915 N.W.2d 655
N.D.2018Background
- In 2013 Omar Kalmio was convicted of four counts of class AA felony murder; this Court affirmed in 2014.
- Kalmio filed a post-conviction relief (PCR) application alleging ineffective assistance of trial and appellate counsel, prosecutorial misconduct (inflammatory images on presentation slides), admission of hearsay/prior-bad-acts testimony, and newly discovered evidence.
- Kalmio repeatedly amended his PCR application (six amendments total); the district court granted partial summary disposition, held evidentiary hearings, and ultimately denied relief, also restricting further amendments.
- The district court found trial counsel was not ineffective for failing to preserve slides or for the decision as to Kalmio testifying; Kalmio withdrew some trial-counsel claims at a later hearing.
- The district court found appellate counsel’s decisions on issue selection were reasonable; the Supreme Court of North Dakota reversed that portion, concluding appellate counsel’s intentional waiver of a prior-bad-acts argument to preserve it for PCR was objectively unreasonable and created a misuse-of-process problem.
- The Supreme Court affirmed the district court on denial of the fifth/sixth amendments and most trial-counsel ineffectiveness claims, reversed on the first Strickland prong as to appellate counsel, and remanded for findings on prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| District court denial of 5th/6th amendments to PCR application | Denial improperly barred meritorious claims; amendments were timely and relevant | Court had discretion; prior orders prohibited further self-filed amendments and amendments were unduly delayed | Affirmed — district court did not abuse discretion in denying further amendments |
| Trial counsel ineffective for failing to preserve presentation slides (prosecutorial misconduct) | Counsel failed to preserve evidence of inflammatory images which prejudiced trial | Images were not sufficiently prejudicial; jury instructed to disregard; preservation would not have changed outcome | Affirmed — no clear error; counsel not ineffective on this claim |
| Trial counsel ineffective for failing to call Kalmio as witness / other trial strategy claims | Counsel’s decisions deprived Kalmio of effective assistance and denied his testimony | Record shows adequate colloquy and informed decision; no genuine factual dispute to require relief | Affirmed — district court properly found no material factual dispute and denied relief |
| Appellate counsel ineffective for waiving prior-bad-acts issue on direct appeal to preserve it for PCR | Waiver was tactical to preserve issue for PCR; counsel believed misuse-of-process could be avoided later | Waiver meant the issue was waived on direct appeal and created misuse-of-process; tactic was objectively unreasonable | Reversed in part — district court erred on Strickland prong one; remanded to determine prejudice (Strickland prong two) |
Key Cases Cited
- State v. Kalmio, 2014 ND 101, 846 N.W.2d 752 (affirming conviction; addressing hearsay and presentation slide images)
- Strickland v. Washington, 466 U.S. 668 (establishing two-prong ineffective-assistance test)
- Jones v. Barnes, 463 U.S. 745 (appellate counsel not required to raise every nonfrivolous issue)
- Wainwright v. Torna, 455 U.S. 586 (discussing counsel guaranteed at certain stages)
- Moore v. State, 2013 ND 214, 839 N.W.2d 834 (applying Strickland to appellate-counsel claims)