Moe v. State
2015 ND 93
| N.D. | 2015Background
- David A. Moe was convicted in 2005 of multiple drug offenses (possession with intent to deliver/manufacture and paraphernalia).
- Moe filed an application for post-conviction relief on December 11, 2013, alleging ineffective assistance of counsel, illegal seizure citing Florida v. Jardines, and prosecutorial misconduct.
- The State moved for summary dismissal on general grounds but did not initially assert the two-year statutory time limit in N.D.C.C. § 29-32.1-01(2).
- The district court asked both parties to brief whether Moe’s petition was time-barred; the State then argued the petition was untimely and no exception applied.
- The district court dismissed Moe’s application as filed more than two years after his conviction became final and found no applicable exception under § 29-32.1-01(3).
- Moe appealed, arguing the State waived the statute-of-limitations defense and that the Jardines decision created a retroactive legal rule falling within an exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State waived the two-year statute of limitations by not pleading it in its initial motion | Moe: State waived the defense by failing to plead it | State: Petition untimely; raised defense after court request | Court: No error — although Lehman requires the State to plead the defense, court reasonably asked for briefing because Lehman was not decided when the court acted and parties did not object |
| Whether the district court could dismiss the petition as untimely sua sponte after requesting briefs | Moe: Court erred in applying time limit sua sponte | State: Court properly addressed timeliness when asked for briefing | Held: Court did not err given lack of controlling precedent at the time and both parties briefed the issue |
| Whether an exception to the two-year limit applies based on a new, retroactive constitutional rule (Jardines) | Moe: Jardines announced a new interpretation that should apply retroactively under § 29-32.1-01(3)(a)(3) to exclude evidence | State: No applicable exception; petition untimely | Held: Moe waived this argument by failing to raise the § 29-32.1-01(3) exception before the district court; cannot raise it first on appeal |
| Whether the district court abused discretion in dismissing the petition overall | Moe: Multiple merits arguments (ineffective assistance, illegal search, prosecutorial misconduct) | State: Petition procedurally barred as untimely | Held: Dismissal affirmed — procedural time bar controls; remaining issues either without merit or irrelevant to timeliness |
Key Cases Cited
- Florida v. Jardines, 569 U.S. 1 (2013) (use of a drug-sniffing dog on a homeowner's porch is a Fourth Amendment "search")
- Lehman v. State, 847 N.W.2d 119 (N.D. 2014) (two-year limit for post-conviction relief is a statute of limitations and is an affirmative defense that must be pleaded)
- Risovi v. Job Service North Dakota, 845 N.W.2d 15 (N.D. 2014) (issues not raised in district court cannot be raised for the first time on appeal)
- In re Johnson, 835 N.W.2d 806 (N.D. 2013) (appellate review limited to issues presented to the trial court; trial court should have opportunity to decide)
- Spratt v. MDU Res. Group, Inc., 797 N.W.2d 328 (N.D. 2011) (explaining the policy behind requiring issues be raised first in the trial court)