Chisholm v. State, 2015 ND 279

Background

Rodney Chisholm was convicted of murdering his brother in 2011 and sentenced to 30 years; conviction was affirmed on direct appeal.
Chisholm filed a pro se post-conviction application claiming ineffective assistance of counsel on multiple grounds; the district court initially dismissed the petition and this Court remanded for further proceedings.
On remand Chisholm amplified five ineffective-assistance claims and obtained an evidentiary hearing; the district court denied relief after hearing testimony and reviewing interview transcripts.
Central factual disputes concerned: whether Chisholm unambiguously invoked Miranda rights during police interrogation; whether counsel failed to investigate/present mental-health or victim-drug-use evidence; and whether Chisholm was properly advised when waiving lesser included offenses (including a belated claim he was given Xanax by counsel).
The district court found Chisholm’s alleged Miranda invocations were ambiguous, counsel’s strategic choices were reasonable, Chisholm produced no expert evidence of dissociation or witnesses about the victim’s drug use, and phone calls after trial suggested Chisholm knowingly waived lesser-included offenses.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to suppress confession (Miranda)	Chisholm says his remarks (e.g., "are we all done?", "put the bad guy back in the cell") were an unambiguous invocation of right to silence; suppression motion would have succeeded	Counsel argues statements were ambiguous, Miranda warnings were given repeatedly, and Chisholm never clearly invoked right to silence or counsel	Court: statements were ambiguous; no unequivocal invocation; counsel not deficient and suppression unlikely to succeed
Whether counsel erred by not raising Miranda issue on direct appeal	Chisholm contends appellate counsel should have argued Miranda violation	Counsel reasonably omitted a meritless claim given the ambiguous invocation	Court: appeal omission was not deficient because the Miranda claim lacked merit
Failure to present psychological expert (dissociation)	Chisholm contends an expert could have explained his mental state and supported self-defense	Counsel: no proffer or discussion of what an expert would say; no evidence the evaluation would have helped	Court: petitioner offered no expert proffer; no prejudice shown; counsel’s choice reasonable
Advising/waiver of lesser included offenses (and Xanax allegation)	Chisholm claims he was impaired (given Xanax by counsel) and did not validly waive lesser included offenses	Counsel: waiver was made knowingly; post-verdict phone calls show Chisholm acknowledged his decision and satisfaction with counsel	Court: waiver was knowing; Xanax allegation raised late without corroboration; counsel not ineffective
Failure to investigate/present victim’s drug use and prior bad acts	Chisholm says counsel failed to develop testimony of recent violent acts by the victim while under influence	Counsel: no credible evidence or prior client allegation that victim had a drug problem; witnesses not produced	Court: no credible evidence presented at hearing linking victim’s drug use to incident; no showing counsel failed to investigate properly

Key Cases Cited

State v. Chisholm, 818 N.W.2d 707 (affirming murder conviction)
Chisholm v. State, 848 N.W.2d 703 (remanding for further post-conviction proceedings)
Roth v. State, 735 N.W.2d 882 (describing petitioner’s burden in ineffective-assistance claims)
Miranda v. Arizona, 384 U.S. 436 (Miranda warnings and custodial interrogation rules)
Berghuis v. Thompkins, 560 U.S. 370 (requirement that invocation of Miranda rights be clear and unambiguous)
Kimmelman v. Morrison, 477 U.S. 365 (prejudice requirement when counsel fails to litigate Fourth Amendment claims)