from the District Court of Williams County, Northwest
Judicial District, the Honorable Paul W. Jacobson, Judge.
A. Gereszek, for petitioner and appellant.
K. Madden, Assistant State's Attorney, Williston, N.D.
for respondent and appellee.
1] Jimmy Booth, Jr., appeals from a judgment denying his
application for postconviction relief based on allegations of
ineffective assistance of counsel. We affirm because Booth
failed to establish that he was prejudiced by the allegedly
deficient performance of his counsel.
2] Booth pled guilty to manufacturing a controlled substance,
possession of a controlled substance, possession of drug
paraphernalia, and four counts of endangerment of a child.
Booth, accompanied by his attorney, agreed with the factual
basis presented for the plea. The district court accepted the
plea agreement and sentenced Booth to ten years of
incarceration on each count to be served concurrently, with
credit for time served. Booth timely moved for reduction of
his sentence. The court denied the motion.
3] Booth then moved to correct an illegal sentence under
N.D.R.Crim.P. 35(a)(1), arguing his sentence was illegal
because the State gave him only a one-day notice of its
intention to seek habitual offender sentence enhancement
under N.D.C.C. § 12.1-32-09. The district court denied
the motion and this Court affirmed in State v.
Booth, 2015 ND 59, 861 N.W.2d 160. This Court concluded
"the one-day notice was reasonable" and "Booth
did not suffer prejudice resulting from the State's
one-day notice of intent to seek the habitual offender
sentence enhancement." Id. at ¶ 6.
Booth's voluntary guilty plea waived any challenge to
such procedural defects. Id. at ¶ 8.
4] Booth then filed a pro se application for postconviction
relief under N.D.C.C. ch. 29-32.1, claiming he received
ineffective assistance of counsel leading up to his guilty
plea. Booth alleged his attorney failed to: 1) determine
whether the evidence seized during a search "was
properly received into custody (chain of custody) in a timely
and legal manner"; 2) conduct an investigation to
determine whether (a) he was unconstitutionally detained, (b)
he was informed of his Miranda rights, (c) the State
Laboratory had tested the evidence, (d) the evidence belonged
to someone else, and (e) his DNA or fingerprints were found
on the evidence; 3) conduct a "complete investigation of
all relevant facts" before advising him to plead guilty;
4) promptly comply with his requests for information as
required by N.D.R. Prof. Conduct 1.4; and 5) represent him
competently under the North Dakota Rules of Professional
Conduct. Booth claimed he was prejudiced because he
"would have more thoughtfully considered trying the case
before a jury, " and he "would not have plead
guilty, but for the advice of Counsel." The district
court appointed counsel for Booth, who filed a supplement to
the petition, additionally claiming: 1) the court had failed
to follow N.D.R.Crim.P. 11 procedures because Booth was not
informed of his right to counsel when he entered the guilty
plea; and 2) Booth's guilty plea was not knowingly and
5] The district court held an evidentiary hearing where it
heard testimony from Booth and his attorney in the underlying
criminal matter. Booth raised other issues at the hearing and
testified he would not have pled guilty if his attorney had
competently advised him. Booth's attorney explained his
handling of the case and testified Booth wanted to plead
guilty and "had more desire to dispose of his case
th[a]n most clients do." The court denied Booth's
application for postconviction relief, concluding the claims
of noncompliance with N.D.R.Crim.P. 11 and his allegedly
involuntary guilty plea could have been raised in the
proceedings leading to Booth, 2015 ND 59, 861 N.W.2d
160, and were therefore barred by N.D.C.C. §
29-32.1-12(2)(a) as a misuse of process. The court rejected
the remainder of Booth's claims because he presented no
evidence of a "reasonably probable different
outcome" and had therefore failed to establish prejudice
resulted from his trial counsel's alleged errors.
6] On appeal, Booth does not challenge the district
court's rulings on the issues barred by misuse of
process, but argues the court erred in denying his
application for postconviction relief because he established
ineffective assistance of counsel.
7] The framework for evaluating ineffective assistance of
counsel claims under the Sixth Amendment of the United States
Constitution and N.D. Const. art. I, § 12, is
In order to prevail on a post-conviction relief application
based on ineffective assistance of counsel, the petitioner
must (1) "show that counsel's representation fell
below an objective standard of reasonableness" and (2)
"show that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have ...