from the District Court of Morton County, South Central
Judicial District, the Honorable Thomas J. Schneider, Judge.
Charles A. Stock for petitioner and appellant.
D. Grosinger for respondent and appellee.
1] Barry Roe appeals a district court order denying his
application for post-conviction relief in which he alleged he
received ineffective assistance of counsel from two attorneys
who represented him at different stages of his criminal case.
We affirm, concluding Roe was not prejudiced by his
2] The State charged Roe with two counts of gross sexual
imposition. The State's evidence included forensic
interview statements by three children, two of whom alleged
sexual abuse by Roe. During the preliminary hearing, a
detective testified to what the children said at the
interviews. The court found probable cause supported both
counts, and the case was set for trial. Prior to trial,
substitute counsel was appointed to represent Roe. During the
trial, one of the children partially recanted her sexual
abuse allegation. She altered her story to say Roe had
touched her inner thigh rather than her vaginal area.
3] A jury found Roe guilty of both charges. Roe later filed
an application for post-conviction relief, arguing his
preliminary hearing attorney and his trial attorney
ineffectively represented him. The district court denied his
application, finding neither attorney's representation
4] A person may apply for post-conviction relief on the
ground that the conviction was obtained in violation of the
United States Constitution. N.D.C.C. § 29-32.1-01(1)(a).
The Sixth Amendment guarantees that a person charged with a
crime is "entitled to effective assistance of counsel at
critical stages of criminal proceedings." Peterka v.
State, 2015 ND 156, ¶ 25, 864 N.W.2d 745 (citing
Adams v. Illinois, 405 U.S. 278, 279 (1972)). An
applicant for post-conviction relief who claims ineffective
assistance of counsel must demonstrate: (1) his counsel's
representation "fell below an objective standard of
reasonableness"; and (2) he was prejudiced by his
counsel's representation. Id. A district court
should dispose of an ineffective assistance of counsel claim
without reaching the merits of the first prong if the
applicant fails to establish prejudice. Heckelsmiller v.
State, 2004 ND 191, ¶ 4, 687 N.W.2d 454 (quoting
Strickland v. Washington, 466 U.S. 668, 697 (1984)).
5] The standard of review for a claim of ineffective
assistance of counsel in a post-conviction proceeding is
Post-conviction relief proceedings are civil in nature and
governed by the North Dakota Rules of Civil Procedure.
Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d
602. Whether a petitioner received ineffective assistance of
counsel is a mixed question of law and fact and is fully
reviewable on appeal. Klose v. State, 2005 ND 192,
¶ 10, 705 N.W.2d 809. Under N.D.R.Civ.P. 52(a), the
district court's findings of fact will not be disturbed
on appeal unless clearly erroneous. "A finding of fact
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 the finding, a
reviewing court is left with a definite and firm conviction a
mistake has been made." Heckelsmiller v. State,
2004 ND 191, ¶ 5, 687 N.W.2d 454.
Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d
900. The question before us is whether the representation of
either Roe's preliminary hearing attorney or ...