Morrow v. Ziegler
2013 ND 28
| N.D. | 2013Background
- Davis was convicted in 2008 of aggravated assault; Stridiron was convicted of murder in the same incident.
- Their convictions were affirmed on appeal in State v. Stridiron, 2010 ND 19.
- Davis filed a pro se post-conviction relief application in 2010 alleging newly discovered evidence.
- He identified Charles Price as a key witness and later proposed Angela Cook as a person who could corroborate Price’s absence.
- Davis sought leave to depose Angela Cook and later Graylan Bobo to obtain evidence supporting his claim.
- The district court denied the depositions and summarily dismissed the post-conviction relief petition in May 2012.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion denying leave to deposeCook | Davis contends Cook’s testimony was essential to prove Price lied | State argues no competent evidence supports deposition of Cook | No abuse; denial affirmed |
| Whether the district court abused its discretion denying leave to deposeBobo | Davis argues Bobo’s affidavit could show Price lied | State contends Bobo’s statements are hearsay and unlikely to change outcome | No abuse; denial affirmed |
| Whether the post-conviction relief summary dismissal was proper | Davis asserts newly discovered evidence warrants relief | State shows no genuine issue of material fact; evidence unlikely to yield acquittal | Summary dismissal affirmed |
Key Cases Cited
- Wheeler v. State, 2008 ND 109 (ND (2008)) (discovery in post-conviction requires good cause and competent evidence)
- Overlie v. State, 2011 ND 191 (ND (2011)) (post-conviction relief not to relitigate; evidentiary materials not initially required)
- Ude v. State, 2009 ND 71 (ND (2009)) (burden shift to petitioner to show competent admissible evidence if state moves for summary dismissal)
- State v. Stridiron, 2010 ND 19, 777 N.W.2d 892 (ND (2010)) (affirmed convictions; witnesses testified to assault and elements of aggravated assault)
- Greywind v. State, 2004 ND 213, 689 N.W.2d 390 (ND (2004)) (recanted statements; post-conviction relief not based on duplicative evidence)
- Tweed v. State, 2010 ND 38, 779 N.W.2d 667 (ND (2010)) (new trial analysis for newly discovered evidence; four-prong test)
- Moore v. State, 2007 ND 96, 734 N.W.2d 336 (ND (2007)) (establishes standard for newly discovered evidence relief)
- Steinbach v. State, 2003 ND 46, 658 N.W.2d 355 (ND (2003)) (requires concrete evidence beyond pleadings for relief)
- Berlin v. State, 2005 ND 110, 698 N.W.2d 266 (ND (2005)) (summary dismissal standards in post-conviction proceedings)
- Bender v. State, 1998 ND 72, 576 N.W.2d 210 (ND (1998)) (context on post-conviction standards)