Johnson v. State

Decision Date30 June 2004
Docket Number No. 20030256 | 20030257
Citation681 NW 2d 769,2004 ND 130
PartiesSteven Lennard Johnson, Petitioner and Appellant v. State of North Dakota, Respondent and Appellee
CourtNorth Dakota Supreme Court

Steven M. Light (appeared), and Jesse Lange (argued), third-year law student, Larivee & Light, U.S. Bank Building, 600 DeMers Avenue, Grand Forks, N.D. 58201, for petitioner and appellant.

Peter D. Welte (on brief), State's Attorney, Dale R. Rivard (appeared), Assistant State's Attorney, Heather L. Foss (argued), third-year law student, and Carmell Berry (appeared), third-year law student, P.O. Box 5607, Grand Forks, N.D. 58206-5607, for respondent and appellee.

Opinion of the Court by Neumann, Justice.

Neumann, Justice.

[¶1] Steven Lennard Johnson appealed from an order denying his application for post-conviction relief and an order denying his motion to amend that order under N.D.R.Civ.P. 52(b). We conclude the district court did not err in denying post-conviction relief because of res judicata, Johnson's misuse of process, and Johnson's failure to allege a valid claim of ineffective assistance of counsel as a matter of law. We affirm.

I

[¶2] In December 2000, Johnson was convicted by a jury of gross sexual imposition, a class A felony, and contributing to the delinquency of a minor, a class A misdemeanor. Johnson appealed to this Court, but the appeal was dismissed on Johnson's own motion. In August 2001, Johnson was appointed an attorney different than his trial attorney to represent him in post-conviction proceedings. Nevertheless, on January 25, 2002, Johnson, acting pro se, filed an application for post-conviction relief, which was refiled with the district court on February 7, 2002. A hearing on Johnson's application occurred in August 2002, and the district court denied the application in October 2002. Johnson appealed to this Court, but the appeal was dismissed on motion by a second attorney Johnson had retained for post-conviction purposes.

[¶3] On April 15, 2003, Johnson, represented by his second post-conviction attorney, filed another application for post-conviction relief raising numerous issues. He alleged ineffective assistance of both his trial attorney and the attorney who represented him on his first application for post-conviction relief, and alleged prosecutorial misconduct during his trial. The district court dismissed the application without affording Johnson a hearing, concluding that the "underlying contentions" were substantively identical to the contentions raised in the first application for post-conviction relief. Johnson moved to amend the court's findings and judgment under N.D.R.Civ.P. 52(b). The district court also denied the motion to amend, concluding neither Johnson's trial attorney nor his post-conviction attorney were ineffective, and the prosecutor's comments during trial did not "cause[] substantial injury to Mr. Johnson's rights." This appeal followed. Although an order on a motion brought under N.D.R.Civ.P. 52(b) is not itself appealable, Lang v. Lang, 1997 ND 17, ¶ 6, 558 N.W.2d 859, it is reviewable on the timely appeal from the court's prior order denying post-conviction relief. See Applegren v. Milbank Mut. Ins. Co., 268 N.W.2d 114, 115 (N.D. 1978).

II

[¶4] Johnson argues the district court erred in dismissing his application for post-conviction relief without holding an evidentiary hearing.

A

[¶5] Under N.D.C.C. § 29-32.1-09(1), a district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the party moving for dismissal is entitled to judgment as a matter of law. We ordinarily review an appeal from a summary denial of post-conviction relief in the same way that we review appeals from summary judgment. Murchison v. State, 2003 ND 38, ¶ 8, 658 N.W.2d 320. Once the party moving for summary disposition has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists, and the party resisting the motion may not rely on the pleadings or unsupported conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means. Whiteman v. State, 2002 ND 77, ¶ 21, 643 N.W.2d 704.

[¶6] Here, Johnson's application for post-conviction relief was filed on April 15, 2003, and the State's brief in response to the application requesting summary disposition without a hearing was filed on June 17, 2003. The district court denied the second application on July 1, 2003, two weeks after the State requested summary disposition. Because post-conviction relief proceedings are civil in nature and all rules and statutes applicable in civil proceedings are available to the parties, see Vandeberg v. State, 2003 ND 71, ¶ 5, 660 N.W.2d 568, Johnson, under N.D.R.Civ.P. 56(c), should have been afforded 30 days after service of the State's brief within which to serve and file an answer brief and supporting papers in opposition to the request for summary disposition. See Alerus Fin. v. Lamb, 2003 ND 158, ¶ 17, 670 N.W.2d 351. Johnson, however, has not raised this as an issue on appeal. We will treat the district court's decision as a dismissal of the application on the pleadings under N.D.R.Civ.P. 12(b)(vi). On appeal from a dismissal under N.D.R.Civ.P. 12(b)(vi), we construe the application in the light most favorable to the plaintiff and accept as true the well-pleaded allegations. See Vandall v. Trinity Hosp., 2004 ND 47, ¶ 5, 676 N.W.2d 88. We will affirm dismissal for failure to state a claim if we cannot discern a potential for proof to support the application. See Ziegelmann v. DaimlerChrysler Corp., 2002 ND 134, ¶ 5, 649 N.W.2d 556.

[¶7] The State argued in the district court that the application should be denied because of res judicata and misuse of process. Section 29-32.1-12(1) and (2), N.D.C.C., provides:

.An application for postconviction relief may be denied on the ground that the same claim or claims were fully and finally determined in a previous proceeding.
.A court may deny relief on the ground of misuse of process. Process is misused when 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 postconviction proceeding; or
.Files multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.

Section 29-32.1-06(2) and (3), N.D.C.C., further provides:

.The state may move to dismiss an application on the ground that it is evident from the application that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings. In considering the motion, the court shall take account of substance regardless of defects of form.
.The following defenses may be raised by answer or motion:
.The claim has been fully and finally determined in a previous proceeding in accordance with subsection 1 of section 29-32.1-12; or
.The application constitutes misuse of process in accordance with subsection 2 of section 29-32.1-12.
B

[¶8] In his January 25, 2002 and February 7, 2002 pro se applications for post-conviction relief, Johnson argued he was denied a fair trial because: (1) the prosecutor presented "altered statements" of his written statement to the jury without providing an audio tape of those statements; (2) the prosecutor entered the victim's statement in evidence knowing the victim had failed a polygraph examination and had admitted her statements were false; (3) his trial attorney refused to subpoena "key witness[es];" (4) the testimony of a medical doctor, if he had been called to testify, would have "brought forth a different verdict"; (5) his trial attorney refused to seek suppression of his "altered statement"; (6) his trial attorney refused to subpoena the victim's boyfriend, "whom the victim stated that she had sex with the day before the alleged accusation"; (7) his trial attorney failed to secure other witnesses who "would have guaranteed an Acquittal"; (8) his trial attorney's failure to appeal the conviction "as requested" was ineffective assistance of counsel; and (9) he had a statutory right to appeal as a "Matter of Right." Following a hearing, the district court denied the application in a nine-page decision. An appeal from that order was withdrawn, and the appeal was dismissed by this Court on February 5, 2003.

[¶9] In the second application for post-conviction relief filed on April 15, 2003, Johnson alleged, through this second post-conviction attorney, that he was denied due process because he received ineffective assistance of counsel:

.During the State's case-in-chief, Trial counsel failed to conduct a foundational cross-examination and object to the admission of a transcript of a statement allegedly given by Johnson when the audio tape of that interview had been destroyed (Tr. Jury Trial p. 66; 78, lines 8-15); and
.Trial counsel failed to object or move for a mistrial when during the State's case-in-chief a State witness read a letter written by Johnson, which was improperly authenticated and was written in an effort to plea bargain (Tr. Jury Trial p. 75-77); and
.Trial counsel failed to object or move for a mistrial when at various times during trial, the prosecuting attorney vouched for State witnesses, stated facts not in evidence, and made other improper statements (Tr. Jury Trial p. 20, lines 20-21; 141, lines 19-22; 142, lines 3-4 and 5-19; 144, lines 4-5; 163, lines 18-23; 147, lines 19-22; 165, lines 3-8 and lines 15-23);
.Trial counsel advised Johnson to move for dismissal of his direct appeal in order to obtain a sentence reduction, which was ultimately denied; and
.Johnson's Previous counsel for matters pertaining to post-conviction relief refused to file a brief on Johnson's behalf and failed to raise any issues. Instead, she relied solely on the issues raised in a brief written
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