from the District Court of Grand Forks County, Northeast
Central Judicial District, the Honorable Lolita G. Hartl
O. Diamond, Fargo, ND, for petitioner and appellant.
A. Gehrz (argued), and Meredith H. Larson (on brief), Grand
Forks County State's Attorney Office, Grand Forks, ND,
for respondent and appellee.
VandeWalle, Chief Justice.
James Burden appealed from orders summarily dismissing his
application for post-conviction relief and denying his motion
for relief from that dismissal. We conclude that the district
court applied the wrong standard in dismissing Burden's
application on the pleadings and that he was not given the
required time to respond to a dismissal by summary judgment.
We reverse and remand for further proceedings.
In March 2017, Burden, with assistance of counsel, pled
guilty to contributing to the deprivation of a minor and also
admitted the allegations in a separate petition to revoke his
probation for a 2013 conviction for simple assault. The
district court sentenced Burden to a term of incarceration on
the criminal charge and on the probation revocation. After a
March 2017 hearing at which Burden was given an opportunity
to address the court, the court refused to reconsider his
sentence. In September 2017, the court denied Burden's
motion to withdraw his guilty plea and his admission to the
In November 2017, Burden filed a self-represented application
for post-conviction relief, claiming ineffective assistance
of counsel relating to the guilty plea and to the probation
revocation. In November 2017, the State answered, generally
"den[ying] each and every allegation contained
therein," and "put[ting Burden] to his
proof.” The State's answer asserted the affirmative
defense of misuse of process and "move[d] for summary
disposition" on Burden's claim for post-conviction
relief under N.D.C.C. § 29-32.1-01(1)(e), which provides
that "evidence, not previously presented and heard,
exists requiring vacation of the conviction or sentence in
the interest of justice."
Burden was appointed counsel, and in February 2018, he filed
an amended application for post-conviction relief, again
claiming ineffective assistance of counsel. Burden alleged
his trial counsel failed to adequately prepare a defense and
review discovery documents with him in the criminal case and
failed to obtain and review discovery in the probation
revocation. Burden also alleged his counsel failed to timely
and adequately prepare for trial, only worked for a plea deal
in the criminal case, and failed to apprise him of delays and
obtained continuances without notifying him. Burden further
alleged his counsel failed to timely notify him of the
details of the plea agreement and failed to adequately
investigate false statements in an affidavit for an arrest
warrant. Burden alleged he was prejudiced by counsel's
representation and, but for counsel's errors, he would
not have pled guilty and would have insisted on going to
trial. The State filed an amended answer, generally denying
Burden's allegations and seeking to put him to his proof
on each and every allegation not admitted.
Burden requested a hearing on his application, and the
district court scheduled a hearing for July 23, 2018. On July
5, 2018, the State moved for summary dismissal of
Burden's application, alleging there were no genuine
issues of material fact. The State argued Burden had been put
to his proof and failed to provide any competent admissible
evidence to raise an issue of material fact supporting his
conclusory allegation of ineffective assistance of counsel.
The State's notice of motion under N.D.R.Ct. 3.2 said
oral argument was not requested and the motion would be
decided on the briefs unless oral argument was timely
On July 23, 2018, the district court granted the State's
motion for summary dismissal without an evidentiary hearing,
stating Burden "failed to respond to the motion,"
and "failed to provide competent, admissible evidence to
support his application."
Burden moved for relief from the summary dismissal under
N.D.R.Civ.P. 60 and submitted an accompanying affidavit.
Burden's affidavit described sporadic meetings with
counsel to discuss a defense to the criminal charge and
alleged false and misleading statements in an affidavit of
probable cause for the criminal charge. Burden's
affidavit also said the allegations about two missed
probation meetings were "unjustified" because he
had made up both meetings. Burden claimed he was apprised of
the details of the plea agreement only minutes before signing
the agreement and going into court and his counsel used undue
influence to push for acceptance of the plea deal without
giving him time to think about it or to talk to his family.
While Burden's motion for relief from the summary
dismissal was pending, he appealed the summary dismissal to
this Court and we issued a limited remand to the district
court for disposition of his pending motion.
On remand, the district court denied Burden's motion for
relief from the summary dismissal, stating "he failed to
provide competent admissible evidence for over eight months
after being put on notice of the State's request for
summary dismissal and being 'placed on his
proof.'" The court explained the State's
November 2017answer was sufficient to put Burden on notice to
provide competent admissible evidence to avoid summary
dismissal and he failed to do so before the State's July
5, 2018motion for summary dismissal. The court also explained
the State's motion for summary dismissal did not rely on
matters outside the pleadings and the 14-day time period for
response in N.D.R.Ct. 3.2(a)(2) applied to the motion. The
court said Burden failed to respond within 14 days after the
State filed its motion for summary dismissal and failed for
eight months to provide any competent admissible evidence in
response to ...