from the District Court of Williams County, Northwest
Judicial District, the Honorable Joshua B. Rustad, Judge.
Matthew J. Arthurs, Bismarck, N.D., for petitioner and
K. Madden, Assistant State's Attorney, Williston, N.D.,
for respondent and appellee.
Edward Morales appeals from a district court order summarily
dismissing his application for post-conviction relief.
Morales conditionally pled guilty to causing his wife's
death while operating a motor vehicle while under the
influence of alcohol in violation of N.D.C.C. §
39-08-01.2(1). He applied for post-conviction relief,
alleging ineffective assistance of counsel. The district
court summarily dismissed the application, reasoning that
Morales had raised only conclusory allegations and generic
claims. We affirm the district court's order.
Morales was driving a mini-van in an RV park when he collided
with a goose-neck trailer. His wife, a passenger in the
mini-van, died as a result of this collision. A blood test
indicated Morales had a 0.209 percent blood alcohol
concentration. Morales was charged with a class A felony of
causing a death while operating a motor vehicle while under
the influence of alcohol in violation of N.D.C.C. §
39-08-01.2(1). Nicole Foster was appointed as his attorney.
Before trial the State learned Morales had been convicted in
Florida of causing a death while driving under the influence,
which would require a ten year mandatory minimum sentence on
conviction for the pending charge. Morales conditionally pled
guilty and was sentenced to ten years' imprisonment, with
three years to be suspended for three years after his
release. The plea agreement preserved Morales' right to
appeal a suppression issue and avoided a mandatory minimum
sentence of ten years in prison followed by probation subject
to a mandatory 24/7 testing condition. Morales unsuccessfully
appealed his criminal judgment. See State v.
Morales, 2015 ND 230, 869 N.W.2d 417.
Morales filed a pro se post-conviction relief application.
The district court appointed counsel for Morales. Through
counsel, Morales filed an amended application and attached
his affidavit. The State moved to dismiss the application.
Morales responded to the State's motion to dismiss but
did not provide further evidence. In support of his
opposition to summary dismissal, he referenced his affidavit,
the plea hearing transcript, and the disciplinary actions and
opinions against Foster. The district court summarily granted
the State's motion to dismiss the application, concluding
Morales had raised only conclusory allegations insufficient
to defeat the motion for summary dismissal. Morales appeals.
"The issue of ineffective assistance of counsel is a
mixed question of law and fact and is fully reviewable by
this Court." Brewer v. State, 2019 ND 69,
¶ 5, 924 N.W.2d 87. "[C]laims of ineffective
assistance of counsel are ordinarily unsuited to summary
disposition without an evidentiary hearing." Horvath
v. State, 2018 ND 24, ¶ 8, 905 N.W.2d 734. "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." Stein v. State, 2018 ND 264,
¶ 5, 920 N.W.2d 477. We review an appeal from a summary
dismissal of post-conviction relief under the same analysis
as a summary judgment, id., particularly when
"matters outside the pleadings are considered."
Horvath, at ¶ 6.
The party opposing a motion for summary dismissal is entitled
to all reasonable inferences to be drawn from the evidence
and is entitled to an evidentiary hearing if a reasonable
inference raises a genuine issue of material fact. For
summary judgment purposes, the evidentiary assertions of the
party opposing the motion are assumed to be true.
Stein, at ¶ 5 (internal citation omitted). A
"genuine issue of material fact" is present if
"reasonable minds could draw different inferences and
reach different conclusions from the undisputed facts."
Leavitt v. State, 2017 ND 173, ¶ 5, 898 N.W.2d
435. But, summary dismissal is proper only after applicants
are "put to their proof, and . . . then fail to
provide some evidentiary support for their allegations."
Horvath, at ¶ 8.
The State "has the initial burden of showing an absence
of a genuine issue of material fact." Klose v.
State, 2008 ND 143, ¶ 9, 752 N.W.2d 192. The State
can discharge this burden by showing an absence of evidence
to support the applicant's claim. Id. The State
must first put the applicant to its proof by showing,
"based on reasonable inferences drawn from undisputed
facts, that reasonable minds could reach but one conclusion
regarding the allegations." Horvath, 2018 ND
24, ¶ 8, 905 N.W.2d 734. The State put Morales to his
proof by its motion to dismiss. Once the State put the
petitioner to his proof by moving for summary dismissal and
showing it is "entitled to a judgment as a matter of
law," Horvath, a t ¶ 8; Lindsey v.
State, 2014 ND 174, ¶ 15, 852 N.W.2d 383;
Klose, at ¶ 9, the burden shifted to the
applicant, who must "provide some competent evidence to
support his claim." Horvath, at ¶ 8.
However, an applicant cannot "merely rely on the
pleadings or on unsupported, conclusory allegations, but must
present competent admissible evidence by affidavit or other
comparable means which raises an issue of material
fact." Leavitt, 2017 ND 173, ¶ 5, 898
N.W.2d 435. If the applicant succeeds in providing competent
evidence, he is entitled to an evidentiary hearing.
Horvath, at ¶ 8.
When arguing ineffective assistance of counsel, the applicant
has the burden to establish grounds for relief.
Brewer, 2019 ND 69, ¶ 4, 924 N.W.2d 87. The
applicant must meet both prongs of the Strickland
test. Id. a t ¶ 5; Booth v. State,
2017 ND 97, ¶ 7, 893 N.W.2d 186; Bahtiraj v.
State, 2013 ND 240, ¶ 9, 840 N.W.2d 605; see
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Prong one is to "show that counsel's representation
fell below an objective standard of reasonableness," and
prong two is to "show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different." Brewer, at ¶ 5 (quoting
Strickland, at 688, 694). The showings "must
specify how and where counsel was incompetent and the