v. State, 2014 ND 42, ¶ 14, 843 N.W.2d 291. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, it is not supported by any evidence, or if we are left with a definite and firm conviction a mistake has been made. Id. Questions of law are fully reviewable. Id. Ineffective assistance of counsel is a mixed question of fact and law, which is fully reviewable on appeal. Id. at ¶ 17.
[¶10] Generally, an applicant for post-conviction relief has the burden to establish a basis for relief. Coppage, 2014 ND 42, ¶ 14, 843 N.W.2d 291. To establish a claim for ineffective assistance of counsel, the applicant has the burden to prove both prongs of the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance. Coppage, at ¶ 17. The applicant must first overcome the strong presumption counsel's representation fell within the wide range of reasonable professional assistance. Id. To meet the " prejudice" prong of the test, the applicant must establish a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. The applicant must prove that his counsel's assistance was ineffective and must specify how and where counsel was incompetent and the probable different result. Id. " 'Unless counsel's errors are so blatantly and obviously prejudicial that they would in all cases, regardless of the other evidence presented, create a reasonable probability of a different result, the prejudicial effect of counsel's errors must be assessed within the context of the remaining evidence properly presented and the overall conduct of the trial.'" Id. (quoting Coppage v. State, 2013 ND 10, ¶ 12, 826 N.W.2d 320 (" Coppage II" )). A " reasonable probability" is a probability sufficient to undermine confidence in the
outcome of the proceeding. Coppage, at ¶ 17.
[¶11] All of Steinbach's issues on appeal are based on his claim that his prior post-conviction counsel was ineffective for failing to argue or present evidence that his trial and appellate counsel were ineffective. Therefore, he must prove (1) his trial and appellate counsel's representation fell below an objective standard of reasonableness, (2) there is a reasonable probability that the result of the trial or appeal would have been different absent his counsel's alleged errors, (3) his prior post-conviction counsel's performance fell below an objective standard of reasonableness by not arguing his trial and appellate counsel were ineffective, and (4) there is a reasonable probability the result of his prior post-conviction proceeding would have been different absent his counsel's alleged errors. See Coppage II, 2013 ND 10, ¶ 25, 826 N.W.2d 320.
[¶12] Steinbach argues his trial counsel was ineffective for failing to object to the admission of evidence of prior bad acts and opening the door and eliciting further evidence of the prior bad acts. He contends the State improperly questioned a witness about a prior incident when Steinbach hit the murder victim, Debra Reinhardt, in the head with a gun, and his attorney erred by questioning him about the incident and about another incident involving an altercation with a knife. He claims the district court did not conduct the required analysis under N.D.R.Ev. 404(b) and 403 before admitting the evidence and did not give a cautionary instruction. The State argues N.D.R.Ev. 404(b) does not apply ...