Kalmio v. State

Docket No. 20190051
Oral Argument: Waived

Docket Info

Title
Omar Mohamed Kalmio, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
Case Type
CIVIL APPEAL : POST-CONVICTION RELIEF
Appeal From
Case No. 2014-CV-00785
North Central Judicial District, Ward County
Douglas L. Mattson

Parties' Statement of Issues

  • Appellant

    1. Did the court prejudice the plaintiff's issue it ruled direct appeal counsel (Russel Myhre) was not prejudicial against the defandant for not briefing the prior bad acts and failure to study the record?
    2. Did the district court prejudice the plaintiff issue when he denied evidentiary hearing?


Summary

Omar Kalmio appeals after the district court entered a judgment on remand denying his post-conviction relief application.

In 2013, a jury found Kalmio guilty of four counts of class AA felony murder. In State v. Kalmio, 2014 ND 101, 846 N.W.2d 752, this Court affirmed the convictions. In 2014, Kalmio applied for post-conviction relief raising multiple grounds, including ineffective assistance of counsel. After evidentiary hearings, the district court entered a final judgment denying his application in 2017. In Kalmio v. State, 2018 ND 182, 915 N.W.2d 655, this Court affirmed in part, reversed in part, and remanded to the district court for findings on whether the representation of Kalmio’s appellate counsel during the direct appeal in the criminal proceedings prejudiced his direct appeal. In December 2018, the district court entered its order on remand, finding Kalmio failed to meet his burden to show he was prejudiced by his appellate counsel’s unprofessional errors and denying his post-conviction application. The court also denied Kalmio’s request for an evidentiary hearing on remand. A judgment on remand was subsequently entered.

On appeal, Kalmio argues the district court erred in ruling he failed to show he was prejudiced in his direct appeal by his appellate counsel’s failure to brief the issue of admissibility of prior bad acts testimony and failure to study the record. He also contends the court erred in denying an evidentiary hearing on remand.


Briefs

Filing Date Description
04/04/2019 APPELLANT BRIEF View
04/22/2019 APPELLEE BRIEF View
05/10/2019 REPLY BRIEF View

Counsel

Party Type Name
APPELLEE STATE'S ATTORNEY Rozanna Christine Larson - 05294
APPELLEE ASST. STATE'S ATTORNEY Kelly Ann Dillon - 05296
APPELLANT PRO SE Omar Mohamed Kalmio

(Note: Attachments may not be available for recently filed cases and/or confidential documents.)

Seq. # Filing Date Description Attachment
1 02/13/2019 NOTICE OF APPEAL : 02/13/2019
2 02/14/2019 NOT. OF FILING NOT. OF APPEAL AND PROOF OF SERV.
3 02/14/2019 Notice served on Omar M. Kalmio and Kelly A. Dillon
4 03/01/2019 MOTION TO STAY APPEAL, MOTION TO COMPEL DC TO COMPLY WITH REMAND
5 03/01/2019 Paper Filed Document
6 03/05/2019 ACTION BY CHIEF JUSTICE - Denied
7 03/22/2019 MOT. EXT/TIME APPELLANT BRIEF
8 03/22/2019 Paper Filed Document
9 03/25/2019 ACTION BY CLERK - Granted : 04/08/2019
10 03/18/2019 ELEC. RECORD ON APPEAL DATED MARCH 15, 2019 (ENTRY NOS.1-5, 761, 63-108, 110-289)(NOT SENT 6)
11 03/18/2019 ELEC. RECORD ON APPEAL DATED MARCH 15, 2019 (ENTRY NOS. 1-185, 187-400, 405, 411, 414-416, 418-427,
12 03/18/2019 449-560)(NOT SENT: 401-404, 406-410, 412-413, & 417)(UNDERLYING CRIMINAL)
13 04/04/2019 APPELLANT BRIEF View
14 04/04/2019 Paper Filed Document
15 04/04/2019 APPELLANT APPENDIX
16 04/04/2019 Paper Filed Document
17 04/05/2019 Received $25 surcharge for ATB (receipt #26987)
18 04/22/2019 Rec'd non-substantive corrections to ATA (toc, order being appealed)
19 04/22/2019 APPELLEE BRIEF View
20 04/22/2019 APPELLEE APPENDIX
21 04/23/2019 Rec'd 6 copies of ATB & ATA from CSD
22 04/23/2019 Rec'd 6 copies of AEB & AEA from CSD
23 04/23/2019 No appearance/argument by Appellant - Inmate and will not be transported per policy of NDSP
24 04/23/2019 S.CT. DETERMINED ORAL ARGUMENT NOT NECESSARY ON BEHALF OF APPELLEE
25 04/26/2019 Rec'd $25 e-filing surcharge for AEB (receipt #27027)
26 04/30/2019 MOT. EXT/TIME REPLY BRIEF
27 04/30/2019 ACTION BY SUPREME COURT (recieved by the Clerk 5/15/19) - Granted : 05/15/2019
28 05/10/2019 REPLY BRIEF View
29 05/10/2019 Paper Filed Document
30 05/13/2019 Rec'd 6 copies of RYB from CSD
31 05/23/2019 APPEARANCES: Waived under N.D.R.App.P. 34(e) and (a)(2)
32 05/23/2019 ARGUED: Waived under N.D.R.App.P. 34(e) and (a)(2)