Blackcloud v. State

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail Hagerty, Judge. AFFIRMED.

          Scott O. Diamond, Fargo, ND, for plaintiff and appellant; on brief.

          Marina Spahr, Burleigh County Assistant State's Attorney, Bismarck, ND, for defendant and appellee; on brief.

          OPINION

          Jensen, Justice.

         [¶ 1] Martin Blackcloud, also known as Martin Black Cloud, appeals the district court's order denying Blackcloud's application for post-conviction relief. We affirm the district court's order.I

         [¶ 2] In April 2014, Blackcloud was convicted of gross sexual imposition, in which the victim was his girlfriend's daughter. Blackcloud previously appealed that criminal judgment to this Court based on an alibi defense, and this Court summarily affirmed the criminal judgment. State v. Blackcloud, 2015 ND 108, ¶ 1, 865 N.W.2d 124.

         [¶ 3] Blackcloud applied for post-conviction relief in November 2016, arguing his trial counsel was ineffective. In his application, Blackcloud argued his trial counsel failed to file a notice of alibi defense and failed to object to the lack of specificity in the charging information. Blackcloud also alleged his trial counsel failed to effectively cross-examine the State's expert witnesses regarding possible contamination of the DNA evidence found on the victim. Additionally, Blackcloud argued his trial counsel failed to impeach the victim's mother's trial testimony or introduce evidence of her weight gain, which he claims would have supported his defense that the victim and the mother shared clothing.

         [¶ 4] After holding an evidentiary hearing where both Blackcloud and his trial counsel testified, the district court denied Blackcloud's application for post-conviction relief. The district court determined this Court summarily affirmed Blackcloud's conviction on direct appeal, in which he argued the State did not present sufficient evidence to overcome his alibi defense. Blackcloud, 2015 ND 108, ¶ 1, 865 N.W.2d 124. The district court also concluded the charging document was sufficiently specific to advise Blackcloud of the charge against him and enable him to prepare for trial. The district court further determined the assistance of Blackcloud's trial counsel was not deficient.

         II

         [¶ 5] On appeal, Blackcloud argues the district court erred in denying his application for post-conviction relief because he received ineffective assistance of counsel, and the district court abused its discretion in excluding a photograph from evidence at the post-conviction relief hearing. Blackcloud argues his trial counsel failed to properly investigate the mother of the victim's weight gain and locate the photograph he offered at the evidentiary hearing. Blackcloud contends his counsel's assistance was deficient because he should have further pursued Blackcloud's defense theory that the victim and her mother shared clothing, which could have explained Blackcloud's DNA on the victim's underwear. This Court acknowledged:

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, 92 S.Ct. 916, 31 L.Ed.2d 202 (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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

The standard of review for a claim of ineffective assistance of counsel in a post-conviction proceeding is well-established:

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.

Roe v. State, 2017 ND 65, ¶¶ 4-5, 891 N.W.2d 745 (quoting Clark v. State, 2008 ND 234, ¶ 11, ...