Lead Opinion
[¶ 1] John Willard Greywind appealed from a district court order denying his application for post-conviction relief and
I
[¶2] Greywind previously pled guilty to committing robbery while in possession of a dangerous weapon. He filed an application for post-conviction relief on the grounds of ineffective assistance of counsel, imposition of a longer sentence than a co-defendant, and alleged the prosecuting attorney violated his due process rights. The claim of ineffective assistance of counsel alleged a failure of his attorney to inform Greywind he would be required to serve 85% of his sentence before release, failure to inform him that his co-defendant would receive a shorter sentence, and failure to zealously represent him during the proceeding and plea agreement.
[¶ 3] The district court denied the application without a hearing or response from the State. Citing State v. Raulston,
[¶ 4] Greywind’s claim that his attorney failed to zealously represent him during the proceedings was denied because the court found no specific allegation was made in the application and the record established his guilt and competency of counsel. The court also held the claim of prosecutorial misconduct was without merit as the discretion to initiate charges and negotiate plea agreements rests with the prosecutor, and the sentence was consistent with the facts, law, and prior criminal history.
[¶ 5] Greywind filed a motion to reconsider the denial of his application for post-conviction relief. He argued that it was error to deny his application for failure to make a specific allegation under claim of ineffective assistance of counsel as he was not required to include supporting materials or evidence in his application until given notice he was being put on his proof. Because his claim was found frivolous based on information outside of his application for post-conviction relief, he alleged the district court’s dismissal of his claim without a hearing was in error. The district court denied the motion for reconsideration and amended the order denying Greywind’s application for post-conviction relief finding that no specific allegation was made in the application and summary dismissal was appropriate.
II
[¶ 6] Greywind argues the district court erred in summarily dismissing his claim for post-conviction relief. “An applicant has the burden of establishing grounds for post-conviction relief.” Chisholm v. State,
[¶ 7] A summary dismissal of a post-conviction application is analogous to dismissal of a civil complaint under N.D.R.Civ.P. 12(b) for failure to state a claim upon which relief can be granted. Wong v. State,
[¶ 8] "When matters outside the pleading are considered, the motion must be treated as a motion for summary judgment under N.D.R.Civ.P. 56. Wong,
[¶ 9] In addressing Greywind’s allegation of ineffective assistance of counsel based on a failure to zealously advocate for him throughout the criminal proceeding and plea agreement, the district court in its order dismissing Greywind’s application stated:
Petitioner makes no specific allegation. Since a large majority of defendants enter guilty pleas, that in itself is not unusual or lacking in jealousness [sic]. The incriminating evidence was strong and the minimum mandatory sentence was not going away. As admitted at the sentencing hearing, the petitioner was the muscle to the robbery and he held and exposed the knife when dealing with the employee. He seemed eager to plead guilty and begin serving his time. Petitioner had competent legal counsel.
We have previously reversed a summary dismissal of an application for post-conviction relief where the district court determined the application could not prove an ineffective assistance of counsel claim based on evidence from the prior criminal proceeding. Chisholm,
[¶ 10] “The party opposing the motion for summary disposition is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact.” Wong,
Ill
[¶ 11] Greywind argues the district court erred in denying his motion to reconsider the denial of his application for post-conviction relief. We treat motions for reconsideration as either motions to alter or amend a judgment under N.D.R.Civ.P. 59(j), or as motions for relief from a judgment or order under N.D.R.Civ.P. 60(b). Riak v. State,
[¶ 12] “We will not reverse a district court’s denial of a motion for reconsideration on appeal ‘absent a manifest abuse of discretion.’ ” Id. (quoting Waslaski v. State,
IV
[¶ 13] We reverse the district court’s order denying Greywind’s application for post-conviction relief and remand for the court to allow Greywind to file a brief with supporting materials and, if appropriate, an evidentiary hearing.
Concurrence Opinion
concurring.
[¶ 15] I concur in the result reached by the majority opinion. I write separately to note that in addition to the reasons for reversal cited by the majority, the district court also failed to give appropriate notice prior to summarily dismissing the application for post-conviction relief. As noted in Chisholm v. State,
[IT 16] LISA FAIR MCEVERS