Appeal from the District Court of Griggs County, Southeast Judicial District, the Honorable Jerod E. Tufte, Judge.
Mark T. Blumer, Fargo, N.D., for petitioner and appellant.
Jayme J. Tenneson (argued), Nelson County State's Attorney, Lakota, N.D., and Jonathan R. Byers (appeared), Office of the Attorney General, Bismarck, N.D., for respondent and appellee.
Gerald W. VandeWalle, C.J., Carol Ronning Kapsner, Lisa Fair McEvers, Daniel J. Crothers, Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice.
Gerald W. VandeWalle, Chief Justice.
[¶1] Daniel Evan Wacht appealed from a district court order summarily dismissing his application for postconviction relief. We conclude the court did not err in summarily dismissing Wacht's claims for ineffective assistance of counsel and for relief based on newly discovered evidence. We affirm.
[¶2] Wacht was convicted by a jury in 2012 of the murder of Kurt Johnson. He was sentenced to life imprisonment without the possibility of parole. His conviction was affirmed in State v. Wacht, 2013 ND 126, 833 N.W.2d 455.
[¶3] Wacht applied for postconviction relief claiming he received ineffective assistance of counsel and newly discovered evidence showed a State's witness fabricated his trial testimony. Wacht claimed he received ineffective assistance of counsel because his trial attorney was unable to remove a juror who was distantly related to Johnson through marriage. Wacht also claimed his attorney failed to object to the admission of a pair of latex gloves at trial.
[¶4] Wacht claimed Jason Bolstad, a State's witness, fabricated information and falsely testified at Wacht's trial. To support this claim, Wacht included affidavits from Shane Patrick Miller and George H. Paquette, who were incarcerated with Bolstad at the James River Correctional Center when Bolstad testified. Miller's affidavit stated Bolstad told him he made up most of his testimony, because " [Wacht] was going to get convicted anyway, so I came up with some bullshit story to help myself and my family." Paquette's affidavit stated Bolstad told him:
" That he was in prison for drug trafficking, and that the Federal Government might also indict him." I told him that I was in a similar situation, he said to me; " That I could probably get help from the state's attorney, all I had to do was testify against someone." I responded to him that not only did I not know anyone to testify against, and that I wouldn't do so even if I did. Jason Bolstad persisted by saying; " That there are plenty of other inmates around here with open cases, you just had to get a little . . . information to make yourself credible, and then make the rest up, that the state's attorney will tell you what they need you to say and how to answer all the questions anyway." He added; " These people are going to get convicted anyway, so you might as well help yourself out."
[¶5] The State moved to dismiss Wacht's application, arguing the issues related to his ineffective assistance of counsel claims were argued and rejected on direct appeal, and Bolstad's trial testimony was supported by physical evidence. The district court granted the State's motion and ...