Keller v. State
2015 ND 228
| N.D. | 2015Background
- In 2003 a jury convicted Brandon Keller of conspiracy to commit murder, attempted murder, and reckless endangerment; sentences were imposed in 2004 and this Court affirmed on direct appeal in 2005.
- Keller moved in May 2014 to correct an illegal sentence asserting his attempted-murder conviction was for an "incognizable" offense (attempted murder under the extreme-indifference murder statute); the motion was denied and not appealed.
- In August 2014 Keller filed a post-conviction relief (PCR) application arguing Dominguez and Borner (2013 decisions) establish his attempted-murder and conspiracy convictions are based on incognizable offenses and thus must be vacated.
- The State moved to dismiss based on the two-year PCR statute of limitations and alternatively asserted res judicata and misuse of process.
- The district court dismissed Keller’s PCR application as time-barred because Keller failed to show the new legal interpretations were retroactively applicable; Keller appealed.
- The Supreme Court affirmed, concluding Keller did not establish that Dominguez or Borner created a new statutory interpretation applicable to his convictions, so the statute-of-limitations exception did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Keller may invoke the PCR statutory exception for a "new interpretation of law" to overcome the two-year limitations period for his attempted-murder conviction | Keller: Dominguez/Coppage establish attempted murder premised on § 12.1-16-01(1)(b) (extreme indifference) is not a cognizable offense; his conviction falls within that category | State: Keller’s instructions/charging documents and jury verdict do not show he was convicted under the § 12.1-16-01(1)(b) theory; statute of limitations bars relief | Held: No—court finds the instructions and information required intentional-attempt elements; Keller failed to show a new interpretation applies to his attempted-murder conviction, so PCR is time-barred |
| Whether Keller’s conspiracy conviction was based on conspiracy to commit extreme-indifference murder (an incognizable offense) | Keller: Borner means conspiracy grounded on § 12.1-16-01(1)(b) is incognizable; jury could have found conspiracy to that theory | State: The information and jury instructions did not reference extreme indifference and the evidence supported intent to kill, so conviction aligns with intentional-murder theory | Held: No—court concludes the charging instrument and instructions did not allege extreme-indifference murder and facts support intent to kill; Borner does not apply |
| Whether Keller is barred by res judicata from raising these claims because he litigated similar arguments in a Rule 35 motion to correct an illegal sentence | Keller: N/A (argued on merits) | State: Res judicata bars re-litigation because Keller previously raised the attempted-murder illegality in a Rule 35 motion | Held: Res judicata inapplicable—Rule 35 cannot attack convictions (only illegal sentences), so prior denial did not preclude a PCR claim based on post-judgment legal developments |
| Whether Keller’s PCR claims constitute misuse of process because he could have raised them earlier | Keller: Claims rely on later appellate decisions (Dominguez/Borner) and were not available earlier | State: Keller inexcusably failed to raise claims previously | Held: Misuse of process inapplicable—claims rest on new appellate interpretations that postdate his conviction and prior procedural windows |
Key Cases Cited
- State v. Keller, 695 N.W.2d 703 (N.D. 2005) (direct appeal affirming convictions)
- Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (held attempted murder premised on § 12.1-16-01(1)(b) extreme-indifference murder is not a cognizable offense)
- State v. Borner, 836 N.W.2d 383 (N.D. 2013) (held conspiracy to commit extreme-indifference murder under § 12.1-16-01(1)(b) is not cognizable)
- Coppage v. State, 843 N.W.2d 291 (N.D. 2014) (applied Dominguez to vacate attempted-murder conviction where jury necessarily found the extreme-indifference theory)
- State v. Erickstad, 620 N.W.2d 136 (N.D. 2000) (explaining extreme-indifference murder is a general-intent offense)