Wheeler v. State

20070163 LeRoy K. Wheeler Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee

Appeal from: District Court, Northeast Central Judicial District, Grand Forks County
Judge Debbie Gordon Kleven
Nature of Action: Post-Conviction Relief
Counsel:
Appellant: Pro se
Appellee: Mark Jason McCarthy , Asst. State's Attorney
Term: 11/2007   Argument: 11/06/2007  2:45pm
ND cite: 2008 ND 109
NW cite: 750 N.W.2d 446

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Issues: Appellant's Statement of the Issues:
1. The trial court erred in denying an evidentiary hearing when Wheeler raised a reasonable inference to a genuine issue of material fact of juror partiality, where said juror made false statement about her knowledge of Wheeler during voir-dire and an evidentiary hearing is warranted to establish a record for appellate review.
2. The trial court erred in neglecting to issue subpoena's for Wheeler to support his claim of juror misconduct because the material is not part of the record after Wheeler showed the trial court that the needed material must be subpoenaed to show the juror lied on voir-fire examination.

Appellee's Statement of the Issues:
I. Whether the district court erred by dismissing the request for post-conviction relief when the applicant inexcusably failed to raise the issue in the proceeding leading to judgment of conviction and sentence?
II. Whether the district court erred by dismissing the request for post-conviction relief when the issue raised is merely a variation of an issue previously addressed on direct appeal

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Docket entries:
106/11/2007 NOTICE OF APPEAL: 06/08/2007
206/11/2007 This case is consolidated w/20070164 & 20070165. Make all entries except DIS and MAN in this case.
307/12/2007 APPELLANT BRIEF
407/12/2007 Attached addendum to Appellant's Brief
507/12/2007 APPELLANT APPENDIX
607/12/2007 RECORD ON APPEAL (3 vols.), Transcripts (5), & Exhibits (NOT REC'D: 3 & 3--tapes; 27,36,44,100,
707/12/2007 176,251,287,355,&356--steno notes; and 279-Digital Recording
808/14/2007 APPELLEE BRIEF (e-filed)
908/14/2007 E-FILED BRIEF (AEB)
1008/14/2007 APPELLEE APPENDIX (e-filed)
1108/14/2007 E-FILED APPENDIX (AEA)
1208/16/2007 Received $25 surcharge for AEB (Receipt #17650)
1308/22/2007 Received 7 copies of AEB from Central Duplicating
1408/22/2007 Received 6 copies of AEA from Central Duplicating
1510/16/2007 DISK NONCOMPLIANCE - ATB (AT is incarcerated no access to computer)
1611/06/2007 APPEARANCES: LeRoy K. Wheeler; M. Jason McCarthy, Asst. State's Attorney
1711/06/2007 ARGUED: Wheeler; McCarthy
1811/06/2007 ORAL ARGUMENT WEBCAST
1906/05/2008 DISPOSITION: AFFIRMED
2006/05/2008 UNANIMOUS OPINION: Kapsner, Carol Ronning
2106/06/2008 Judgment Mailed to Parties
2206/18/2008 PETITION FOR REHEARING (scanned)
2306/18/2008 DISK NONCOMPLIANCE (Pet/Rehearing) (scanned)
2406/26/2008 ACTION BY SUPREME COURT (PER). Denied
2507/09/2008 MANDATE
2607/16/2008 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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