Howard v. State, 2015 ND 102

Background

In 2012 a jury convicted Leron Howard of murder and conspiracy; this Court affirmed the convictions on direct appeal in 2013.
Howard filed a verified pro se application for post-conviction relief in Jan 2014 asserting ineffective assistance of counsel, prosecutorial misconduct, and unconstitutional jury selection; he later filed a more detailed second application and a supplement.
The State moved repeatedly for summary disposition under N.D.C.C. § 29-32.1-09(3), arguing Howard provided no admissible evidentiary support for his claims.
Howard was appointed counsel but did not submit affidavits, trial-record citations, or other competent evidence in response to the State’s summary-disposition motions.
The district court granted the State’s motion and summarily dismissed Howard’s application for post-conviction relief without an evidentiary hearing; Howard appealed.
The Supreme Court affirmed, concluding Howard failed to raise a genuine issue of material fact because he relied on unsupported, conclusory allegations and did not present admissible evidence after being put to his proof.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether post-conviction claims (ineffective assistance, prosecutorial misconduct, jury selection) required an evidentiary hearing	Howard: his verified applications (detailed) suffice as evidence to resist summary disposition	State: Howard failed to produce competent admissible evidence or point to trial record as required after being put to his proof	Court: Denied — summary dismissal appropriate because Howard did not raise genuine issues of material fact
Whether a verified post-conviction application can itself constitute competent evidence to oppose summary disposition	Howard: cites Clark and Ennis — verified pleading can function like an affidavit when detailed	State: statutory scheme and precedent require affidavits or comparable admissible evidence once State moves for dismissal	Court: Denied — verified application here was conclusory and did not comply with § 29-32.1-04 record/citation requirements
Whether counsel was ineffective for failing to admit a jailhouse letter and other trial acts	Howard: counsel erred by not admitting letter and failing other objections, producing prejudice	State: letter likely inadmissible and defense used it effectively for impeachment; no showing of different probable result	Court: Denied — no competent evidence of deficient performance or prejudice shown
Whether prosecutor committed misconduct in closing (racial slurs, unsupported statements)	Howard: alleged racial slurs and unsupported argument in closings	State: no evidentiary support in post-conviction filings; trial transcript not cited	Court: Denied — allegations unsupported and no record citations or admissible evidence to create factual dispute

Key Cases Cited

Kinsella v. State, 840 N.W.2d 625 (N.D. 2013) (post-conviction proceedings are civil and governed by civil rules)
Waslaski v. State, 828 N.W.2d 787 (N.D. 2013) (summary dismissal appropriate when no genuine issue of material fact)
Parizek v. State, 711 N.W.2d 178 (N.D. 2006) (preliminary stage inferences and entitlement to hearing if reasonable inference raises genuine issue)
Henke v. State, 767 N.W.2d 881 (N.D. 2009) (petitioner must support application with evidence once State moves for summary disposition)
State v. Bender, 576 N.W.2d 210 (N.D. 1998) (same principle regarding evidentiary support after motion)
Ude v. State, 764 N.W.2d 419 (N.D. 2009) (petitioner must present competent admissible evidence by affidavit or comparable means after being put to proof)
Delvo v. State, 782 N.W.2d 72 (N.D. 2010) (if State shows no genuine issue exists, district court may summarily dismiss)
Vandeberg v. State, 660 N.W.2d 568 (N.D. 2003) (definition of genuine issue of material fact)
Lehman v. State, 847 N.W.2d 119 (N.D. 2014) (nonmoving party cannot rely on unsupported conclusory allegations to resist summary disposition)
Earnest v. Garcia, 601 N.W.2d 260 (N.D. 1999) (court is not required to search the record for evidence supporting a party's position)
Dunn v. State, 709 N.W.2d 1 (N.D. 2006) (summary disposition may be appropriate for ineffective assistance claims when petitioner fails to raise genuine issue of material fact)
First Nat’l Bank of Hettinger v. Clark, 332 N.W.2d 264 (N.D. 1983) (verified pleadings may under certain circumstances be treated as affidavits)
Ennis v. Berg, 509 N.W.2d 33 (N.D. 1993) (discusses circumstances when pleadings may carry evidentiary weight)