Lehman v. State, 20130295.

• Decision Date: 28 May 2014
• Docket Number: No. 20130295.,20130295.
• Citation: 2014 ND 103,847 N.W.2d 119
• Parties: Troy LEHMAN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee.
• Court: North Dakota Supreme Court

847 N.W.2d 119

2014 ND 103

Troy LEHMAN, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee.

No. 20130295.

Supreme Court of North Dakota.

May 28, 2014.

Russell J. Myhre, Valley City, ND, for petitioner and appellant; submitted on brief.

Ryan J. Younggren, Assistant State's Attorney, Fargo, ND, for respondent and appellee; submitted on brief.

VANDE WALLE, Chief Justice.

[¶ 1] Troy Lehman appealed from a district court order dismissing his application for post-conviction relief. We affirm, concluding the district court did not err in summarily dismissing Lehman's petition for post-conviction relief.

I

[¶ 2] In 2009, a jury found Lehman guilty of kidnapping and terrorizing. Lehman was sentenced to ten years in the custody of the Department of Corrections for the kidnapping charge and five years for the terrorizing charge, with the sentences to be served concurrently. On July 13, 2010, this Court affirmed the conviction in State v. Lehman, 2010 ND 134, 785 N.W.2d 204. Lehman filed an application for post-conviction relief. Lehman alleged, among other things, that his trial counsel was ineffective for numerous reasons including: (1) he did not subpoena all the witnesses Lehman requested; (2) he failed to impeach several witnesses including Daniel Flyinghawk, Patty LeCroix, and Camille Lorenzen; (3) he failed to demand a mistrial; (4) his closing statement was unrelated to the case; and (5) he failed to inform Lehman that not testifying would hinder the appeals process. After a hearing, the district court denied the petition. Lehman appealed. On December 13, 2011, this Court affirmed the district court's order dismissing the application in Lehman v. State, 2011 ND 225, 806 N.W.2d 438.

[¶ 3] Effective August 1, 2013, N.D.C.C. § 29–32.1–01(2) was amended and reenacted to create a statute akin to a statute of limitations requiring applications for post-conviction relief to be filed within two years following a conviction. 2013 N.D. Sess. Laws ch. 248, § 1. Section 29–32.1–09, N.D.C.C., was also amended and reenacted on August 1, 2013, to allow courts to deny a second application for similar relief, or deny any application when the issues raised have been previously decided by the appellate court in the same case. 2013 N.D. Sess. Laws ch. 248, § 2. On August 2, 2013, one day after the enactment of N.D.C.C. §§ 29–32.1–01(2), and 29–32.1–09(1) and (2), Lehman filed his second application for post-conviction relief, claiming he received ineffective assistance of counsel at the first post-conviction relief hearing. Lehman argued, among other things, that his post-conviction counsel provided ineffective assistance because he failed to: (1) conduct a proper investigation; (2) produce exculpatory evidence; (3) depose key witnesses including LeCroix and Lorenzen; and (4) investigate whether trial counsel prepared for cross-examination. The State filed a motion for summary disposition of the application. The district court dismissed the application for post-conviction relief without a hearing.

II

[¶ 4] “Post-conviction relief proceedings are civil in nature and governed by the North Dakota Rules of Civil Procedure.” Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625. “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.” Waslaski v. State, 2013 ND 56, ¶ 7, 828 N.W.2d 787. “Questions of law are fully reviewable on appeal of a post-conviction proceeding.” Haag v. State, 2012 ND 241, ¶ 4, 823 N.W.2d 749.

[¶ 5] “We review an appeal from a summary denial of post-conviction relief as we review an appeal from a summary judgment.” Waslaski, 2013 ND 56, ¶ 7, 828 N.W.2d 787. “The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.” Parizek v. State, 2006 ND 61, ¶ 4, 711 N.W.2d 178. Once the moving party has established there is no genuine issue of fact, the burden shifts to the nonmoving party to show a genuine issue of fact exists. Clark v. State, 1999 ND 78, ¶ 5, 593 N.W.2d 329. The party resisting the motion cannot merely rely on the pleadings or unsupported conclusory allegations; rather the party must present competent admissible evidence by affidavit or other comparable means. Id. “A trial court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a).” Wright v. State, 2005 ND 217, ¶ 9, 707 N.W.2d 242.

III

[¶ 6] On appeal, Lehman argues the district court abused its discretion in summarily dismissing his application for post-conviction relief on statutory grounds which became effective on August 1, 2013. The newly enacted post-conviction statute limiting actions states:

Except as provided in subsection 3, an application for relief under this chapter must be filed within two years of the date the conviction becomes final. A conviction becomes final for purposes of this chapter when:

a. The time for appeal of the conviction to the North Dakota supreme court expires;

b. If an appeal was taken to the North Dakota supreme court, the time for petitioning the United States supreme court for review expires; or

c. If review was sought in the United States supreme court, the date the supreme court issues a final order in the case.

N.D.C.C. § 29–32.1–01(2). A court may still consider an application for post-conviction relief filed after the two-year statute of limitations if one of the following exceptions applies:

(1) The petition alleges the existence of newly discovered evidence, including DNA evidence, which if proved and reviewed in light of the evidence as a whole, would establish that the petitioner did not engage in the criminal conduct for which the petitioner was convicted;

(2) The petitioner establishes that the petitioner suffered from a physical disability or mental disease that precluded timely assertion of the application for relief; or

(3) The petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States supreme court or a North Dakota appellate court and the petitioner establishes that the interpretation is retroactively applicable to the petitioner's case.

N.D.C.C. § 29–32.1–01(3).

[¶ 7] Lehman contends the district court did not rely upon the newly enacted two-year statute of limitations as rationale for dismissing his application. Lehman argues the court focused its ruling on the newly enacted amendments to N.D.C.C. § 29–32.1–09. From the face of the record, it appears Lehman did not file his application for post-conviction relief within the two year time-limit established by the newly enacted statute of limitations in N.D.C.C. § 29–32.1–01. Lehman was originally convicted of kidnapping and terrorizing in September 2009. This Court affirmed his convictions on July 13, 2010. Lehman, 2010 ND 134, 785 N.W.2d 204. Following this Court's affirmance, Lehman did not seek a writ of certiorari to the United States Supreme Court. N.D.C.C. § 29–32.1–01(2)(b); see also Sup.Ct. R. 13(1) (stating, “[u]nless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.”). Thus, under the post-conviction relief statute, Lehman's conviction became final on October 11, 2010, and his August 2, 2013, application could have been barred. See Murphy v. State, 2014 ND 84, 845 N.W.2d 327. However, the State did not raise the statute of limitations defense.

[¶ 8] A statute of limitations defense in a civil proceeding is an affirmative defense. N.D.R.Civ.P. 8(c)(1). Affirmative defenses, including statutes of limitations, are waived if not pleaded. In Interest of K.B., 490 N.W.2d 715, 717 (N.D.1992). Here, the State did not raise the two-year statute of limitations under N.D.C.C. § 29–32.1–01(2). Consequently, the defense was waived, and we will instead address whether the district court properly denied Lehman's post-conviction application under N.D.C.C. § 29–32.1–09(1) and (2).

[¶ 9] The newly enacted amendments to N.D.C.C. § 29–32.1–09 state:

1. The court, on its own motion, may enter a judgment denying a meritless application on any and all issues raised in the application before any response by the state. The court also may summarily deny a second or successive application for similar relief on behalf of the same applicant and may summarily deny any application when the issues raised in the application have previously been decided by the appellate court in the same case.

2. The court, on its own motion, may dismiss any grounds of an application which allege ineffective assistance of postconviction counsel. An applicant may not claim constitutionally ineffective assistance of postconviction counsel in proceedings under this chapter.

Relying on these two amendments, the district court proffered two rationales for denying Lehman's application. First, the court determined that Lehman's allegations in his second application were similar to the allegations in his first petition. Second, the court determined Lehman raised a new claim in his second petition for post-conviction relief, namely that his post-conviction counsel failed to “Investigate whether the Trial Court error'd [sic] when it failed to instruct the jury to view the testimony of the Police Officers with the same credence as it would any other witnesses....” However, the court determined, “Lehman's application could have been a proper claim of ineffective assistance of...