Chisholm v. State, 937 N.W.2d 520

Background

Rodney Chisholm was convicted of murder in 2011 and sentenced to 30 years; his direct appeal was affirmed.
Chisholm filed a first postconviction application in 2013 alleging ineffective assistance of trial and appellate counsel; after reversal and remand he ultimately lost on appeal in 2015.
In January 2018 Chisholm filed a second postconviction application alleging newly discovered evidence of trial-judge bias (based on media interviews), erroneous jury instructions, and ineffective assistance of postconviction counsel; he sought recusal and discovery.
The State answered, pleaded res judicata as an affirmative defense, and in its answer requested summary dismissal (but did not file a separate motion); Chisholm acknowledged that request in his reply.
The district court denied recusal and compelled discovery, treated the State’s answer-request as a motion, and summarily dismissed the application; the Supreme Court affirmed dismissal (except as to some procedural issues earlier remanded).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Chisholm had notice of the State’s motion for summary disposition when the request was embedded in the answer	Chisholm argued he lacked proper notice because the State did not file a separate motion	State treated request in its answer as a motion for summary disposition; court relied on Chisholm’s acknowledgement in his reply	Court: Although Rule 3.2 notice would be ideal, Chisholm was effectively on notice because he acknowledged the State’s request in his reply brief, so dismissal could proceed
Whether an applicant may claim ineffective assistance of postconviction counsel in a UPPA proceeding	Chisholm contended his postconviction counsel was ineffective and that claim should be heard	State argued such claims are barred by statute (N.D.C.C. § 29-32.1-09(2))	Court: Claim barred by statute; dismissal proper
Whether Chisholm’s other claims (judge bias, erroneous jury instructions) are barred by res judicata	Chisholm claimed the judge-bias evidence is newly discovered and could not have been raised earlier	State argued the claims were or could have been raised in prior postconviction proceedings and are barred by res judicata	Court: Claims (including waiver of lesser-included instructions) were previously litigated or could have been raised; res judicata bars relitigation; dismissal proper
Whether the district court abused its discretion in denying recusal, discovery, and correcting the record	Chisholm asserted the denials were erroneous and prejudicial	State supported denials as proper procedural rulings	Court: No abuse of discretion; denials affirmed summarily

Key Cases Cited

State v. Chisholm, 2012 ND 147, 818 N.W.2d 707 (direct appeal affirming conviction)
Chisholm v. State, 2014 ND 125, 848 N.W.2d 703 (appellate decision reversing and remanding first postconviction denial)
Chisholm v. State, 2015 ND 279, 871 N.W.2d 595 (affirming denial after remand; discussed waiver of lesser-included instructions)
Wacht v. State, 2015 ND 154, 864 N.W.2d 740 (summary-dismissal standard for postconviction proceedings)
Myers v. State, 2017 ND 66, 891 N.W.2d 724 (review standard for summary dismissal in postconviction cases)
Ourada v. State, 2019 ND 10, 921 N.W.2d 677 (treating embedded dismissal requests as motions and notice requirements)
Jensen v. State, 2019 ND 126, 927 N.W.2d 479 (statutory bar on claims of ineffective assistance of postconviction counsel)
Kalmio v. State, 2018 ND 182, 915 N.W.2d 655 (same statutory principle regarding postconviction counsel claims)
Ungar v. N.D. State Univ., 2006 ND 185, 721 N.W.2d 16 (res judicata prevents relitigation of claims raised or that could have been raised)
Delvo v. State, 2010 ND 78, 782 N.W.2d 72 (discussion of notice when State embeds dismissal request in answer)