Noorlun v. State
| Decision Date | 25 July 2007 |
| Docket Number | No. 20070009.,20070009. |
| Citation | 2007 ND 118,736 N.W.2d 477 |
| Parties | Lyle J. NOORLUN, Petitioner and Appellant v. STATE of North Dakota, Respondent and Appellee. |
| Court | North Dakota Supreme Court |
Lyle J. Noorlun (submitted on brief), pro se, Marina Del Rey, CA, petitioner and appellant.
Birch Peterson Burdick, State's Attorney, Fargo, N.D., for respondent and appellee.
[¶ 1] Lyle J. Noorlun appeals from a judgment denying his claims for post-conviction relief with the exception of his request for a restitution hearing, which was granted. We hold that Noorlun's claims about the denial of a speedy trial, a double jeopardy violation, and imprisonment for failure to pay a debt are barred by misuse of process and that Noorlun failed to establish his trial attorney provided ineffective assistance of counsel. We affirm.
[¶ 2] Before her death in May 2002, Norma Jordee had made investments with Noorlun, including three promissory notes totaling $250,000, which were renewed at various times. The State claimed the promissory notes were securities and charged Noorlun with three counts of selling or offering to sell unregistered and nonexempt securities, three counts of acting as a security salesman without registering in North Dakota, and three counts of violating a cease and desist order to stop selling securities in North Dakota issued by the North Dakota Securities Commissioner. A jury found Noorlun guilty on all nine counts, and he was given identical concurrent sentences on all nine counts and ordered to pay $250,000 in restitution to Jordee's estate.
[¶ 3] In State v. Noorlun, 2005 ND 189, 705 N.W.2d 819, cert. denied, ___ U.S. ___, 126 S.Ct. 2869, 165 L.Ed.2d 902 (2006), we affirmed Noorlun's convictions, concluding the district court did not err in refusing to give Noorlun's requested jury instruction on the renewal of a promissory note, the court did not abuse its discretion in admitting five typewritten letters with his signature at the bottom of the letters, the evidence was sufficient to support his convictions, the prosecutions for all nine counts were not barred by the statute of limitations, and the record on direct appeal did not support his claims of ineffective assistance of counsel. We affirmed Noorlun's convictions without prejudice to him to pursue an ineffective assistance of counsel claim at a post-conviction proceeding. Id. at ¶ 31.
[¶ 4] In March 2006, Noorlun filed a pro se application for post-conviction relief under N.D.C.C. ch. 29-32.1, and counsel was appointed to represent him in the district court proceeding. In his pro se application, Noorlun essentially claimed the promissory notes were loans, he intended to repay the loans, his acts were not intentional, and the "[j]ury did not hear any of the truth because of incompetent [c]ourt [a]ppointed [a]ttorney." He asserted his court-appointed counsel was ineffective because counsel failed to move to quash the criminal information, which would have caused the statute of limitations to run, counsel failed to call several fact witnesses to establish Noorlun's lack of intent, counsel failed to retain and call a handwriting expert to establish that Noorlun had not signed a receipt for the cease and desist order, and both his trial and appellate counsels failed to move for a mistrial. Noorlun also claimed he was denied his right to a speedy trial, the state charges constituted double jeopardy because federal charges based on the same facts had been dismissed, he was imprisoned for failure to pay a debt, he was denied a change of venue, he was denied a restitution hearing, and he was denied appointment of a different court-appointed attorney.
[¶ 5] After a hearing, the district court denied most of Noorlun's claims for post-conviction relief, but granted his request for a hearing on the amount of his restitution. The court decided Noorlun's trial counsel had not provided ineffective assistance of counsel for failing to move to quash the criminal information, because Noorlun was not in North Dakota for several periods of time leading up to the prosecutions and the statute of limitations was tolled during those periods under N.D.C.C. § 29-04-04. The court thus concluded trial counsel's failure to raise the issue would not have changed the result of the criminal prosecution. The court decided Noorlun's claims about jury instructions and the law regarding promissory notes were decided on direct appeal and were barred by claim and issue preclusion. The court decided it was not ineffective assistance of counsel to refuse to ask for a change of venue because the request would have been futile. The court decided it was not ineffective assistance of counsel to refuse to ask for a mistrial because the defense's strategy was to seek a direct appeal, the appeal was promptly filed at Noorlun's request, and Noorlun did not ask counsel to file a motion for mistrial until after the notice of appeal was filed. The court decided trial counsel's representation was not ineffective for failing to call certain fact witnesses, which Noorlun claimed would have shown his lack of intent, because intent to defraud was not an element of the charges and those witnesses' testimony would have been irrelevant. The court further decided trial counsel's representation was not ineffective for failing to call a handwriting expert to testify that Noorlun did not sign the receipt for the cease and desist order, because his signature was not required to convict him for violating that order and the failure to adduce that evidence was part of trial strategy. Finally, the court decided trial counsel's failure to have Noorlun testify was trial strategy and did not constitute ineffective assistance of counsel. The court, however, granted Noorlun's request for a restitution hearing.
[¶ 6] In the appeal in which he represented himself, Noorlun argues he was denied his right to a speedy and public trial, his state court conviction violated double jeopardy because the federal district court dismissed fraud charges against him relating to the same conduct, and he was imprisoned for failure to pay a debt.
[¶ 7] Under N.D.C.C. § 29-32.1-12(2), an application for post-conviction relief may be denied on the ground of misuse of process. In Clark v. State, 1999 ND 78, ¶ 23, 593 N.W.2d 329 (citations omitted), we explained misuse of process:
[M]isuse of process under N.D.C.C. ch. 29-32.1 occurs (1) if the defendant has inexcusably failed to raise an issue in a proceeding leading to judgment of conviction and now seeks review in a first application for post-conviction relief; (2) if the defendant inexcusably fails to pursue an issue on appeal which was raised and litigated in the original trial court proceedings; and finally, (3) if a defendant inexcusably fails to raise an issue in an initial post-conviction application.
[¶ 8] Noorlun's claims about the denial of a speedy trial, a double jeopardy violation, and imprisonment for failure to pay a debt could have been raised in his direct appeal, and he has not demonstrated any reason for not raising them then. We therefore conclude Noorlun's attempt to raise those issues after failing to pursue them in his direct appeal constitutes a misuse of process, and the district court did not err in denying his request for post-conviction relief on those issues.
[¶ 9] Noorlun claims he was denied effective assistance of counsel during his criminal trial, and but for his counsel's failures, he would have been acquitted. He argues the criminal prosecution was about his failure to repay loans, and his trial counsel provided ineffective assistance of counsel because counsel failed to call certain "fact witnesses to demonstrate that the unpaid debt was due to accidental happenings." Noorlun also argues trial counsel provided ineffective assistance because counsel did not retain and call a handwriting expert to challenge Noorlun's signature on the return receipt on the cease and desist order to show that he had not received that order. Noorlun also asserts trial counsel provided ineffective assistance because counsel did not call Noorlun to testify on his own behalf. In the context of his argument about ineffective assistance of trial counsel, Noorlun also claims he did not receive a hearing before the North Dakota Securities Commissioner on the cease and desist order and also mentions the lack of a change of venue and the denial of a speedy trial.
[¶ 10] Proceedings for post-conviction relief are civil in nature and are governed by the North Dakota Rules of Civil Procedure. Flanagan v. State, 2006 ND 76, ¶ 9, 712 N.W.2d 602. A petitioner for post-conviction relief has the burden of establishing grounds for relief. Id. at ¶ 10. A district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless clearly erroneous under N.D.R.Civ.P. 52(a). Flanagan, at ¶ 9. Ineffective assistance of counsel is a mixed question of law and fact and is fully reviewable on appeal. Id.
[¶ 11] In Flanagan, at ¶ 10 (), we outlined the "heavy burden" required for a petitioner to prevail on a post-conviction claim for ineffective assistance of trial counsel:
The Sixth Amendment of the United States Constitution, made...
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