Burgess v. N.D. Department of Transportation
2011 ND 226
| N.D. | 2011Background
- Tweed was convicted of murdering Terry Dorff in October 1991 and appealed on jury instruction and vagueness challenges; the conviction was affirmed in 1992.
- In 1992, Sumner was tried for Dorff’s murder and acquitted of murder.
- Tweed sought post-conviction relief in 2008, which the district court denied and this Court affirmed in 2010.
- Tweed filed a second post-conviction relief application in December 2010, asserting newly discovered evidence, ineffective trial counsel, prosecutorial misconduct, and ineffective post-conviction counsel.
- In March 2011, the district court summarily dismissed the second application, citing res judicata and misuse of process, and holding IAC of post-conviction counsel outside the scope of post-conviction relief.
- The Supreme Court affirmed in part, reversed in part, and remanded for further proceedings regarding IAC of post-conviction counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IAC of post-conviction counsel claims were properly dismissed | Tweed argues the claims may be raised in a successive post-conviction petition and deserve an evidentiary hearing. | State contends the claims are outside § 29-32.1 and can be dismissed summarily. | Reversed; remanded for proceedings on IAC of post-conviction counsel. |
| Whether IAC of trial counsel and prosecutorial misconduct claims were properly dismissed | Tweed contends these claims could be pursued and were not barred by res judicata or misuse of process. | State argues these claims were barred by res judicata or misuse of process. | Affirmed dismissal as to those claims. |
| Whether newly discovered evidence and other related claims were barred | Tweed asserts newly discovered evidence and related issues entitle relief. | State maintains res judicata/misuse of process bars these claims. | Affirmed dismissal on res judicata/misuse of process grounds. |
Key Cases Cited
- Tweed v. State, 2010 ND 38 (ND 2010) (affirmed denial of prior post-conviction relief)
- Klose v. State, 2008 ND 143 (ND 2008) (ineffective assistance of post-conviction counsel may be raised in successive petitions)
- Johnson v. State, 2004 ND 130 (ND 2004) (IAC claims may be raised in post-conviction relief)
- Wong v. State, 2010 ND 219 (ND 2010) (summary dismissal should be used sparingly to avoid depriving relief)
- Berlin v. State, 2005 ND 110 (ND 2005) (standards for summary dismissal in post-conviction proceedings)
- Steen v. State, 2007 ND 123 (ND 2007) (second post-conviction relief timing and res judicata considerations)
- Coppage v. State, 2011 ND 227 (ND 2011) (concurrence cited; related post-conviction considerations)