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Jensen v. State

Supreme Court of North Dakota

May 16, 2019

Randy Jensen, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

          Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lolita G. Hartl Romanick, Judge.

          Caitlyn A. Pierson, Minot, ND, for petitioner and appellant.

          Andrew C. Eyre, Assistant State's Attorney, Grand Forks, ND, for respondent and appellee.

          OPINION

          MCEVERS, JUSTICE.

         [¶1] Randy Jensen appeals from a district court order denying and dismissing his application for post-conviction relief. We affirm the district court's order concluding the district court did not abuse its discretion in denying Jensen's application for post-conviction relief. We decline to address Jensen's remaining issues, as they were not adequately raised in the district court.

         I

         [¶2] In June 2016, Jensen resolved three criminal cases by pleading guilty to several charges pursuant to a plea agreement under N.D.R.Crim.P. 11(c), and several charges were dismissed. In July 2016, Jensen appealed the criminal judgments and was assigned court-appointed counsel. In September 2016, Jensen's court-appointed counsel filed a stipulation to withdraw and dismiss the appeals, signed by Jensen and his court-appointed counsel.

         [¶3] In October 2016, Jensen, through counsel, filed a motion for reduction of sentence under N.D.R.Crim.P. 35(b) in each case. The district court denied his motions. In November 2016, Jensen filed a pro se motion to withdraw his guilty plea in each case. The court denied his motions. In December 2016, Jensen filed an amended motion in each case to withdraw his guilty pleas under N.D.R.Crim.P. 11(d). In February 2017, the court denied his motions following a hearing. In April 2017, Jensen, pro se, filed a motion for credit for time served. The court denied his motion. After the court issued its order denying his motion, court-appointed counsel requested and was granted a hearing to address Jensen's motion for credit for time served. Following that hearing, the court again denied his motion for credit for time served.

         [¶4] In March 2018, Jensen, pro se, applied for post-conviction relief alleging ineffective assistance of counsel as his only ground for relief. The State replied and moved to dismiss his application based on res judicata and misuse of process. In his reply to the State's motion, Jensen elaborated on his assertion that he received ineffective assistance of counsel by stating his attorney filed the Rule 35(b) motion without his consent and failed to communicate with him regarding possibly exculpatory CD evidence during the course of the Rule 11(d) motion to withdraw his plea proceedings. In May 2018, the district court issued an order granting the State's motion to dismiss the application with respect to the issue of the CD evidence finding that claim was barred by res judicata and was a misuse of process, but denying the State's motion to dismiss the application with respect to Jensen's claim of ineffective assistance of counsel as it related to Jensen's attorney during prior "post-conviction proceedings," as that issue had not previously been litigated. The State again moved to dismiss Jensen's claim for ineffective assistance of counsel as it related to Jensen's attorney on the Rule 35(b) and Rule 11(d) motions, arguing the claim was prohibited by N.D.C.C. § 29-32.1-09(2), which bars claims of constitutionally ineffective assistance of post-conviction counsel in proceedings under N.D.C.C. ch. 29-32.1. Jensen responded through counsel, requesting an evidentiary hearing on the post-conviction claim for ineffective assistance of counsel. In June 2018, the court issued an order granting the State's motion to dismiss Jensen's application for post-conviction relief, in its entirety. The court found Jensen's claim for ineffective assistance of counsel was barred by N.D.C.C. § 29-32.1-09(2) as the attorney was Jensen's post-conviction counsel. In its order dated June 22, 2018, the court requested the presiding judge of the Northeast Central Judicial District consider issuing an order restricting Jensen's future filings under N.D. Sup. Ct. Admin. R. 58 as a vexatious litigant.

         [¶5] On June 26, 2018, Jensen was served with a proposed pre-filing order as required by N.D. Sup. Ct. Admin. R. 58. On July 10, 2018, Jensen responded in writing to the district court's proposed pre-filing order stating, "I do not agree" as his only basis for objecting. On July 11, 2018, the presiding judge issued a N.D. Sup. Ct. Admin. R. 58 pre-filing order finding Jensen a vexatious litigant.

         [¶6] On appeal, Jensen argues the district court (1) erred in denying his application for post-conviction relief under N.D.C.C. § 29-32.1-09 without a hearing because his claim of ineffective assistance of counsel concerned his counsel's mistakes relating to filing Rule 35(b) and Rule 11(d) motions, both of which fall under the North Dakota Rules of Criminal Procedure, not the Uniform Postconviction Procedure Act, and (2) abused its discretion in considering prior criminal filings when issuing the vexatious litigant pre-filing order under N.D. Sup. Ct. Admin. R. 58, and Rule 58 as applied to him is overly broad.

         II

         [¶7] "A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Lehman v. State, 2014 ND 103, ¶ 4, 847 N.W.2d 119. "Questions of law are fully reviewable on appeal of a post-conviction proceeding." Id. This Court reviews an appeal from a summary denial of post-conviction relief as it would review an appeal from a summary judgment. Stein v. State, 2018 ND 264, ¶ 5, 920 N.W.2d 477. A party opposing a motion for summary dismissal is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and ...


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