State v. Lueder, No. 536-A

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtPAULSON; ERICKSTAD
Citation267 N.W.2d 555
PartiesSTATE of North Dakota, Plaintiff-Appellee, v. Robert M. LUEDER, Defendant-Appellant. Crim.
Decision Date28 June 1978
Docket NumberNo. 536-A

Page 555

267 N.W.2d 555
STATE of North Dakota, Plaintiff-Appellee,
v.
Robert M. LUEDER, Defendant-Appellant.
Crim. No. 536-A.
Supreme Court of North Dakota.
June 28, 1978.

Page 556

Robert M. Lueder, pro se.

Thomas B. Jelliff, State's Atty., Grand Forks, for plaintiff-appellee.

PAULSON, Judge.

On August 27, 1977, Robert M. Lueder, petitioned the Grand Forks District Court to vacate the judgment of conviction entered against him on January 29, 1965, upon his plea of guilty to a charge of first-degree robbery. The application for relief was brought under North Dakota's Uniform Post-Conviction Procedure Act, Chapter 29-32 of the North Dakota Century Code. On December 5, 1977, the district court entered an order denying Lueder's request for relief, and Lueder now appeals to this court from that order.

Lueder has filed a Motion for Judgment with this court requesting the relief sought in his brief on the ground that the State failed to file a timely brief. Lueder's brief was filed with this court on January 23, 1978, and his Motion for Judgment was filed on March 21, 1978. The State filed its brief with this court on March 29, 1978.

Pursuant to Rule 31(a) of the North Dakota Rules of Appellate Procedure the appellee "shall serve and file his brief within thirty days after service of the brief of the appellant". Under Rule 31(c), N.D.R.App.P., an appellee who fails to file his brief will not be heard at oral argument except by permission of the court. Both parties waived oral arguments on this appeal and therefore Lueder could not possibly have been prejudiced by the State's late filing of its brief. This court looks with strong disfavor upon the irresponsible practice of filing a late brief. Nevertheless, the State's late filing of its brief, under the circumstances, presents no basis upon which this court can grant Lueder's requested relief. Accordingly, Lueder's Motion for Judgment is denied.

Page 557

This is the second application for post-conviction relief from the January 29, 1965, judgment that Lueder has brought under the Uniform Post-Conviction Procedure Act. In State v. Lueder, 242 N.W.2d 142 (N.D.1976), this court affirmed the district court's denial of post-conviction relief.

Lueder now raises the following issues for review, which he has delineated as follows:

Point I. The Grand Forks juvenile court erred in summarily waiving jurisdiction over the petitioner, since the basis for its waiver, petitioner's confession to the alleged crimes in question, was unconstitutionally extracted through coercive measures.

Point II. Petitioner's prior involvement with the Great Falls, Montana, juvenile authorities, and his November 20, 1964, conviction in Minot, North Dakota, for burglary, did not constitute probable cause to waive juvenile jurisdiction in Grand Forks.

Point III. Petitioner's plea of guilty was neither voluntarily nor intelligently entered, since it was predicated on a coerced confession, and the assumption that the confession extracted by the Minot police rebutted any further protest of innocence to his charge of robbery in Grand Forks.

Point IV. The district court erred in using the petitioner's prior conviction in Minot, North Dakota, as a recidivist in its determination of the type or amount of punishment to impose.

Point V. In consideration of this court's recent decision in State v. Lueder, 252 N.W.2d 861 (N.D.1977), an order should issue granting petitioner a full evidentiary hearing in order that an adequate record may be formulated.

Section 29-32-08, N.D.C.C., limits an applicant's right to seek post-conviction relief through multiple proceedings. It provides as follows:

"29-32-08. Waiver of or failure to assert claims. All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental, or amended application. Any ground finally adjudicated or not so raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the applicant has taken to secure relief may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application."

Pursuant to this section, an issue which is finally adjudicated in a prior post-conviction proceeding cannot be asserted in a subsequent request for relief under Chapter 29-32, N.D.C.C., unless the court finds that there is "sufficient reason" why the issue was inadequately raised in the prior proceeding. This section also provides that any issue not...

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7 practice notes
  • State v. Willey, No. 1112
    • United States
    • United States State Supreme Court of North Dakota
    • 22 Enero 1986
    ...sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application." In State v. Lueder, 267 N.W.2d 555 (N.D.1978), this court held that under Section 29-32-08, N.D.C.C., any issue finally adjudicated in a prior post-conviction proceeding, or......
  • State v. Gustafson, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 12 Abril 1979
    ...for all further proceedings. ERICKSTAD, C. J., and PAULSON, SAND and VANDE WALLE, JJ., concur. --------------- 1 In State v. Lueder, 267 N.W.2d 555, 556 (N.D.1978), we said that we look with strong disfavor upon the irresponsible practice of filing a late brief. We denied Lueder a judgment ......
  • State v. Manke, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 23 Enero 1985
    ...(1982); Geelan v. State, 85 S.D. 346, 182 N.W.2d 311 (1970); Orricer v. State, 85 S.D. 293, 181 N.W.2d 461 (1970). Cf. State v. Lueder, 267 N.W.2d 555 (N.D.1978) (issues finally adjudicated in prior post-conviction proceeding cannot be asserted in subsequent post-conviction proceeding unles......
  • State v. Ebert, No. 89-1948
    • United States
    • Court of Appeals of Wisconsin
    • 22 Febrero 1990
    ...citing Palmer v. Dermitt, 635 P.2d 955, 959 (Idaho 1981); Cuevas v. State, 372 N.W.2d 284, 286 (Iowa Ct.App.1985); and State v. Lueder, 267 N.W.2d 555, 557 Ebert has made no attempt to explain why he did not assert in his earlier sec. 974.06, Stats., motion the grounds upon which he now see......
  • Request a trial to view additional results
7 cases
  • State v. Willey, No. 1112
    • United States
    • United States State Supreme Court of North Dakota
    • 22 Enero 1986
    ...sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application." In State v. Lueder, 267 N.W.2d 555 (N.D.1978), this court held that under Section 29-32-08, N.D.C.C., any issue finally adjudicated in a prior post-conviction proceeding, or......
  • State v. Gustafson, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 12 Abril 1979
    ...for all further proceedings. ERICKSTAD, C. J., and PAULSON, SAND and VANDE WALLE, JJ., concur. --------------- 1 In State v. Lueder, 267 N.W.2d 555, 556 (N.D.1978), we said that we look with strong disfavor upon the irresponsible practice of filing a late brief. We denied Lueder a judgment ......
  • State v. Manke, Cr. N
    • United States
    • United States State Supreme Court of North Dakota
    • 23 Enero 1985
    ...(1982); Geelan v. State, 85 S.D. 346, 182 N.W.2d 311 (1970); Orricer v. State, 85 S.D. 293, 181 N.W.2d 461 (1970). Cf. State v. Lueder, 267 N.W.2d 555 (N.D.1978) (issues finally adjudicated in prior post-conviction proceeding cannot be asserted in subsequent post-conviction proceeding unles......
  • State v. Ebert, No. 89-1948
    • United States
    • Court of Appeals of Wisconsin
    • 22 Febrero 1990
    ...citing Palmer v. Dermitt, 635 P.2d 955, 959 (Idaho 1981); Cuevas v. State, 372 N.W.2d 284, 286 (Iowa Ct.App.1985); and State v. Lueder, 267 N.W.2d 555, 557 Ebert has made no attempt to explain why he did not assert in his earlier sec. 974.06, Stats., motion the grounds upon which he now see......
  • Request a trial to view additional results

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