Haruna Muntari Giwa, a.k.a. Harona Montari Giwa, Petitioner and Appellant
State of North Dakota, Respondent and Appellee
from the District Court of Stark County, Southwest Judicial
District, the Honorable Rhonda Rae Ehlis, Judge.
L. Mrstik, Dickinson, ND, for petitioner and appellant.
W. Roseland, State's Attorney, Hettinger, ND for
respondent and appellee.
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.
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.
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.
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 ...