Jensen v. State, Cr. N
| Decision Date | 04 September 1985 |
| Docket Number | Cr. N |
| Citation | 373 N.W.2d 894 |
| Parties | Herbert O. JENSEN, Petitioner, v. STATE of North Dakota, Respondent. o. 1068. |
| Court | North Dakota Supreme Court |
Herbert O. Jensen, Bismarck, pro se.
Edwin Zuern, Sp. Asst. Atty. Gen., Bismarck, and Vincent A. LaQua, State's Atty., Fessenden, for respondent State of North Dakota; argued by Edwin Zuern, Bismarck. Appearance by Vincent A. LaQua, Fessenden.
Herbert O. Jensen has petitioned for a writ of habeas corpus, alleging that his murder convictions are void due to defects in the proceedings leading to the convictions. Although we conclude that exercise of this Court's original jurisdiction is appropriate, we further conclude that Jensen has failed to establish any error which would invalidate his convictions and render his detention unlawful.
Jensen's original convictions on two counts of second degree murder were reversed in State v. Jensen, 251 N.W.2d 182 (N.D.1977). Jensen was retried and again convicted on both counts. Those convictions were affirmed in State v. Jensen, 282 N.W.2d 55 (N.D.1979).
Jensen filed an application for post-conviction relief and a motion for a new trial, which were denied by the District Court of Wells County. Jensen attempted an appeal to the Supreme Court. We dismissed the appeal from the order denying post-conviction relief as premature, but reached the merits of the appeal from the order denying a new trial. State v. Jensen, 333 N.W.2d 686 (N.D.1983). All issues raised by Jensen were disposed of on appeal. See State v. Jensen, supra, 333 N.W.2d at 690-691.
Jensen subsequently sought habeas corpus relief in federal district court. The federal district court dismissed Jensen's petition, noting that Jensen had not sought habeas corpus review in a state forum and therefore had not exhausted all possible state remedies.
Jensen has now filed a petition for an original writ of habeas corpus with this Court. He contends that the Uniform Post-Conviction Procedure Act, Chapter 29-32, N.D.C.C., does not supplant his right to invoke the original jurisdiction of this Court in habeas corpus. He thus contends that he may seek further review of his convictions through an original writ of habeas corpus in this Court. On the merits, Jensen raises numerous issues regarding the validity of his convictions. He also has filed various motions for discovery and a motion for proof of attorney's authority pursuant to Sec. 27-13-04, N.D.C.C. Many of the issues raised by Jensen have been raised in previous proceedings before various courts.
The threshold issue presented is whether this Court retains authority to exercise its original jurisdiction to issue writs of habeas corpus, or whether the appeal provision of Sec. 29-32-09, N.D.C.C., 1 is an equivalent substitute which supplants our authority to hear original petitions for habeas corpus.
Our authority to exercise original jurisdiction in habeas corpus derives from the State Constitution. Pronouncements of this Court defining the extent of its original jurisdiction over habeas corpus date back to the early days of statehood:
Carruth v. Taylor, 8 N.D. 166, 174, 77 N.W. 617, 620-621 (1898).
Prior to amendment of the Judicial Article in 1976, Section 87 of the State Constitution provided in pertinent part:
"It [the Supreme Court] shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same; ..."
The 1976 amendment enacted Article VI, Section 2, which provides in part:
Although the amendment deleted specific reference to habeas corpus, we believe that the provision in Article VI, Section 2, that this Court has original jurisdiction to issue, hear, and determine such original and remedial writs as may be necessary to exercise its jurisdiction, includes the authority to issue original writs of habeas corpus. In Smith v. Satran, 295 N.W.2d 118, 119 (N.D.1980), we impliedly recognized that the 1976 amendment did not remove this Court's authority to issue writs of habeas corpus in exercise of its original jurisdiction. We do not believe that the people of this State, in adopting the 1976 amendments, intended to abrogate the historical right to petition the highest court of the State for issuance of the "Great Writ." Rather, the change which deleted the list of the various writs in Section 87 was, we believe, intended to remove what appeared to be redundant language.
Having established that the citizens of this State retain the right under the Constitution to petition this Court for a writ of habeas corpus, we turn next to the State's contention that the appeal provisions of Chapter 29-32, our codification of the Uniform Post-Conviction Procedure Act, are an exclusive and equivalent substitute for the right to petition this Court for a writ of habeas corpus.
Article I, Section 14 of the Constitution provides that "the writ of habeas corpus shall not be suspended unless, when in case of rebellion or invasion, the public safety may require." We have held that this constitutional provision is not violated by legislative enactments which regulate practice or reasonably restrict the exercise of the constitutional right. Carruth v. Taylor, supra, 8 N.D. at 173, 77 N.W. at 620; see also McGuire v. Warden of the State Farm, 229 N.W.2d 211, 214 (N.D.1975). Carruth is the seminal case in this State outlining the constitutional breadth of the writ. In Carruth, the Court held that no appeal was permitted from a final order in a habeas corpus case. 2 This holding was based in part upon the Court's conclusion that a statute restricting venue at the district court level to the district where the petitioner is imprisoned 3 was a reasonable regulation of procedure in habeas corpus cases, and was therefore not violative of the Constitution.
Enactment of the Uniform Post-Conviction Procedure Act by the Legislature in 1969 raised many questions regarding the effect of the Act on the constitutional right to habeas corpus. The constitutionality of the venue provision of the Uniform Act was challenged in McGuire v. Warden of the State Farm, supra. Justice Vogel's opinion for the Court in McGuire provides a scholarly analysis of the constitutional provisions and statutes in light of the historical development of the "Great Writ."
Section 29-32-03, N.D.C.C., places venue of proceedings under the Uniform Act in the court of conviction. Section 29-32-01(2) provides that the post-conviction remedy
McGuire filed a petition for habeas corpus in the district court of the district where he was confined. That court declined to exercise jurisdiction and referred the petitioner to the court in the district of conviction. McGuire, supra, 229 N.W.2d at 216. McGuire then invoked the original jurisdiction of the Supreme Court, seeking a writ of habeas corpus.
We concluded that the venue provisions of the Uniform Act did not infringe McGuire's constitutional right to habeas corpus. Noting that Carruth had upheld a requirement that the petition be filed in the district of confinement, as opposed to any district in the State, we found that the requirement in the Uniform Act placing venue in the convicting court was constitutionally permissible. McGuire, supra, 229 N.W.2d at 215.
Our holding in McGuire was based in part upon Sec. 29-32-02, N.D.C.C., which provides:
We held that Sec. 29-32-02 was permissive, giving the district court in the district of confinement (the court with original habeas corpus jurisdiction) discretion to decline jurisdiction and defer post-conviction proceedings to the court of conviction if appropriate. McGuire, supra, 229 N.W.2d at 216. On that basis, we concluded that the Uniform Act, "so far as it affects the venue of district courts," was not unconstitutionally restrictive. Id. While noting the permissive nature of Sec. 29-32-02, we did indicate that "petitions for relief in the nature of habeas corpus should normally be directed to the court in the district of conviction, under the Uniform Post-Conviction Procedure Act." McGuire, supra, 229 N.W.2d at 216.
McGuire spawned a series of subsequent cases in which we reiterated this preference for proceedings in the court of conviction under the Uniform Act. Thus, in Smith v. State, 236 N.W.2d 632, 633 (N.D.1975), and Kittelson v. Havener, 239 N.W.2d 803, 805 (N.D.1976), we stated that the Uniform Act, not habeas corpus, was the appropriate procedure to obtain review of a conviction other than by appeal. In Bushaw v. Havener, 247 N.W.2d 62, 63-64 (N.D.1976), ...
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Cole v. State
...not be abolished as a post-conviction remedy by legislative fiat. To this extent, Section 317 is unconstitutional. In Jensen v. State, 373 N.W.2d 894, 899 (N.D.1985), the North Dakota Supreme Court stated that an applicant should employ the procedure of the Uniform Act in order to insure a ......
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