Moore v. State
2013 ND 214
| N.D. | 2013Background
- Kevin Moore pleaded guilty to attempted murder, unsuccessfully appealed, and filed two prior postconviction applications before filing a third pro se application alleging newly discovered evidence undermining intent and coercion of his plea.
- The district court appointed counsel for Moore; one appointed attorney withdrew, a second filed a notice of appearance and a discovery request but filed no brief or supporting evidence opposing the State’s motion to summarily dismiss.
- The State moved for summary dismissal, arguing Moore offered only allegations and no competent evidence; Moore submitted no affidavits or other admissible support in district court.
- The district court summarily dismissed Moore’s third postconviction application; Moore appealed, primarily alleging ineffective assistance of postconviction counsel for failing to file a supporting brief.
- The Supreme Court of North Dakota affirmed: summary dismissal was proper because Moore failed to produce competent admissible evidence after the State’s motion, and the appellate record did not establish prejudice from counsel’s inaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was summary dismissal proper where petitioner alleged newly discovered evidence but filed no supporting affidavits after State moved to dismiss? | Moore: his pro se assertion of new evidence showing lack of intent warranted an evidentiary hearing and withdrawal of plea. | State: Moore offered only bare allegations; summary dismissal proper absent competent admissible evidence. | Held: Affirmed dismissal — petitioner failed to meet the minimal evidentiary burden after State's motion. |
| Can Moore raise ineffective-assistance-of-postconviction-counsel claim on this appeal based on counsel’s failure to file a brief? | Moore: appellate relief because appointed postconviction counsel failed to file a responsive brief, constituting ineffective assistance. | State: such claims are poorly raised on direct appeal and require a record showing prejudice; Coleman limits constitutional claims in postconviction proceedings. | Held: Court assumed counsel’s performance might be deficient but declined relief because record does not establish prejudice; ineffective-assistance claim not proven on this record. |
| What standard governs ineffective-assistance claims for postconviction counsel in ND? | Moore: N/A (argues ineffective assistance). | State: Strickland standard applies (ND precedent), but Coleman limits constitutional right in postconviction proceedings. | Held: Applied Strickland standard (ND precedent) but required both deficient performance and prejudice; petitioner failed to prove prejudice. |
| Was there prejudice from counsel’s inaction sufficient to meet Strickland’s second prong? | Moore: absence of counsel’s response deprived him of opportunity to avoid dismissal and obtain hearing. | State: record contains no new admissible evidence; prior proceedings already addressed intent issues; Moore cannot show likely different outcome. | Held: No — petitioner failed to demonstrate a reasonable probability the outcome would differ; prejudice not shown. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective-assistance claims: deficient performance and prejudice)
- Coleman v. Thompson, 501 U.S. 722 (1991) (no constitutional right to counsel in state postconviction proceedings)
- Johnson v. State, 681 N.W.2d 769 (N.D. 2004) (applying Strickland to postconviction counsel claims in North Dakota)
- Davis v. State, 827 N.W.2d 8 (N.D. 2013) (when State moves for summary dismissal petitioner must support application with competent admissible evidence)
- Ude v. State, 764 N.W.2d 419 (N.D. 2009) (same principle on minimal burden shift after State's summary dismissal motion)
- Moore v. State, 734 N.W.2d 336 (N.D. 2007) (prior postconviction proceedings addressing intent and evidentiary hearing)