Martin Thomas Blackcloud, a/k/a Martin Thomas Black Cloud, Plaintiff and Appellant
State of North Dakota, Defendant and Appellee
from the District Court of Burleigh County, South Central
Judicial District, the Honorable Gail Hagerty, Judge.
O. Diamond, Fargo, ND, for plaintiff and appellant; on brief.
Spahr, Burleigh County Assistant State's Attorney,
Bismarck, ND, for defendant and appellee; on brief.
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
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
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, ...