Coppage v. State, 807 N.W.2d 585

Coppage was convicted in 2006 of attempted murder and aggravated assault after a trial with pretrial jury instructions treating aggravated assault as a lesser-included offense.
He challenged the verdict on direct appeal, which this Court affirmed in 2008.
He then filed a 2009 post-conviction relief (PCR) application alleging ineffective trial, appellate, and post-conviction counsel plus other issues; that application was denied without an appeal.
In 2010 Coppage filed a second PCR asserting double jeopardy, improper impeachment evidence, prosecutorial misconduct, and failure to return the jury for further deliberations; he sought appointed counsel.
The State moved to dismiss the 2010 PCR as barred by res judicata and misuse of process; Coppage argued ineffective assistance of post-conviction counsel excused not raising issues earlier.
The majority reverses and remands for an evidentiary hearing on Coppage’s evidentiary and prosecutorial misconduct claims and the ineffective assistance of post-conviction counsel claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary dismissal was proper where factual disputes exist	Coppage asserts genuine issues of material fact about counsel ineffectiveness and misconduct.	State argues res judicata/misuse of process bars and no genuine issue of material fact.	No; the claims raise genuine issues of material fact requiring an evidentiary hearing.
Whether ineffective assistance of post-conviction counsel can excuse failure to raise claims earlier	Coppage's first PCR counsel was ineffective, excusing failure to raise issues.	State contends res judicata/misuse of process apply despite counsel's alleged ineffectiveness.	Coppage's ineffective-assistance claim raises a genuine issue of material fact; merits an evidentiary hearing.
Whether res judicata/misuse of process barred the 2010 PCR claims	Ineffective post-conviction counsel excused non-raising, so res judicata does not bar.	Res judicata and misuse of process bar the claims.	Res judicata does not bar the ineffective-assistance claim; erroneous to summarily dismiss without a hearing.

Henke v. State, 767 N.W.2d 881 (2009 ND 117) (standard for denying/entitlement to evidentiary hearing in PCR)
Klose v. State, 752 N.W.2d 192 (2008 ND 143) (standard for ineffective assistance standard and need for proof)
Ude v. State, 764 N.W.2d 419 (2009 ND 71) (preliminary burden and evidentiary hearing expectations)
Jones v. State, 545 N.W.2d 313 (Iowa 1996) (ineffective assistance can excuse failure to raise issues)
State v. Stewart, 646 N.W.2d 712 (2002 ND 102) (prior convictions and balancing for admissibility of impeachment evidence)
Coleman v. Thompson, 501 U.S. 722 (1991) (no constitutional right to counsel in state post-conviction proceedings)
Wong v. State, 790 N.W.2d 757 (2010 ND 219) (injury to evidentiary hearing usually needed for ineffective assistance claims)
Murchison v. State, 658 N.W.2d 320 (2003 ND 38) (misuse of process considerations in PCR)
Johnson v. State, 681 N.W.2d 769 (2004 ND 130) (Strickland standard applied in ND post-conviction)
Jones v. Barnes, 463 U.S. 745 (1983) (appellate strategy and winnowing weaker arguments)