Owens v. State, No. 20000128

• Citation: 2001 ND 15,621 N.W.2d 566
• Decision Date: 30 January 2001
• Docket Number: No. 20000129., No. 20000128
• Parties: Earl L. OWENS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.
• Court: United States State Supreme Court of North Dakota

621 N.W.2d 566

2001 ND 15

Earl L. OWENS, Petitioner and Appellant, v. STATE of North Dakota, Respondent and Appellee.

Nos. 20000128, 20000129.

Supreme Court of North Dakota.

January 30, 2001.

Earl L. Owens, pro se, North Dakota State Penitentiary, Bismarck, ND, petitioner and appellant.

Bruce A. Romanick, Assistant State's Attorney, Bismarck, ND, for respondent and appellee.

SANDSTROM, Justice.

[¶ 1] Earl L. Owens appeals from an order of the district court dismissing an application for post-conviction relief. Owens contends his attorney failed to appeal his conviction as he directed. We affirm, concluding the district court properly dismissed the post-conviction relief application because Owens inexcusably failed to raise the issue in a previous post-conviction proceeding.

I

[¶ 2] On April 10, 1996, Owens was convicted of two counts of theft by deception and two counts of attempted theft by deception, all class C felonies. On the same date, Owens was convicted of a class A misdemeanor for giving false information to a law enforcement officer. Owens, acting pro se, filed a motion for a new trial on April 19, 1996. The district court denied the motion for new trial on May 8, 1996. On May 16, 1996, Owens wrote a letter to the district court requesting a new court-appointed attorney. In his letter Owens stated, "I have every intention on appealing the conviction of the past trial." The letter suggests his request for a new attorney was based on trial counsel's performance.

[¶ 3] New counsel was appointed by the district court. A conflict of interest arose with the new attorney, so a third attorney, Robert Martin, was appointed to represent Owens. On June 7, 1996, Owens appeared in the district court with Martin and was sentenced on the charges. No appeal of the conviction was filed on behalf of Owens. Owens, acting pro se, filed numerous motions in the district court, including an application for post-conviction relief filed on July 29, 1996. On August 1, 1996, the district court sent Owens a letter denying all of his pro se motions, identifying Martin as appellate counsel, and instructing Owens to "[c]onfer and cooperate with your court appointed attorney."

[¶ 4] On Owens' behalf, attorney Martin applied for post-conviction relief on November 25, 1996; an amendment to the application was filed on January 21, 1997. The State responded to the application on January 21, 1997, and moved for summary disposition. The district court denied Owens' application on May 22, 1997.

[¶ 5] Acting pro se, Owens appealed on June 3, 1997. On June 19, 1997, we temporarily remanded to the district court to allow Owens to bring additional motions. Owens, pro se, filed a third amendment in the district court. The third amended application, dated June 24, 1997, contained in excess of twenty issues, including the allegation that "Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was [sic] no grounds for appeal." On July 11, 1997, the district court denied the relief requested by Owens in his third amended application for post-conviction relief. Further documents were filed in this Court, including Owens' brief listing twenty-six issues. Issue twenty-six in Owens' appeal stated, "Was the petitioner denied the opportunity to appeal the conviction. Was letter to the trial judge sufficient to give notice of appeal." On May 20, 1998, we affirmed the district court's denial of Owens' application for post-conviction relief. Owens v. State, 1998 ND 106, 578 N.W.2d 542.

[¶ 6] On March 15, 2000, Owens again applied for post-conviction relief. Upon request from the State, the district court denied Owens' request on April 19, 2000, by summary disposition. Owens appeals from this latest denial of post-conviction relief, arguing the district court erred in denying his post-conviction relief application primarily because his lawyer had failed to file a direct appeal as instructed.

[¶ 7] The district court had jurisdiction under N.D.C.C. § 27-05-06 and N.D.C.C. § 29-32.1-03(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, N.D.C.C. § 29-28-06, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant; post-conviction proceedings are civil in nature. State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987); State v. Kunkel, 366 N.W.2d 799, 803 (N.D. 1985). A party opposing a motion for summary disposition under the Uniform Post Conviction Procedure Act must raise an issue of material fact. See Hopfauf v. State, 1998 ND 30, ¶ 4, 575 N.W.2d 646

(citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)).

[¶ 9] "Res judicata and misuse of process are affirmative defenses to be pleaded by the state." N.D.C.C. § 29-32.1-12(3). "The burden of proof is also upon the state, but, as to any ground for relief which, by statute or rule of court, must be presented as a defense or objection at a specified stage of a criminal prosecution, the applicant shall show good cause for noncompliance with the statute or rule." Id.

A

[¶ 10] Owens contends the courts have failed to address the issue of whether or not he has been denied a right to direct appeal. Owens previously appealed similar issues to this Court. Owens v. State, 1998 ND 106, ¶¶ 4-6, 578 N.W.2d 542. Owens contends he urged the district court to consider the fact that his appellate attorney did not file a direct appeal. Aside from Owens' bare assertions and affidavit indicating he urged appellate counsel to directly appeal, the record does not establish that Owens was denied a right to appeal.

[¶ 11] Owens sent the district court a letter stating he intended to appeal his conviction; however, neither Owens nor his attorneys ever filed an appeal. Notwithstanding Owens' argument that the courts have not reviewed his direct appeal claim, he argued similar claims in his third amended application for post-conviction relief and in his previous argument before this Court.

B

[¶ 12] The State argues Owens' claims should be denied because they are simply variations of his original post-conviction petition or because his claims are a misuse of process. Misuse of process can be a ground for denying a claim when the applicant "[p]resents 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 if the applicant "[f]iles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous." N.D.C.C. § 29-32.1-12(2).

[¶ 13] Owens' claim of ineffective assistance of counsel was brought in his prior post-conviction relief applications. We have held denial of a second motion for post-conviction relief is proper when a defendant's argument "was not made in his previous post-conviction challenge to the same probationary sentences." State v. Johnson, 1997 ND 235, ¶ 5, 571 N.W.2d 372. In Johnson, we held the argument was "simply a variation" of an earlier appeal and was therefore a misuse of the post-conviction process. Id. at ¶¶ 11-12.

[¶ 14] We have denied post-conviction relief in other cases where the defendant simply varied previous arguments. Id. at ¶ 13 (citing McMorrow v. State, 537 N.W.2d 365 (N.D.1995); Woehlhoff v. State, 531 N.W.2d 566, 567 (N.D.1995)). The district court's order implies misuse of process, stating, "All the issues in Petitioner's most recent request for post-conviction relief have been previously reviewed at the trial level and by the North Dakota Supreme Court. Denial of Petitioner's previous requests for post-conviction relief was upheld by the North Dakota Supreme Court. Nothing has changed. Petitioner is not entitled to post-conviction relief."

[¶ 15] The lengthy history of this case establishes Owens had numerous opportunities to raise his direct appeal issue. He filed numerous pro se motions in the district court. He filed two pro se applications for post-conviction relief. Addressing twenty-six issues, Owens previously appealed to this Court pro se. The State has pleaded and proved misuse of process. Owens has failed to show good cause for failing to previously raise the issues he now presents.

[¶ 16] We hold Owens' current argument, that counsel did not directly appeal his conviction, is simply a variation of his previous arguments. Failure to raise this argument in prior post-conviction proceedings is inexcusable and therefore constitutes a misuse of process.

III

[¶ 17] The dissent argues the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), requires a reversal in this case. In doing so, the dissent obscures the facts, and misanalyzes and overreaches the United States Supreme Court decision.

[¶ 18] Flores-Ortega's attorney did not file an appeal after allegedly having promised to do so. Within a month of learning no appeal had been filed, Flores-Ortega tried to file his own notice of appeal, which was rejected as untimely. Flores-Ortega promptly sought state court relief, raising the specific issue. When that was denied, he promptly sought federal post-conviction relief—a petition for writ of habeas corpus—on the grounds he had directed his attorney to appeal and the attorney had not done so.

[¶ 19] Owens, on the other hand, in all of his previous petitions and supporting papers, never asserted he had directed his attorney to appeal and the attorney had failed to do so. Nearly four years later, in the immediate aftermath of the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), Owens for the first time asserts that in 1996 he directed his attorney to appeal and his attorney failed to do so. Owens' previous filings, however, contradict his new assertion.

[¶ 20] Owens, in his August 1, 1996, letter to the trial court judge, stated he...