807 N.W.2d 599
N.D.2011Background
- TweEd was convicted of murder in 1991; appellate relief affirmed.
- Sumner was tried for Dorff’s murder in 1992 and acquitted.
- Tweed petitioned for post-conviction relief in 2008; denied and affirmed on appeal in 2010 ND 38.
- Tweed filed a second post-conviction relief application in December 2010 with multiple claims.
- District court in March 2011 summarily dismissed the second PCR application, holding some claims barred by res judicata and misuse of process and others outside the scope of PCR.
- This appeal challenges the district court’s summary dismissals, particularly the claim of ineffective assistance of post-conviction counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can IAC of post-conviction counsel be raised in a second PCR? | Tweed argues these claims are actionable and not barred. | State contends the claims are outside PCR scope and improperly barred. | Court held IAC of post-conviction counsel claims may be raised and reversed summary dismissal. |
| Were Tweed's other newly discovered evidence, trial IAC, prosecutorial misconduct, and competency claims properly dismissed as barred or out of PCR scope? | Tweed contends these claims were properly raised and should not have been summarily dismissed. | State argues these claims are barred by res judicata or misuse of process, or outside PCR scope. | District court’s summary dismissal of these claims affirmed as to bar/misuse but remand on IAC of PCR counsel. |
| What is the proper standard for summary dismissal under NDCC 29-32.1-06(2)? | Summary dismissal requires careful scrutiny and is inappropriate when a real claim could be proven. | State argues it correctly applied statutory standards to dismiss as appropriate. | Court emphasizes sparing use of summary dismissal and proper light for applicant’s allegations. |
Key Cases Cited
- Wong v. State, 790 N.W.2d 757 (ND 2010) (summary dismissal power should be used sparingly to protect rights)
- Klose v. State, 752 N.W.2d 192 (ND 2008) (ineffective assistance of post-conviction counsel may be raised in successive PCR)
- Johnson v. State, 681 N.W.2d 769 (ND 2004) (procedural framework for PCR claims)
- Steen v. State, 736 N.W.2d 457 (ND 2007) (res judicata/misuse of process bar in second PCR)
- Berlin v. State, 698 N.W.2d 266 (ND 2005) (limitations on post-conviction relief procedures)