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Kalmio v. State

Supreme Court of North Dakota

July 18, 2018

Omar Kalmio, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

          Omar M. Kalmio, self-represented, Bismarck, ND, petitioner and appellant; submitted on brief.

          Kelly A. Dillon (argued), Assistant State's Attorney, Minot, ND, for respondent and appellee.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Omar Kalmio appeals from the district court's judgment denying his application for post-conviction relief. We affirm in part, reverse in part, and remand the district court's judgment, concluding (1) the district court did not abuse its discretion in denying Kalmio's fifth and sixth motions to amend his application, (2) the district court did not err by denying Kalmio's claims related to ineffective assistance of trial counsel, and (3) the district court erred by finding Kalmio did not meet the first prong of the Strickland test relating to the representation of his appellate counsel during the direct appeal in his criminal proceedings.

         I

         [¶ 2] In 2013, Kalmio was convicted of four counts of class AA felony murder. On direct appeal, this Court affirmed the convictions in May 2014. State v. Kalmio, 2014 ND 101, ¶ 52, 846 N.W.2d 752. In his direct appeal, Kalmio argued the district court abused its discretion by allowing hearsay and prior bad acts testimony and denying his motion for mistrial due to prosecutorial misconduct. Id. at ¶ 1. This Court concluded Kalmio waived the prior bad acts testimony issue on appeal and analyzed only the district court's admission of hearsay testimony. Id. at ¶ 13. This Court determined the district court did not abuse its discretion in admitting the witnesses' hearsay testimony. Id. at ¶ 38. Kalmio also argued the State engaged in prosecutorial misconduct by showing images on presentation slides "intended to stir passions of the jury." Id. at ¶ 44. Kalmio's counsel objected to the use of images depicting a gun and red circles resembling blood, which the district court sustained and directed the jury to disregard the images. Id. at ¶ 46. This Court concluded the district court did not violate Kalmio's due process rights because the two images were not sufficiently prejudicial and the jury is presumed to follow the district court's instructions. Id. at ¶ 47. This Court also concluded there was sufficient evidence to support the verdict and affirmed Kalmio's conviction. Id. at ¶ 51.

         [¶ 3] Kalmio applied for post-conviction relief in June 2014, arguing he received ineffective assistance of counsel, the district court abused its discretion, there was newly discovered evidence, and the State engaged in prosecutorial misconduct. In July 2014, the State moved for summary disposition, arguing Kalmio did not cite to any particular or substantive errors nor raise a genuine issue of material fact. In November 2014, Kalmio submitted an amended application relying on the dissent in Kalmio, 2014 ND 101, ¶¶ 55-86, 846 N.W.2d 752 (Kapsner, J., dissenting), to argue the district court erred in allowing hearsay testimony and testimony about Kalmio's prior bad acts at trial. Kalmio argued his claim regarding prior bad acts testimony allowed at trial was not barred by res judicata because Kalmio's appellate counsel waived the argument on appeal. He also argued his appellate counsel was ineffective because of the waiver of this argument. Kalmio amended his application for the second time in February 2015, adding new arguments relating to the presentation slides presented at trial. The State again moved for summary disposition, and it included an affidavit from Kalmio's appellate counsel providing an explanation for raising certain issues on appeal while leaving "factual issues open for any subsequent post-conviction petition."

         [¶ 4] In November 2015, Kalmio filed a third amendment to his application, claiming his trial counsel was ineffective for failure to move the district court for admission of disputed presentation slides for appellate review. The State again moved for summary disposition, which the district court granted in January 2016 as it related to the claims in the second and third amendments to Kalmio's application. The district court concluded Kalmio failed to show how preserving the presentation slides would have changed the result of the proceeding in light of this Court's opinion on direct appeal. The district court then determined the only issue remaining related to ineffective assistance of appellate counsel.

         [¶ 5] In January 2016, Kalmio amended his application for the fourth time, arguing his trial counsel rendered ineffective assistance of counsel by failing to file a notice of alibi defense, contact witnesses, construct a timeline to support his defense, and call Kalmio as a witness at trial. The State again moved for summary disposition of Kalmio's fourth amended application.

         [¶ 6] On July 7, 2016, the district court held an evidentiary hearing on Kalmio's application. Kalmio's appellate counsel testified at the evidentiary hearing about practicing law in North Dakota since 1974, with the majority of his practice involving criminal defense. Kalmio's appellate counsel testified he focused on issues relating to hearsay, Kalmio's alibi, prosecutorial misconduct, and insufficiency of the evidence in Kalmio's direct appeal. His appellate counsel noted this Court determined the issue of the prior bad acts testimony was waived on appeal. Kalmio's appellate counsel believed Kalmio had a better chance of success in a post-conviction relief action than through a direct appeal. Kalmio's appellate counsel thought the hearsay issues were the strongest argument on direct appeal. Kalmio's appellate counsel testified to treading "carefully to avoid creating a res judicata issue for Mr. Kalmio by arguing too strenuously or too strongly on certain points and leaving this open for post-conviction relief." Kalmio's trial counsel also testified at the July 2016 evidentiary hearing about his representation. The district court later denied the claims relating to Kalmio's appellate counsel, and it stated his "performance and his explanation of that performance was reasonable when measured against prevailing professional norms and fell within the wide range of reasonable professional assistance." The district court concluded Kalmio failed to meet his heavy burden on the first Strickland prong and he could not meet the prejudice prong of the test.

         [¶ 7] Shortly after the July 2016 hearing, the district court partially granted the State's motion for summary disposition, and it summarily dismissed Kalmio's claims that his trial counsel provided ineffective assistance of counsel because Kalmio did not testify at trial. The district court ordered an additional evidentiary hearing on the three remaining claims against his trial counsel.

         [¶ 8] In December 2016, Kalmio, acting on his own while represented by counsel, moved to amend his application for the fifth time. In January 2017, the district court denied Kalmio's motion for a fifth amendment and prohibited further amendments. The district court determined Kalmio's only remaining claim was of ineffective assistance of counsel against his trial counsel.

         [¶ 9] In August 2017, Kalmio, through counsel, moved to amend his application for the sixth time and added new or more detailed claims against his trial counsel. The district court summarily dismissed the sixth amendment because it previously prohibited further amendments to Kalmio's application. On October 6, 2017, the district court held an evidentiary hearing in which Kalmio withdrew his remaining claims against his trial counsel. In November ...


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