from the District Court of Rolette County, Northeast Judicial
District, the Honorable Michael P. Hurly, Judge.
Van Chase, self-represented, Bismarck, ND, petitioner and
appellant; submitted on brief.
J. Thompson, State's Attorney, Devils Lake, ND, for
respondent and appellee; submitted on brief.
Lorry Van Chase appeals from a district court order denying
his requested relief. On appeal, Chase argues the district
court erred by (1) considering his motion citing N.D.R.Civ.P.
60(b) as an application for post-conviction relief in order
to deny it without a hearing, (2) denying his motion on
grounds of misuse of process and res judicata, (3) finding no
corroborating evidence was presented to support Chase's
claim his attorney directed him to lie, (4) finding Chase is
bound by the unethical actions of his former counsel, and (5)
denying his motion without appointing counsel as requested.
We affirm in part, reverse in part, and remand for further
In 2014, a jury convicted Chase of gross sexual imposition.
He appealed to the North Dakota Supreme Court and the
conviction was affirmed. State v. Chase, 2015 ND
234, ¶¶ 1, 13, 869 N.W.2d 733. In September 2016,
Chase filed an application for post-conviction relief with
the assistance of post-conviction counsel, alleging
ineffective assistance of trial counsel. Specifically, Chase
claimed he received ineffective assistance of counsel because
his trial attorney: (1) failed to file a N.D.R.Ev. 412
motion; (2) failed to conduct pretrial investigation and
discovery; (3) failed to develop critical witness testimony
at trial; (4) failed to disclose a conflict of interest; and
(5) instructed Chase to lie under oath. In November 2016, the
district court denied Chase's requested relief. Chase
appealed the court's order, and this Court reversed the
order and remanded for an evidentiary hearing. Chase v.
State, 2017 ND 192, ¶ 16, 899 N.W.2d 280. After an
evidentiary hearing, the court denied Chase's application
on December 21, 2017, making findings on each specific
allegation of ineffective assistance of counsel. Chase
appealed to the North Dakota Supreme Court and the order was
summarily affirmed based on Chase's failure to supply a
transcript of the evidentiary hearing. Chase v.
State, 2018 ND 154, ¶ 1, 913 N.W.2d 774.
On November 13, 2018, Chase filed a N.D.R.Civ.P. 60(b) motion
for relief from judgment, seeking relief from the district
court's December 21, 2017 order denying post-conviction
relief, alleging his post-conviction counsel: (1) provided
ineffective assistance of counsel; (2) coached Chase to lie
at the evidentiary hearing; (3) violated ethics rules; (4)
violated the rules of appellate procedure; and (5) attempted
to cover up his errors by advising Chase not to file a
federal habeas corpus petition; and (6) attempted to convince
Chase to lie in a N.D.R.Crim.P. 35 motion. Chase also applied
for court-appointed counsel. On November 21, 2018, the State
responded, asserting the affirmative defenses of res judicata
and misuse of process. In December 2018, Chase's
previously retained attorney moved to withdraw as counsel. In
January 2019, the court denied relief on the N.D.R.Civ.P.
60(b) motion, finding the motion was actually an application
for post-conviction relief and was therefore barred by res
judicata and misuse of process. Chase appeals from the
Central to the disposition of this appeal is whether
Chase's N.D.R.Civ.P. 60(b) motion was properly classified
as a motion, or instead, as the district court found, as an
application for post-conviction relief. We have, on occasion,
considered defendants' motions as applications for
post-conviction relief when the defendant has already filed
at least one prior application for post-conviction relief.
See State v. Atkins, 2019 ND 145, ¶ 10, 928
N.W.2d 441 (holding defendant's motion to withdraw his
guilty plea was actually his third application for
post-conviction relief when he had previously filed two
applications for post-conviction relief); State v.
Gress, 2011 ND 233, ¶ 6, 807 N.W.2d 567 (holding
defendant's motion to withdraw his guilty plea was
actually his second application for post-conviction relief
when he had already filed one application for post-conviction
relief). We have encountered parties seeking to evade the
boundaries of post-conviction proceedings by filing motions
under the Rules of Criminal Procedure under the guise of
We hold that a defendant may not avoid the procedures of the
Uniform Postconviction Procedure Act by designating his
motion under a rule of criminal procedure or by filing his
motion in his criminal file, rather than filing as a new
action for post-conviction relief.
Atkins, 2019 ND 145, ¶ 11, 928 N.W.2d 441
(relying on N.D.C.C. § 29-32.1-01(4)). Section
29-32.1-01(4), N.D.C.C, states:
A proceeding under this chapter is not a substitute for and
does not affect any remedy incident to the prosecution in the
trial court or direct review of the judgment of conviction or
sentence in an appellate court. Except as otherwise provided
in this chapter, a proceeding under this chapter replaces all
other common law, statutory, or other remedies available
before July 1, 1985, for collaterally challenging the
validity of the judgment of conviction or sentence. It is to
be used exclusively in place of them. A proceeding under this
chapter is not available to provide relief for disciplinary
measures, custodial treatment, or other violations of civil
rights of a convicted person occurring after the imposition
reading his documents generously, Chase's only allegation
conceivably appropriate for a N.D.R.Civ.P. 60(b) motion is
his argument that his attorney's representation amounted
to fraud under N.D.R.Civ.P. 60(b)(3). However, his claim that
N.D.R.Civ.P. 60(b)(3) applies is meritless because ...