Mbulu v. State, 977 N.W.2d 305

In 2017 Mbulu was convicted of conspiracy to commit gross sexual imposition (GSI), accomplice to GSI, conspiracy to commit murder, and attempted murder; convictions were affirmed on direct appeal.
In 2018 he filed a post-conviction application alleging ineffective assistance of counsel, including that trial counsel failed to subpoena and call co-defendant Jean‑Michael Kisi; he later moved to amend to allege counsel failed to object to jury instructions on the two conspiracy counts.
The district court partially granted the State’s motion to dismiss (including dismissing the failure‑to‑subpoena claim), allowed amendment, held an evidentiary hearing, vacated the conspiracy‑to‑murder conviction (based on this Court’s Pemberton decision), and dismissed the GSI conspiracy‑instruction claim as abandoned.
Mbulu submitted an affidavit from Kisi saying Kisi would have waived the Fifth Amendment and would have testified that Kisi acted alone and inappropriately touched the victim — evidence Mbulu said would have undercut conspiracy/accomplice GSI charges.
The Supreme Court held the district court erred by summarily dismissing the ineffective‑assistance claim about failing to call Kisi (affidavit created a genuine issue of material fact) and remanded for an evidentiary hearing; it affirmed dismissal of the GSI conspiracy‑instruction claim as abandoned and affirmed vacatur/remand for the murder conspiracy count.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance for failing to subpoena/call co‑defendant (Kisi)	Mbulu: Kisi affidavit shows he would waive privilege and testify he acted alone; raises genuine issue; hearing required	State: Not calling Kisi was trial strategy; Kisi likely would invoke Fifth or contradict earlier testimony; no proof counsel would permit waiver	Reversed summary dismissal; affidavit raises triable issue; remand for evidentiary hearing
Jury instruction — conspiracy to commit murder (Pemberton issue)	Mbulu: Instruction used "knowingly," letting jury convict of non‑cognizable attempted "knowing" murder	State: Court applied Pemberton after briefs; State did not appeal the district court relief	District court vacated conspiracy‑to‑murder conviction and remanded for new trial; appellate court affirmed that relief
Jury instruction — conspiracy to commit gross sexual imposition	Mbulu: Instruction omitted required intent language; argument intertwined with murder‑conspiracy claim	State: Mbulu abandoned the claim by failing to present evidence or argument at hearing/post‑hearing brief; instructions differ and didn’t use "knowingly"	Affirmed dismissal as abandoned; no relief on GSI conspiracy instruction

Pinkney v. State, 963 N.W.2d 737 (N.D. 2021) (standard for summary dismissal in post‑conviction proceedings)
Friesz v. State, 969 N.W.2d 465 (N.D. 2022) (petitioner must support post‑conviction application with admissible evidence to avoid summary dismissal)
Morales v. State, 943 N.W.2d 761 (N.D. 2020) (procedure for summary dismissal in post‑conviction cases)
Yoney v. State, 962 N.W.2d 617 (N.D. 2021) (two‑part ineffective assistance standard articulated)
Olson v. State, 927 N.W.2d 444 (N.D. 2019) (ineffective assistance prejudice standard)
Heckelsmiller v. State, 687 N.W.2d 454 (N.D. 2004) (presumption counsel’s performance falls within reasonable professional assistance)
Stein v. State, 920 N.W.2d 477 (N.D. 2018) (trial record often insufficient to resolve ineffective‑assistance claims without hearing)
Schaefer v. Souris River Telecomms. Coop., 618 N.W.2d 175 (N.D. 2000) (court may not weigh evidence or determine credibility on summary disposition)
Rogers v. United States, 340 U.S. 367 (U.S. 1951) (Fifth Amendment privilege is personal to the witness)
Pemberton v. State, 959 N.W.2d 891 (N.D. 2021) (instruction using "knowingly" allowed conviction of non‑cognizable attempted "knowing" murder)
Berg v. Dakota Boys Ranch Ass’n, 629 N.W.2d 563 (N.D. 2001) (issue may be abandoned by failure to develop argument at hearing)
Livingood v. Meece, 477 N.W.2d 183 (N.D. 1991) (district court may dismiss claims not further developed after raised)