White Bird v. State, 882 N.W.2d 727

In 2013 White Bird was tried pro se (with standby counsel) and convicted by a jury on five counts including attempted murder and felonious restraint.
On direct appeal, represented by appellate counsel, White Bird argued he was not competent to waive counsel; the North Dakota Supreme Court affirmed that he competently waived counsel. State v. White Bird, 2015 ND 41, 858 N.W.2d 642.
White Bird filed a post-conviction relief (PCR) application claiming ineffective assistance of counsel; the district court initially denied it and later held an evidentiary hearing focused on appellate counsel’s effectiveness.
Appellate counsel testified to reviewing the full record and pursuing a limited set of issues as a strategic choice; White Bird filed and mailed a supplemental pro se brief raising additional issues, which was filed on appeal.
The district court found counsel’s performance was within the wide range of reasonable professional assistance and that White Bird failed to show prejudice; it denied PCR. White Bird appealed the denial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether appellate counsel provided ineffective assistance	White Bird: counsel omitted many issues; performance was defective and prejudicial	State: counsel reasonably selected a few strong issues; White Bird’s pro se supplemental brief raised his concerns	Court: counsel’s performance was not objectively unreasonable; no prejudice shown — PCR denied
Whether PCR may raise appellate counsel claims	White Bird: PCR should consider appellate ineffectiveness	State: district court properly adjudicated appellate claim after reconsideration	Court: assumed PCR applies to appellate counsel and reviewed claim on merits
Whether White Bird can claim ineffective assistance for his trial performance while proceeding pro se	White Bird: sought broader ineffective assistance relief	State: a defendant who elected self-representation cannot claim ineffective assistance of his own defense	Court: White Bird cannot claim trial counsel ineffectiveness because he represented himself; claim limited to appellate counsel
Whether district court’s factual findings were clearly erroneous	White Bird: disputed court’s findings about counsel’s strategy and that issues were raised	State: findings supported by counsel testimony and filing of pro se supplemental brief	Court: findings were supported by a preponderance of evidence and not clearly erroneous

State v. White Bird, 858 N.W.2d 642 (N.D. 2015) (affirming competency to waive counsel)
Tweed v. State, 779 N.W.2d 667 (N.D. 2010) (standard for review of PCR findings)
Heckelsmiller v. State, 687 N.W.2d 454 (N.D. 2004) (presumption counsel’s conduct is reasonable)
Greywind v. State, 689 N.W.2d 390 (N.D. 2004) (questions of law fully reviewable on PCR appeal)
Samburksy v. State, 751 N.W.2d 247 (N.D. 2008) (ineffective assistance is mixed question of law and fact)
State v. McLain, 403 N.W.2d 16 (N.D. 1987) (Strickland standard applied)
State v. Steen, 690 N.W.2d 239 (N.D. 2004) (objective standard of reasonableness for counsel)
State v. Hart, 569 N.W.2d 451 (N.D. 1997) (defendant who represents himself cannot later claim ineffective assistance)
Faretta v. California, 422 U.S. 806 (U.S. 1975) (right to self-representation)

Affirmed: district court order denying post-conviction relief.