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Giwa v. State

Supreme Court of North Dakota

October 17, 2017

Haruna Muntari Giwa, a.k.a. Harona Montari Giwa, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable Rhonda Rae Ehlis, Judge.

          Joseph L. Mrstik, Dickinson, ND, for petitioner and appellant.

          Aaron W. Roseland, State's Attorney, Hettinger, ND for respondent and appellee.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Haruna Muntari Giwa appeals a summary dismissal of his application for post-conviction relief based on a newly adopted rule of criminal procedure. We affirm the district court's order summarily dismissing Giwa's application for post-conviction relief.

         I

         [¶ 2] Giwa pleaded guilty to interference with a telephone during an emergency call, and the district court entered the criminal judgment on November 17, 2015. Giwa is not a citizen or permanent resident of the United States. Giwa was paroled into the United States in November 2014. On February 11, 2016, the Department of Homeland Security ("DHS") terminated Giwa's parole status. According to Giwa's counsel, he has since been deported.

         [¶ 3] As part of his guilty plea, Giwa signed an acknowledgment of rights, waiver of appearance, plea agreement, and plea on November 16, 2015. The acknowledgment of rights Giwa signed included that he understood he had the right to remain silent, right to counsel, right to a jury trial, and right to cross-examine witnesses and present evidence. However, the acknowledgment and plea documents did not include information about the possible immigration consequences if Giwa was not a United States citizen.

         [¶ 4] On June 16, 2016, Giwa applied for post-conviction relief, arguing he was not advised of "the right to a jury trial, the right to cross-examine adverse witnesses, the right to be protected from compelled self-incrimination or to testify and present evidence." The State moved for summary disposition and dismissal. In September 2016, Giwa filed an affidavit repeating these allegations as part of his opposition to the State's motion for summary disposition and dismissal. Giwa also argued he was not informed of the potential immigration status consequences if he pleaded guilty to interference with a telephone during an emergency call. Further, Giwa contends he did not know DHS would terminate his parole and detain him due to pleading guilty to a crime. On March 14, 2017, the district court held a hearing on the State's motion for summary disposition.

         [¶ 5] The district court denied Giwa's application for post-conviction relief and granted the State's motion for summary disposition under N.D.C.C. § 29-32.1-09. In granting the State's motion, the district court determined Giwa acknowledged his rights, including the waiver of his right to counsel. Additionally, the district court concluded the addition of N.D.R.Crim.P.11(b)(1)(j) did not apply retroactively, meaning neither the State nor the district court had an obligation to inform Giwa about the effect of a guilty plea on his immigration status.

         II

         [¶ 6] On appeal from the summary dismissal of an application for post-conviction relief, this Court "construes the application in the light most favorable to the applicant and accepts the well-pleaded allegations as true." Greywind v. State, 2015 ND 231, ¶ 7, 869 N.W.2d 746 (quoting Wong v. State, 2010 ND 219, ¶ 9, 790 N.W.2d 757). This Court "will affirm a dismissal for failure to state a claim if it would be impossible for the applicant to prove a claim for which relief can be granted." Id. A district court's findings of fact in post-conviction relief proceedings will not be disturbed unless they are clearly erroneous. Greywind v. State, 2004 ND 213, ¶ 5, 689 N.W.2d 390. Additionally, questions of law are fully reviewable. Id.

         A

         [¶ 7] Giwa argues this Court should apply N.D.R.Crim.P. 11(b)(1)(j) because "[a] significant change in substantive or procedural law has occurred which, in the interest of justice, should be applied retrospectively." N.D.C.C. § 29-32.1-01(1)(f). Giwa also argues the amendment to Rule 11 is a "'watershed' rule of criminal procedure whose non-application would seriously diminish the likelihood of an accurate conviction or which requires the observance of procedures that are implicit in the concept of ordered liberty." Clark v. State, 2001 ND 9, ¶ 6, 621 N.W.2d 576 (citing Teague v. Lane, 489 U.S. 288, 311 (1989)). In Teague, the United States Supreme Court noted these "watershed" rules of criminal ...


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