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Howard v. State

Supreme Court of North Dakota

April 28, 2015

Leron Lee Howard, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from the District Court of Stutsman County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.

James A. Teigland (argued), Fargo, N.D., and Erin M. Conroy (on brief), Bottineau, N.D., for petitioner and appellant.

Frederick R. Fremgen, State's Attorney, Jamestown, N.D., for respondent and appellee.

Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.

OPINION

Page 204

Sandstrom, Justice.

[¶1] Leron Howard appeals from a district court order denying his application for post-conviction relief. We affirm, concluding Howard failed to raise a genuine issue of material fact on his claims of ineffective assistance of counsel and prosecutorial misconduct.

I

[¶2] In 2012, a jury found Howard guilty of murder and conspiracy to commit murder. Howard appealed, arguing there was insufficient evidence to support the verdicts and the district court erred by using a multi-county jury pool and denying his pre-trial motion for change of venue. This Court affirmed the conviction in State v. Howard, 2013 ND 184, ¶ 1, 838 N.W.2d 416.

[¶3] In January 2014, Howard filed his own verified application for post-conviction relief on numerous grounds including ineffective assistance of counsel, prosecutorial misconduct, and an " unconstitutionally selected and impaneled jury." The State answered and moved to summarily dismiss Howard's application because he failed to provide support for any of his allegations.

[¶4] In February, before the district court had acted on the State's motion for summary dismissal, Howard filed a second verified application for post-conviction relief, providing greater detail in support of his claims. Howard was then assigned court-appointed counsel. In March, the State answered Howard's second post-conviction application and once again moved for summary dismissal. The district court issued a scheduling order directing the State to file a motion for summary disposition under N.D.C.C. § 29-32.1-09.

[¶5] In April, one day before the State's third motion for summary disposition, Howard supplemented his post-conviction application. The supplemental filing merely restated the claims in his application in greater detail, with no references to the record or other competent evidence. The next day, the State moved for summary disposition again, arguing Howard had failed to provide admissible evidentiary support for his allegations. In June, without conducting an evidentiary hearing, the district court granted the State's motion for summary disposition. Howard filed a timely appeal.

[¶6] The trial court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Howard's appeal is timely under N.D.R.App.P. 4(d). This Court has jurisdiction under N.D. Const. art. VI, § ...


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