[¶ 1] Brandon Lee Ude appeals from a district court order denying his application for post-conviction relief based on his claim of ineffective assistance of counsel. We affirm, concluding the district court did not deny him the opportunity to present testimony and did not err in denying his application for post-conviction relief.
I
[¶ 2] Brandon Lee Ude pled guilty to aggravated assault, violation of a domestic violence protection order, interference with telephone during an emergency call, stalking, and two counts of violation of a domestic violence protection order. Criminal judgments were entered in November 2007. Ude moved for a sentence reduction under N.D.R.Crim.P. 35 in February 2008. The court denied his motion.
[¶3] On September 8, 2008, Ude аpplied for post-conviction relief on the grounds of ineffective assistance of counsel. In his application, Ude claimed he was denied effective assistance of counsel in two regards. First, his plea of guilty was not voluntary becаuse he had not been given an opportunity to review discovery materials before pleading guilty, his attorney did not discuss the plea agreements with him and instead would discuss potential offers with his parents, and he had little contact with his attorney. Second, Ude argued that his attorney only met with him once before his sentencing hearing, his attorney informed him that his mother could not testify on his behalf at sentencing, and although Ude’s attorney had gathered letters of support for Ude before sentencing, his attorney did nоt mention the letters at sentencing to ensure the district court had reviewed them. Ude also claimed he was prejudiced at sentencing because his attorney smelled of alcohol
[¶ 4] On September 26, 2008, the State responded to Ude’s application for post-conviction relief. The State argued Ude’s attorney did not provide ineffective assistance of counsel because the representation did not fall below the requisite standard of reasonableness, it was entitled to summary disposition on the application for post-conviction relief because there wеre no factual issues in dispute, and even if all of Ude’s allegations were valid, the allegations did not rise to the level required for Ude to withdraw his guilty plea. The State argued Ude knowingly and voluntarily submitted his guilty plea to the court, the conduct alleged by Ude did not negate his guilty plea, and the district court complied with Rule 11, N.D.R.Crim. P., when it accepted the guilty plea. The State argued Ude had not established the conduct was prejudicial to him and how the allegations would have created a different result.
[¶ 5] On Octоber 2, 2008, Ude replied to the State’s response to his application for post-conviction relief. Ude argued summary disposition was not appropriate because there were material facts in dispute. Ude asserted he did not havе a meaningful opportunity to review the discovery materials and communicate with his attorney before he pled guilty; the lack of communication prejudiced Ude’s decision making; and his attorney could not have given him competent advice because he had not opened some of the letters Ude sent him before sentencing.
[¶ 6] A post-conviction relief hearing was held on November 14, 2008. The district court issued an order denying post-conviction relief, providing that “[hjaving read the pleadings, consulted opinions of our Supreme Court and heard the arguments of counsel, the Court found that Ude was not denied effective assistance of counsel.”
[¶ 7] Ude appeals, arguing the district court erred in not allowing him to present testimony from witnesses and in denying his application for post-conviction relief.
II
[¶ 8] Section 29-32.1-04, N.D.C.C., provides the requirements for an application for post-conviction relief under the Uniform Postconviction Procedure Act. A petitioner must “set forth a concise statement of each ground for relief, and specify the relief requested,” refer to the pertinent portions of the record of prior proceedings, and if those portions are not in the record, the petitioner must attach those portions to the application.
State v. Bender,
[¶ 9] While summary dismissal generally is not appropriate for рost-conviction claims of ineffective assistance of counsel, it is appropriate if the petitioner does not raise a genuine issue of material
[¶ 10] We explained our review of a summary dismissal of post-conviction relief in
Klose,
We review an appeal from summary denial of post-conviction relief as we would review an appeal from a summary judgment. The party opposing the motion for summary disposition is entitled to all reasonable inferences to be drawn from the evidence and is entitled to an eviden-tiаry hearing if a reasonable inference raises a genuine issue of material fact. For summary judgment purposes, the evidentiary assertions of the party opposing the motion are assumed to be true.
[¶ 11] First, Ude argues he raised a material issue of fact and should have been allowed to present testimony. Ude claims he was prepared at the post-conviction hearing to present evidence in support of his application, but the district court did not permit him to do so.
[¶ 12] The reсord indicates that after Ude applied for post-conviction relief, the State responded, arguing it was entitled to summary disposition because there were no factual disputes. Ude replied to the State’s response, arguing summary dispositiоn on his application for post-conviction relief was not appropriate, but did not present affidavits or other supporting materials to raise an issue of material fact. Once the State requested summary disposition, Ude was put on his рroof and needed to provide evidentiary support for his application in response to the State’s request.
See Bender,
[¶ 13] In this case, the district court did hold a hearing on Ude’s application for post-conviction relief and considered the pleadings and arguments frоm Ude and the State. Ude contends the district court denied him an opportunity to present testimony in support of his application. We disagree. .Ude claims he had three witnesses present at the hearing to testify about the effectiveness oí his trial counsel. The record and transcript do not indicate that the district court was ever made aware that Ude had witnesses present or that he wanted to present their testimony. The district court asked Ude on two occasions whether there was anything else for that hearing. On both occasions, Ude responded in the negative. The district court first asked Ude, “So this is a high burden to establish ineffective assistance of counsel. I’ve read the petition. I’ve read the response. Is there anything else yоu want to tell me about this ... ?” Ude responded:
Well, again, I would just reassert in my reply to the state’s response that the Supreme Court has held numerous times that the proper place to identify, ifthere was any potential ineffective assistance claim there, is back in the purview of the trial court. That’s why the petition was filed.
Further, as far as the comment on the factual basis, it wasn’t lacking some documents, Mr. Ude’s comments to myself and comments from his family is that he didn’t receive any documents.
At the end of thе hearing, the district court again asked Ude, “Anything else for the Court this morning, ... ?” Ude responded, “No, Your Honor.” Ude never informed the district court that he had witnesses available to testify in support of his claim of ineffective assistance of counsel. On apрeal, Ude cannot argue the district court erred when he never made the district court aware of the evidence he desired to introduce.
See State v. Goulet,
[¶ 14] Second, Ude argues the district court erred in denying his application for post-conviction relief. We conclude Ude failed to present any evidence supporting his claims or raising an issue of material fact that his counsel’s performance was deficient and his counsel’s deficient performance prejudiced the defendant.
See Strickland v. Washington,
[¶ 15] Although we conclude the district court did not err in denying Ude’s application for post-conviction relief, we do note that the district court concluded Ude had not established ineffective assistance of counsel in part based on its review of the sentencing hearing transcript. On claims of ineffective assistance of counsel, the record and transcripts, are generally not adequate.
Myers v. State,
Ill
[¶ 16] We conclude the district court did not deny Ude an opportunity to present testimony and did not err in denying his application for post-conviction relief.