Chisholm v. State, 2014 ND 125

Rodney Chisholm was convicted of murder by a jury in 2011; conviction affirmed on direct appeal (State v. Chisholm).
On August 26, 2013, Chisholm filed a pro se application for post-conviction relief alleging multiple instances of ineffective assistance of trial and appellate counsel (Miranda issue, failure to suppress confession, failure to challenge search, counsel’s alleged drug addiction, and failure to challenge victim’s prior bad acts).
Chisholm later filed a supporting brief (by counsel) emphasizing two Miranda-related ineffective-assistance claims: failure to move to suppress the confession and failure to raise the Miranda issue on appeal.
The State responded to Chisholm’s brief but did not move for summary dismissal; the district court nevertheless, on its own motion, entered an order summarily dismissing the application after considering the trial record.
The district court concluded the Miranda claim lacked merit because Chisholm had not clearly and unequivocally invoked the right to cease questioning, treated the dismissal as supported by the record, and did not address all claims Chisholm had raised.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court may summarily dismiss a post-conviction application on its own motion without notice or opportunity to be heard when it relies on materials outside the application	Chisholm: court erred by dismissing on its own motion without notice or chance to present evidence when the court relied on the trial record	State: amended N.D.C.C. § 29-32.1-09(1) authorizes courts to summarily dismiss meritless applications on their own motion, relying on the record, without affording notice	Court: reversed — when a court considers matters outside the application, dismissal is treated like summary judgment and applicant must be given notice and opportunity to respond; statutory amendment did not eliminate that requirement
Whether Chisholm abandoned other issues in his application and whether the court erred by not addressing them	Chisholm: he did not abandon the other five issues merely because he briefed two; all issues should be considered on remand	State: argued Chisholm appeared to have abandoned issues not briefed	Court: because dismissal was erroneous, all issues in the application may be considered on remand

Overlie v. State, 2011 ND 191, 804 N.W.2d 50 (explaining limits on court-initiated summary dismissal and notice/response requirement when court considers matters outside the pleading)
Wong v. State, 2010 ND 219, 790 N.W.2d 757 (holding applicant must receive notice and opportunity to present evidence before summary dismissal treated like summary judgment)
Parizek v. State, 2006 ND 61, 711 N.W.2d 178 (discussing summary disposition analogous to summary judgment in post-conviction proceedings)
Berlin v. State, 2005 ND 110, 698 N.W.2d 266 (court may dismiss for failure to state claim but must treat consideration of outside materials as summary judgment)
Bender v. State, 1998 ND 72, 576 N.W.2d 210 (post-conviction procedures permit development of additional evidence beyond trial transcript)
State v. Chisholm, 2012 ND 147, 818 N.W.2d 707 (direct appeal affirming conviction cited as underlying conviction)
Osier v. State, 2014 ND 41, 843 N.W.2d 277 (applicant bears burden to establish grounds for post-conviction relief)