Post-Conviction Relief

Klose v. State , 2008 ND 143, 752 N.W.2d 192
Summary dismissal of an application for post-conviction relief is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
Raising an issue in a second post-conviction application that could have been raised in a prior post-conviction application or other proceeding is a misuse of process.
To show ineffective assistance of post-conviction counsel, a post-conviction applicant must show post-conviction counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
A stipulation to certain factual elements of an offense is not a guilty plea.
Sambursky v. State , 2008 ND 133, 751 N.W.2d 247
A defendant claiming ineffective assistance of counsel has a heavy burden of proving (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal.
Murphy v. State , 2008 ND 124,
Order denying post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(4).
Allen v. State , 2008 ND 127,
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).
Olson v. State , 2008 ND 113, 750 N.W.2d 459
A petitioner seeking post-conviction relief through DNA testing of evidence must present a prima facie case showing the evidence to be tested has been subject to a sufficient chain of custody.
To establish a prima facie case, the petitioner must present testimony or otherwise show that evidence still exists and has not been substituted, tampered with, replaced, or altered in any material respect.
Wheeler v. State , 2008 ND 109, 750 N.W.2d 446
An applicant for post-conviction relief has the burden of establishing grounds for relief.
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.
In a post-conviction proceeding, the district court, for good cause, may grant leave to either party to use the discovery procedures available in criminal or civil proceedings. Discovery procedures may be used only to the extent and in the manner the court has ordered or to which the parties have agreed.
Voisine v. State , 2008 ND 91, 748 N.W.2d 429
Conditions of probation are strictly construed in favor of the offender; however, the conditions are construed as mandatory because of the duty to regulate a probationer's activities to help in his or her rehabilitation and at the same time to guard against continued criminal behavior.
A probation condition is not violated during incarceration if the condition unambiguously is not effective until release.
Mulske v. State , 2008 ND 46, 747 N.W.2d 136
A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).
Heyen v. State , 2008 ND 45, 747 N.W.2d 136
A district court order denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Patten v. State , 2008 ND 29, 745 N.W.2d 626
A lawyer must abide by a competent defendant's decision regarding the plea to be entered.
If a defendant is competent and voluntarily pleads guilty, the defendant waives the right to raise the defense of lack of criminal responsibility when the acts occurred.
Bertram v. State , 2008 ND 24, 747 N.W.2d 136
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).
Oie v. State , 2007 ND 172, 742 N.W.2d 839
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Roth v. State , 2007 ND 112, 735 N.W.2d 882
To prove an ineffective assistance claim based on counsel's failure to move to suppress evidence, the petitioner must show that he would have prevailed on the suppression motion and that there is a reasonable probability the successful motion would have affected the outcome.
The "reasonable cause" standard contained in N.D.R.Crim.P. 41(c)(1)(E) focuses on the necessity for executing the search warrant in the nighttime rather than in the daytime.
A nighttime searches may be upheld when there is particularized evidence of drug trafficking, sales, or manufacture which occurred late at night or in the early morning hours.
Steen v. State , 2007 ND 123, 736 N.W.2d 457
A petitioner for post-conviction relief has the burden of establishing grounds for post-conviction relief.
An application for post-conviction relief may be denied on grounds of res judicata and misuse of process.
Post-conviction relief may be denied as res judicata if the same claim or claims were fully and finally determined in a previous proceeding. Misuse of process occurs when the applicant inexcusably fails either to raise a claim in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding, or if the applicant files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.
Noorlun v. State , 2007 ND 118, 736 N.W.2d 477
In a post-conviction proceeding, a misuse of process occurs if a defendant has inexcusably failed to raise an issue in a proceeding leading to a conviction and seeks review in an application for post-conviction relief, or if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceeding.
A defendant claiming ineffective assistance of counsel has a heavy burden of proving that counsel's representation fell below an objective standard of reasonableness and that the defendant was prejudiced by counsel's deficient performance.
Rahn v. State , 2007 ND 121, 736 N.W.2d 488
An order denying a motion to correct an illegal sentence under N.D.R.Crim.P. 35(a) is appealable, but an order denying a motion for reduction of sentence under N.D.R.Crim.P. 35(b) is not appealable.
Post-conviction proceedings under N.D.C.C. ch. 29-32.1 may not be used to challenge the Department of Corrections' failure to provide medical treatment to an inmate.
Moore v. State , 2007 ND 96, 734 N.W.2d 336
Post-conviction relief may be granted when "[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice."
When a defendant applies for post-conviction relief to withdraw a guilty plea, the application is treated as one made under N.D.R.Crim.P. 32(d), and withdrawal is allowed when necessary to correct a manifest injustice.
Hernandez v. State , 2007 ND 92, 734 N.W.2d 342
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (7).
White Mountain v. State , 2007 ND 72, 734 N.W.2d 343
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Leftbear v. State , 2007 ND 14, 727 N.W.2d 252
The time limit for filing a notice of appeal is jurisdictional.
The time limit for filing a notice of appeal may be extended only upon a showing of excusable neglect.
Excusable neglect is a fluid concept, encompassing both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.
Ignorance of the rules, or mistakes construing the rules, are insufficient to establish excusable neglect.
Otto v. State , 2006 ND 233, 725 N.W.2d 588
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Sambursky v. State , 2006 ND 223, 723 N.W.2d 524
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.
If the petitioner raises an issue of material fact in resisting summary dismissal of an application for post-conviction relief, the petitioner is entitled to an evidentiary hearing on the matter.
In a post-conviction relief proceeding alleging the ineffective assistance of counsel with respect to a guilty plea, counsel is ineffective if a claimant can show that counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's errors, the petitioner would not have pleaded guilty and would have insisted on going to trial.
Rummer v. State , 2006 ND 216, 722 N.W.2d 528
The petitioner has the burden of establishing grounds for post-conviction relief.
In order to prevail on a post-conviction claim for ineffective assistance of counsel, the petitioner has the heavy burden of proving: (1) counsel's representation fell below an objective standard of reasonableness, and (2) the defendant was prejudiced by counsel's deficient performance.
To establish a Brady violation, the defendant must prove: (1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.
A foreign-national criminal defendant may waive any right to consular notification by failing to timely raise the issue.
Ernst v. State , 2006 ND 203, 725 N.W.2d 588
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (6), and (7).
Kunze v. State , 2006 ND 112, 719 N.W.2d 384
District court's summary denial of a motion for an evidentiary hearing on post-conviction relief and denial of a motion to vacate criminal judgments is affirmed under N.D.R.App.P. 35.1(a)(2) and (6).
Gust v. State , 2006 ND 114, 714 N.W.2d 826
A defendant has the burden to show he is entitled to additional credit for time served in custody.
A defendant is not entitled to credit for time spent in custody for both a separate criminal offense and a new sentence following a parole revocation.
Johnson v. State , 2006 ND 122, 714 N.W.2d 832
The affirmative defense of laches is proper in post-conviction proceedings.
For the affirmative defense of laches to prevail, the State must prove, by a preponderance of the evidence, that (1) the petitioner has unreasonably delayed in seeking relief, and that (2) the delay has prejudiced the State.
Roth v. State , 2006 ND 106, 713 N.W.2d 513
Claiming ineffective assistance of trial and appellate counsel for the first time in the first post-conviction relief application is not misuse of process.
Kaiser v. State , 2006 ND 92, 719 N.W.2d 384
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Clifford v. Redmann , 2006 ND 93, 719 N.W.2d 384
Order denying petition for writ of habeas corpus is dismissed as an unappealable order.
Dismissal of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Flanagan v. State , 2006 ND 76, 712 N.W.2d 602
An application for post-conviction relief may be denied as res judicata if the claim is a variation of a claim that was fully and finally determined in a previous proceeding.
A defendant claiming ineffective assistance of counsel must establish counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To establish prejudice, a defendant must establish a reasonable probability that but for counsel's errors the result of the criminal proceeding would have been different, and a reasonable probability is a probability sufficient to undermine confidence in the outcome of the criminal proceeding.
Murphy v. State , 2006 ND 80, 719 N.W.2d 384
Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Krall v. State , 2006 ND 51, 711 N.W.2d 606
Denial of applications for post-conviction relief and motions for default judgment are summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Parizek v. State , 2006 ND 61, 711 N.W.2d 178
Before the district court may summarily dismiss an application for post-conviction relief, the State's response to the application must be sufficient to put the applicant on his proof, shifting the burden to require the applicant to produce competent evidence to support his claims prior to the evidentiary hearing.
To justify summary dismissal of an application for post-conviction relief, the district court must find the applicant's claims invalid on their face.
Causer v. State , 2006 ND 43, 711 N.W.2d 606
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (7).
Moore v. State , 2006 ND 8, 711 N.W.2d 606
Denial of application for post-conviction relief and order quashing a subpoena is summarily affirmed under N.D.R.App.P. 35.1(a)(1), (2), and (4).
Bates v. State , 2006 ND 9, 711 N.W.2d 606
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Dunn v. State , 2006 ND 26, 709 N.W.2d 1
A motion for summary dismissal under the Uniform Post-Conviction Relief Act is akin to a motion for summary judgment.
Thirty days' response time is allowed following motions for summary dismissal under the Uniform Post-Conviction Relief Act.
Summary dismissal is appropriate if the petitioner in a post-conviction relief action fails to raise a genuine issue of material fact.
Wright v. State , 2005 ND 217, 707 N.W.2d 242
A defendant alleging ineffective assistance of counsel must prove counsel's representation fell below an objective standard of reasonableness and the defendant was prejudiced by counsel's deficient performance.
To demonstrate prejudice resulting from counsel's deficient performance, a defendant must establish a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.
Matthews v. State , 2005 ND 202, 706 N.W.2d 74
Conclusory allegations that counsel failed to call certain witnesses without indicating what the testimony would have been, how it might have affected the outcome of the trial, or what prejudice may have resulted from the failure to call them, do not support a claim of ineffective assistance of counsel.
Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.
Johnson v. State , 2005 ND 197, 709 N.W.2d 21
Conviction of contact by bodily fluids is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Klose v. State , 2005 ND 192, 705 N.W.2d 809
An appellant failing to file a trial transcript on appeal assumes the risks and consequences of such failure.
Laib v. State , 2005 ND 187, 705 N.W.2d 845
A defendant who has inexcusably failed to raise an issue on a prior direct appeal may not raise the issue in a subsequent application for post-conviction relief.
A defendant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and that the defendant was thereby prejudiced.
To demonstrate prejudice from ineffective representation, the defendant must establish a reasonable probability that, but for counsel's alleged errors, the result of the proceeding would have been different.
Johnson v. State , 2005 ND 188, 705 N.W.2d 830
A motion for summary disposition of an application for post-conviction relief asking the court to rely solely on the pleadings is treated like a N.D.R.Civ.P. 12(b) motion, and under Rule N.D.R.Ct. 3.2(a), a ten-day response time should be provided the non-moving party before the trial court rules.
A motion for summary disposition of an application for post-conviction relief asking the court to go beyond the face of the pleadings is treated like a N.D.R.Civ.P. 56 motion, and under N.D.R.Ct. 3.2, the non-moving party in a motion for summary judgment has thirty days to respond.
Eagleman v. State , 2005 ND 164, 704 N.W.2d 573
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Sayler v. State , 2005 ND 166, 704 N.W.2d 559
Ineffective assistance of counsel claims require a defendant to show that counsel's representation was objectively unreasonable and that the defendant was prejudiced by counsel's deficient performance.
A defendant must offer evidence of how any additional witnesses would have aided the defense's claim.
Syvertson v. State , 2005 ND 128, 699 N.W.2d 855
When establishing a Brady violation, the knowledge of the North Dakota State Hospital is not imputed to the State's Attorney's Office.
Information publicly disseminated in a newspaper article is not newly discovered evidence.
Johnson v. State , 2005 ND App 8, 700 N.W.2d 723
An application for post-conviction relief may be denied on the grounds of res judicata and misuse of process.
Whether there has been a manifest injustice supporting withdrawal of a guilty plea lies within the trial court's discretion.
To succeed on a claim of ineffective assistance of counsel, a defendant must prove counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
Berlin v. State , 2005 ND 110, 698 N.W.2d 266
A court may summarily dismiss a facially invalid application for post-conviction relief.
Kastrow v. State , 2005 ND 58, 694 N.W.2d 22
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Gamboa v. State , 2005 ND 48, 693 N.W.2d 21
In post-conviction relief proceedings, it is not an abuse of discretion to deny default judgment when a petitioner cannot show he suffered any prejudice from the State's untimely response.
Post-conviction relief applications seeking withdrawal of a guilty plea must be made in a timely manner in accordance with Rule 32, N.D.R.Crim.P.
Kaiser v. State , 2005 ND 49, 693 N.W.2d 26
If, in responding to an application for post-conviction relief, the State moves for dismissal and presents matters outside the pleading and the court does not exclude them, the opposing party shall have 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers.
Johnson v. State , 2005 ND 8, 692 N.W.2d 784
Denial of application for post-conviction relief based on ineffective assistance of counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Johnson v. State , 2005 ND 19, 691 N.W.2d 288
Under N.D.R.Ct. 3.2(a), an applicant for post-conviction relief has 10 days to respond to a motion for summary disposition made by the State.
Greybull v. State , 2005 ND 1, 692 N.W.2d 784
An appeal from dismissal of a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(7).
Greywind v. State , 2004 ND 213, 689 N.W.2d 390
Informing a defendant of the prospect of receiving a harsher sentence if he were to go to trial is not coercion sufficient to render a guilty plea involuntary.
If a defendant pled guilty knowingly and voluntarily, he cannot show actual prejudice resulted from his trial attorney's failure to more thoroughly investigate the case before he pled guilty.
Recantation is looked upon by courts with suspicion and disfavor.
Packineau v. State , 2004 ND 208, 690 N.W.2d 429
Denial of application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Jensen v. State , 2004 ND 200, 688 N.W.2d 374
In a post-conviction proceeding, a claim is res judicata if it was fully and finally determined in a previous proceeding.
A misuse of process occurs when the applicant presents a claim for relief that the applicant inexcusably failed to raise in prior proceedings, or if the applicant has filed multiple applications containing claims so lacking in factual support or legal basis as to be frivolous.
Heckelsmiller v. State , 2004 ND 191, 687 N.W.2d 454
Ineffective assistance of counsel exists where trial counsel, after calling witnesses to the stand and discovering that they have not complied with a defense-requested sequestration order, makes no offer of proof as to the substance of these witnesses' critical testimony, thus denying defendant a meaningful appeal on the issue of whether these witnesses should have been allowed to testify.
Jackson v. State , 2004 ND 177, 687 N.W.2d 253
Denial of application for post-conviction relief based on alleged ineffective assistance of trial counsel is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Ernst v. State , 2004 ND 152, 683 N.W.2d 891
A guilty plea is a 'critical stage' in the criminal process so the constitutional right to counsel attaches.
A plea may be adjudged involuntary and withdrawn if a defendant received ineffective assistance of counsel for the plea. To prove an ineffective assistance of counsel, a defendant must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Failure to file pretrial motions, by itself, does not equate to ineffective assistance of counsel.
Johnson v. State , 2004 ND 130, 681 N.W.2d 769
An application for post-conviction relief is properly dismissed on the pleadings if the court cannot discern a potential for proof to support the application.
A defendant who inexcusably fails to raise all his claims in a single post-conviction proceeding misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in the earlier proceeding.
The Strickland standard for assessing ineffective assistance of counsel applies to claims of ineffective post-conviction counsel.
A criminal defendant has no constitutional right to "hybrid" representation and to act as co-counsel with his attorney.
Greybull v. State , 2004 ND 116, 680 N.W.2d 254
Raising issues in an application for post-conviction relief that were not raised on direct appeal or in prior applications for post-conviction relief, absent any showing of excuse or justification is an abuse of process.
Failure to show any excuse for not having raised the issue of untimely notice of intent to enhance sentence under the special dangerous offender statute in a prior proceeding makes raising the issue on post-conviction relief an abuse of process.
Garcia v. State , 2004 ND 81, 678 N.W.2d 568
To succeed on a claim for ineffective assistance of counsel, a petitioner must prove counsel's performance was deficient and the deficient performance prejudiced him.
Effectiveness of counsel is measured by an objective standard of reasonableness considering prevailing professional norms.
The prejudice element requires a petitioner to establish a reasonable probability that, but for his trial counsel's errors, the result of the proceeding would have been different.
A petitioner misuses the post-conviction process by initiating a subsequent application raising issues that could have been raised in an earlier proceeding.
Weaver v. State , 2004 ND 69, 688 N.W.2d 402
Dismissal of second petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).
Eagleman v. State , 2004 ND 6, 673 N.W.2d 241
The movant for summary disposition of a petition for post-conviction relief bears the burden of showing there is no dispute as to either the material facts or the inferences to be drawn from undisputed facts and that the movant is entitled to judgment as a matter of law.
Ordinarily, a claim of ineffective assistance of counsel should be resolved in a post-conviction relief proceeding so the parties can fully develop a record on the issue of counsel's performance and the impact on the defendant's case.
An unconditional guilty plea constitutes an admission of all the essential elements of the crime charged, including admission of jurisdictional facts.
Bay v. State , 2003 ND 183, 672 N.W.2d 270
Issues not raised to the trial court cannot be raised for the first time on appeal.
A nonbinding recommendation of sentence and a binding plea agreement under N.D.R.Crim.P. 11(d) are significantly different.
The State fulfills its obligation in a nonbinding recommendation when it makes the recommendation, and the trial court may impose a harsher sentence without allowing the defendant to withdraw the guilty plea.
Defendants who voluntarily plead guilty waive the right to challenge nonjurisdictional defects occurring before entry of the guilty plea.
Kamara v. State , 2003 ND 179, 671 N.W.2d 811
To establish ineffective assistance of counsel, a person must show counsel's performance fell below an objective standard of reasonableness and the deficient performance prejudiced him.
The standard of review for a claim of ineffective assistance of counsel is a mixed question of law and fact, but the trial court's findings of fact are subject to a clearly erroneous standard of review.
The credibility of witnesses is left to the trial court to determine.
McMorrow v. State , 2003 ND 134, 667 N.W.2d 577
An applicant for post-conviction relief has the burden of establishing grounds for relief.
A defendant alleging selective prosecution must show that the State has not generally prosecuted other similarly situated persons and that the State selected the defendant for prosecution for discriminatory reasons.
A defendant claiming ineffective assistance of counsel has the burden of proving counsel's performance was deficient and the deficient performance prejudiced the defendant.
A party waives an issue by not providing supporting argument, and without supportive reasoning or citations to relevant authorities, an argument is without merit.
Damron v. State , 2003 ND 102, 663 N.W.2d 650
To claim ineffective assistance of counsel in a plea agreement, a defendant must prove a serious dereliction on the part of the defendant's attorney that prevented the guilty plea from being anything other than knowingly and intelligently made.
Cue v. State , 2003 ND 97, 663 N.W.2d 637
A court is required to give a criminal defendant, upon sentencing, credit for all time spent in custody as a result of the criminal charge or conduct for which the sentence is being imposed.
A defendant has the burden of showing he is entitled to additional sentence credit for time served in custody.
Spath v. State , 2003 ND 94, 664 N.W.2d 516
Denial of an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Ellis v. State , 2003 ND 72, 660 N.W.2d 603
A Sixth Amendment violation of the right to assistance of counsel occurs if the government knowingly intrudes into the attorney-client relationship and the intrusion demonstrably prejudices the defendant, or creates a substantial threat of prejudice.
Vandeberg v. State , 2003 ND 71, 660 N.W.2d 568
The State cannot require a petitioner, in every post-conviction relief case, to prove up his case prior to any hearing merely by moving for summary disposition and asserting the petitioner has offered no evidence to support his claims.
Weaver v. State , 2003 ND 47, 658 N.W.2d 352
A trial court properly grants summary disposition of an application for post-conviction relief when the State's motion for summary disposition meets the initial burden of showing the application does not raise a genuine issue of material fact.
Steinbach v. State , 2003 ND 46, 658 N.W.2d 355
A trial court can summarily dispose of a post-conviction relief application for misuse of process. Process is misused when the defendant: (1) inexcusably fails to raise an issue on direct appeal and now seeks review in an application for post-conviction relief; (2) inexcusably fails to pursue an issue on appeal which was raised at the trial court; (3) inexcusably fails to raise an issue in an initial post-conviction relief application.
Although a party seeking a summary disposition bears the initial burden of showing there is no genuine issue of material fact, that burden may be shifted to the nonmoving party once the moving party points out to the district court there is an absence of evidence to support the nonmoving party's case.
Wilson v. State , 2003 ND 40, 660 N.W.2d 232
A judgment summarily denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (6).
Jensen v. State , 2003 ND 28, 660 N.W.2d 232
An order summarily denying an amended application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Peltier v. State , 2003 ND 27, 657 N.W.2d 238
Upon revocation of probation, the court is not bound by the terms of the plea agreement and may sentence a defendant to any sentence that was available at the time of the initial sentencing.
Murchison v. State , 2003 ND 38, 658 N.W.2d 320
A court may deny a post-conviction application on the grounds of misuse of process when a defendant inexcusably fails to pursue an issue leading to judgment of conviction, inexcusably fails to pursue an issue on appeal having raised the issue in the trial court, or inexcusably fails to raise an issue in an initial post-conviction proceeding.
A court may deny a post-conviction application on the grounds of res judicata if the same claims have been fully and finally determined in a previous proceeding.
Jensen v. State , 2002 ND 184, 655 N.W.2d 84
Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Whiteman v. State , 2002 ND 166, 655 N.W.2d 84
Trial court judgment dismissing a petition for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Whiteman v. State , 2002 ND 77, 643 N.W.2d 704
A defendant cannot be required to demonstrate how his appeal would have been successful in order to establish that he was prejudiced by his attorney's failure to pursue a requested appeal.
If the evidence raises a reasonable inference of ineffective assistance of counsel, an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel is required.
Froistad v. State , 2002 ND 52, 641 N.W.2d 86
A defendant's oral statement may be treated as a motion to withdraw a guilty plea.
When accepting a factual basis for a guilty plea, a district court may consider information beyond what is presented at the plea hearing, including information in a presentence report.
A district court is not required to inquire about the specific type of medications, the dosages, and the effect the medications might have on a defendant's faculties before it accepts a guilty plea, as long as it finds the plea is voluntary.
A telephone conference at which the district court informs the parties of a ruling is not a critical stage of a trial requiring the defendant's presence.
Burke v. State , 2002 ND 18, 642 N.W.2d 532
Judgment denying an application for post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(1) and (2).
Hughes v. State , 2002 ND 28, 639 N.W.2d 696
Issues raised in the district court but not briefed on appeal are waived.
A trial 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.
No appeal lies from a final order in a habeas corpus proceeding.
Red Paint v. State , 2002 ND 27, 639 N.W.2d 503
A post-conviction relief claim of disclosure of privileged communications is barred by res judicata if it was fully and finally determined in a previous proceeding.
A holder of a privilege waives the right to assert the privilege if he voluntarily discloses any significant portion of the privileged matter.
It is misuse of process to fail to raise an issue on direct appeal which is appropriate for review on direct appeal.
St. Claire v. State , 2002 ND 10, 638 N.W.2d 39
A trial court may summarily dismiss an application for post-conviction relief if there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.
Bell v. State , 2001 ND 188, 636 N.W.2d 438
A trial court may deny appointment of counsel for an indigent post-conviction applicant who is able to file an application without assistance, if the application, read in the light most favorable to the applicant, does not raise any substantial issue of law or fact.
It is a misuse of process to raise issues in a post-conviction application that were not raised in the original criminal prosecution, or, if raised, were not pursued in a properly perfected appeal.
Bell v. State , 2001 ND 171, 639 N.W.2d 706
Denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6) and (7).
Heyen v. State , 2001 ND 126, 630 N.W.2d 56
An application for post-conviction relief is denied if the same claims have been fully and finally determined in a previous post-conviction proceeding. It is a misuse of process to raise issues in a subsequent post-conviction application which could have been raised in the initial application.
Demarce v. State , 2001 ND 115, 629 N.W.2d 585
Appeal from denial of post-conviction relief and motion to reduce sentence is summarily affirmed under N.D.R.App.P. 35.1(a)(2), (4), and (6).
Eaton v. State , 2001 ND 97, 626 N.W.2d 676
A criminal defendant waives nonjurisdictional defects by entering a knowing and voluntary guilty plea.
Violations of the Interstate Agreement on Detainers Act that do not deprive the district court of personal jurisdiction are waived by a guilty plea.
The burden of proving a basis for post-conviction relief rests on the petitioning defendant.
Davis v. State , 2001 ND 85, 625 N.W.2d 855
A trial court is authorized to resentence a defendant who violates conditions of probation to any sentence that was initially available. Resentencing a defendant to a harsher sentence than his original sentence imposed does not violate double jeopardy or due process.
Dvorak v. State , 2001 ND 50, 625 N.W.2d 264
An appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(6).
Wilson v. State , 2001 ND 24, 625 N.W.2d 264
Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Strutz v. State , 2001 ND 27, 625 N.W.2d 264
A trial court's findings of fact in a post-conviction relief proceeding will not be disturbed unless clearly erroneous.
Barrera v. State , 2001 ND 18, 621 N.W.2d 880
It is a misuse of process to raise issues on subsequent post-conviction applications that could have been raised in the initial post-conviction application.
Owens v. State , 2001 ND 15, 621 N.W.2d 566
Post-conviction relief is denied for misuse of process when a petitioner presents issues the petitioner inexcusably failed to raise in a previous post-conviction hearing.
Englund v. State , 2001 ND 2, 625 N.W.2d 264
Appeal from denial of post-conviction relief is summarily affirmed under N.D.R.App.P. 35.1(a)(2) and (4).
Clark v. State , 2001 ND 9, 621 N.W.2d 576
Under Apprendi v. New Jersey, 120 S.Ct. 2348, 2355 (2000), any fact, other than prior convictions, that increases the penalty for a crime beyond the prescribed statutory maximum must be found by a jury and proved beyond a reasonable doubt.
Davenport v. State , 2000 ND 218, 620 N.W.2d 164
Although a trial court must inform a defendant of all direct consequences of a guilty plea, it need not advise a defendant of collateral consequences
The requirement for registration of a convicted sex offender is a collateral consequence.
Berlin v. State , 2000 ND 206, 619 N.W.2d 623
To establish ineffective assistance of counsel, the defendant must prove the counsel's performance was deficient and the deficient performance prejudiced the result.
An application for post-conviction relief may be denied for misuse of process if the applicant presents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous post-conviction proceeding.
Mathre v. State , 2000 ND 201, 619 N.W.2d 627
Defense counsel should consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury, but failure to do so is not always ineffective assistance of counsel.
A defendant alleging ineffective assistance of counsel has a heavy burden to demonstrate her counsel's representation fell below an objective standard of reasonableness and she was prejudiced by counsel's deficient performance.
Syvertson v. State , 2000 ND 185, 620 N.W.2d 362
A request for oral argument is incomplete if the requesting party fails to secure a time for oral argument.
A post-conviction relief application is denied if all issues were either fully and fairly determined in a direct appeal or petitioner inexcusably failed to raise them in that appeal.
Petitioner for post-conviction relief is not entitled to a new judge upon his application for post- conviction relief.
Hill v. State , 2000 ND 143, 615 N.W.2d 135
An order granting a new trial is a final judgment under the Uniform Post-Conviction Procedure Act and is appealable.
The defendant has a right to be present when testimony is read back to a jury.
To uphold a conviction, the State must demonstrate a violation of the defendant's right to be present was harmless beyond a reasonable doubt.
Comes v. State , 2000 ND 142, 618 N.W.2d 724
Summary judgment denying post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(1).
Crumley v. State , 2000 ND 110, 611 N.W.2d 165
A post-conviction applicant's actual knowledge of the right to apply for counsel and procedures for obtaining counsel, as evidenced by his motion requesting that counsel be appointed, is sufficient to establish notice.
The appointment of post-conviction counsel is a matter of trial court discretion which will not be reversed absent an abuse of that discretion.
An evidentiary hearing on a post-conviction application is not necessary unless the applicant raises a genuine issue of material fact.
Abdi v. State , 2000 ND 64, 608 N.W.2d 292
Before accepting a defendant's guilty plea, a trial court need not readvise the defendant of rights under N.D.R.Crim.P. 11, if the court determines the defendant previously was properly advised of those rights and recalls the advice.
The N.D.R.Crim.P. 11(c) requirement that the trial court inquire whether the defendant's willingness to plead guilty resulted from discussions between the prosecution and the defendant is to alert the court of plea negotiations so it can inquire further about the negotiations and the defendant's understanding of any agreement.
An applicant for post-conviction relief bears a heavy burden of proving trial counsel's assistance was ineffective, and there is a strong presumption counsel's conduct falls within the range of reasonableness.
DeCoteau v. State , 2000 ND 44, 608 N.W.2d 240
To establish ineffective assistance of counsel, the defendant must prove his counsel's performance was defective, and his defense was prejudiced by the proven defect.
An unsuccessful trial strategy does not make defense counsel's performance defective.
Spath v. State , 2000 ND 40, 609 N.W.2d 455
Post-conviction relief judgment summarily affirmed under N.D.R.App.P. 35.1(a)(2).
Berlin v. State , 2000 ND 13, 604 N.W.2d 437
Arguments raised for the first time on appeal generally will not be considered.
Issues not briefed by an appellant are deemed abandoned.
GreyBull v. State , 2000 ND 8, 604 N.W.2d 440
The clerk of district court's failure to notify an applicant for post-conviction relief of the statutory right to apply for counsel and the procedure for obtaining counsel is reversible error.
Wilson v. State , 1999 ND 222, 603 N.W.2d 47
In a post-conviction relief proceeding, claims of ineffective assistance of counsel should be raised in the district court.
An issue previously raised in a direct appeal will not be considered again in a subsequent application for post-conviction relief.
A district court should not summarily deny an application for post-conviction relief alleging ineffective assistance of counsel without affording the applicant an opportunity to provide evidentiary support for his allegations.
Clark v. State , 1999 ND 78, 593 N.W.2d 329
An application for post-conviction relief will be dismissed for misuse of process (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction; (2) if the defendant inexcusably failed to pursue on direct appeal an issue raised and litigated in a proceeding leading to judgment of conviction; or (3) if the defendant inexcusably failed to raise an issue in an initial post-conviction application.
Silvesan v. State , 1999 ND 62, 591 N.W.2d 131
N.D.C.C. 29-32.1-12 authorizes denial of an application for post-conviction relief on the ground of res judicata or misuse of process.
DeCoteau v. State , 1998 ND 199, 586 N.W.2d 156
When a conviction is summarily affirmed on direct appeal, the denial of an ineffective assistance claim is without prejudice to raising the issue in a post-conviction proceeding.
When applicant for post-conviction relief shows potentially relevant and admissible testimony not introduced at trial, and trial counsel's failure to offer the evidence raises a reasonable inference of ineffective representation, a trial court errs by summarily denying the application without a hearing.
Breding v. State , 1998 ND 170, 584 N.W.2d 493
Defense counsel did not provide ineffective assistance by failing to object to or attack the credibility of a prosecution witness's testimony on the ground the witness had used hypnosis to enhance his recall of events.
Trial strategy choices by defense counsel made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable.
Owens v. State of ND , 1998 ND 106, 578 N.W.2d 542
An applicant for post-conviction relief has the right to represent himself in the proceedings if he knowingly and intelligently elects to do so.
If there is no direct appeal from a criminal conviction, a trial court in a post-conviction relief proceeding does not abuse its discretion in refusing an indigent applicant's request for a trial transcript unless the applicant shows a particularized need, necessity, or justification for its preparation and use.
An applicant is not entitled to avoid the res judicata rule against repetitious post-conviction relief by raising contentions in a subsequent application which are simply variations of previous arguments.
Issues which could have been raised in a direct appeal from a criminal conviction, but were not because no direct appeal was taken, can be raised in a post-conviction relief proceeding only if they relate to a condition delineated in N.D.C.C. 29-32.1-01 under which post-conviction relief may be granted.
Gibson v. State , 1998 ND 89, 578 N.W.2d 128
A court order denying a request for transcripts is interlocutory and nonappealable.
Murchison v. State , 1998 ND 96, 578 N.W.2d 514
Issues previously raised in a direct appeal or in an application for post-conviction relief will not be considered again in a subsequent application for post-conviction relief.
Issues which should have been raised in direct appeal, but were not, will not be considered in an application for post-conviction relief.
Issues not raised before a trial court cannot be raised for the first time on appeal.
Arguments not briefed by appellant are deemed abandoned.
Bell v. State , 1998 ND 35, 575 N.W.2d 211
A petition for post-conviction relief must seek relief that can be granted under ch. 29-32.1, N.D.C.C., and must allege facts that support a claim for such relief.
A petition for post-conviction relief may be summarily dismissed when petitioner fails to present evidence raising a genuine issue of material fact in response to State's motion for summary disposition.
Trial court did not abuse its discretion by considering State's motion for summary disposition immediately after denying petitioner's motion for judgment by default.
Hopfauf v. State , 1998 ND 30, 575 N.W.2d 646
Proceedings under the Uniform Post-Conviction Procedure Act are civil in nature.
Whether sought in a motion for new trial or in an application for post-conviction relief, a new trial on the ground of newly discovered evidence will be granted only if the evidence is of such a nature that it would probably produce an acquittal at a retrial.
Conclusory allegations about trial counsel's failure to call certain witnesses at trial, without identifying the potential witnesses, indicating what their testimony would have been, or indicating how their testimony might have affected the outcome of the trial, are insufficient to raise a genuine issue of material fact requiring a hearing or relief under the Uniform Post-Conviction Procedure Act.
Foster v. State , 1997 ND 239, 575 N.W.2d 224
Dismissal of application for post-conviction relief summarily affirmed under N.D.R.App.P. 35.1(a)(6), (7).
Gerard v. State , 1997 ND 218, 575 N.W.2d 224
Application for postconviction relief affirmed under N.D.R.App.P. 35.1(a)(2).
Austin v. State , 1997 ND 206, 575 N.W.2d 224
District court's denial of post-conviction relief summarily affirmed under Rule 35.1(a)(1), N.D.R.App.P.
Falcon v. State , 1997 ND 200, 570 N.W.2d 719
N.D.C.C. 29-15-21 demand for change of judge does not apply to proceedings brought under the Uniform Post-Conviction Procedure Act.
Failing to object to evidence which would have been admissible over an objection was not ineffective assistance of counsel.
Lange v. State , 1997 ND 136, 575 N.W.2d 224
Denial of application for post-conviction relief summarily affirmed under NDRAppP 35.1(a)(6) and (7).
Ostafin v. State , 1997 ND 102, 564 N.W.2d 616
Trial court's determination that plea agreement in which defendant waived good time reduction was illegal affirmed. Trial court's decision to allow defendant to choose whether to have court correct illegal sentence or withdraw guilty plea reversed and case remanded to correct illegal sentence to conform to intent of original plea bargain.
Rohde v. State , 562 N.W.2d 104 (N.D. 1996)
District court's order denying application for post-conviction relief is summarily affirmed under Rule 35.1(a)(2), N.D.R.App.P.
Praska v. State , 562 N.W.2d 104 (N.D. 1996)
Dismissal of second post-conviction relief petition summarily affirmed under N.D.R.App.P 35.1.
Muri v. State , 551 N.W.2d 567 (N.D. 1996)
Evans v. State , 551 N.W.2d 567 (N.D. 1996)
Mertz v. State , 535 N.W.2d 834 (N.D. 1995)
Praska v. State , 537 N.W.2d 365 (N.D. 1995)
McMorrow v. State , 537 N.W.2d 365 (N.D. 1995)
Woehlhoff v. State , 531 N.W.2d 566 (N.D. 1995)
Lange v. State , 522 N.W.2d 179 (N.D. 1994)
Morstad v. State , 518 N.W.2d 191 (N.D. 1994)
McMorrow v. State , 516 N.W.2d 282 (N.D. 1994)
McMorrow v. State , 524 N.W.2d 612 (N.D. 1994)
Hoffarth v. State of North Dakota , 515 N.W.2d 146 (N.D. 1994)
Schwindt v. State , 510 N.W.2d 114 (N.D. 1994)
Unterseher v. State , 516 N.W.2d 300 (N.D. 1994)
Frey v. State , 509 N.W.2d 261 (N.D. 1993)
Sampson v. State , 506 N.W.2d 722 (N.D. 1993)
Stoppleworth v. State , 501 N.W.2d 325 (N.D. 1993)
Skaro v. State , 503 N.W.2d 848 (N.D. 1993)
DeCoteau v. State , 504 N.W.2d 552 (N.D. 1993)
DeCoteau v. State , 499 N.W.2d 894 (N.D. 1993)
Runck v. State , 497 N.W.2d 74 (N.D. 1993)
Berlin v. State , 492 N.W.2d 898 (N.D. 1992)
State v. Zeno , 490 N.W.2d 711 (N.D. 1992)
Woehlhoff v. State , 487 N.W.2d 16 (N.D. 1992)
State v. Lindgren , 483 N.W.2d 777 (N.D. 1992)
State v. Murchison , 464 N.W.2d 205 (N.D. 1990)
State v. Jensen , 429 N.W.2d 445 (N.D. 1988)
State v. Johnson , 430 N.W.2d 63 (N.D. 1988)
State v. Unger , 425 N.W.2d 379 (N.D. 1988)
State v. Skjonsby , 417 N.W.2d 818 (N.D. 1987)
State v. McLain , 403 N.W.2d 16 (N.D. 1987)
State v. Jensen , 385 N.W.2d 478 (N.D. 1986)
State v. Willey , 381 N.W.2d 183 (N.D. 1986)
State v. Jensen , 373 N.W.2d 902 (N.D. 1985)
Varnson v. Satran , 368 N.W.2d 533 (N.D. 1985)
Shulze v. Satran , 368 N.W.2d 531 (N.D. 1985)
State v. Kunkel , 366 N.W.2d 799 (N.D. 1985)
State v. Manke , 361 N.W.2d 247 (N.D. 1985)
State v. Cook , 344 N.W.2d 487 (N.D. 1984)
State v. Skjonsby , 338 N.W.2d 628 (N.D. 1983)
State v. McMorrow , 332 N.W.2d 232 (N.D. 1983)
Jensen v. Satran , 332 N.W.2d 222 (N.D. 1983)
State v. Tinsley , 325 N.W.2d 177 (N.D. 1982)
State v. Vogel , 325 N.W.2d 184 (N.D. 1982)
Hampson v. Satran , 319 N.W.2d 796 (N.D. 1982)
State v. Gilley , 289 N.W.2d 238 (N.D. 1980)
State v. Gustafson , 278 N.W.2d 358 (N.D. 1979)
State v. Mees , 272 N.W.2d 61 (N.D. 1978)
State v. Lueder , 267 N.W.2d 555 (N.D. 1978)
State v. Carmody , 243 N.W.2d 348 (N.D. 1976)
State v. Lueder , 242 N.W.2d 142 (N.D. 1976)
State v. Iverson , 225 N.W.2d 48 (N.D. 1974)
State v. Harm , 200 N.W.2d 387 (N.D. 1972)
State v. Rudolph , 193 N.W.2d 237 (N.D. 1971)
State v. Barlow , 193 N.W.2d 455 (N.D. 1971)

Generated from Supreme Court Docket on 08/28/2008