Mwinyi v. State , 2024 ND 126 ( 2024 )

IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2024 ND 126Hamisi Mohamed Mwinyi, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240003
Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable
Dann E. Greenwood, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.
Amy G. Pikovsky, Assistant State’s Attorney, Dickinson, N.D., for respondent and
appellee; submitted on brief.
Mwinyi v. State
No. 20240003
Tufte, Justice.
[¶1] Hamisi Mohamed Mwinyi appeals from a district court’s order summarily disposing
of his application for postconviction relief. On appeal, he argues the district court erred
because the State’s motion for summary disposition did not comply with the rules of civil
procedure and sufficient evidence supported the application. He also argues he was denied
due process. We affirm.
I
[¶2] Mwinyi applied for postconviction relief, asserting as grounds: “One of my grounds
will be ineffective assistance of counsel. I am illiterate in English. I am from Tanzania,
Africa, and my native language is Swahili.” The State filed an answer and a motion to
summarily dispose of the application. Mwinyi objected and moved to amend his
application to argue his attorney was ineffective because he failed to use a translator to
communicate with Mwinyi and as a result he was unable to communicate fully with his
attorney in order to prepare for hearings and trial. The district court denied the motion to
amend.
[¶3] The district court summarily dismissed Mwinyi’s application and explained that it
would have granted the State summary disposition if the proposed amendment had been
granted. Mwinyi appeals.
II
[¶4] Mwinyi argues the district court erred in granting the State’s motion for summary
disposition and dismissal because the State did not comply with the rules of civil procedure
when it “combined the motion and answer.”
[¶5] “Postconviction relief proceedings are civil in nature and governed by the North
Dakota Rules of Civil Procedure.” Atkins v. State, 2019 ND 146, ¶ 4, 928 N.W.2d 438.
Whether the rules of civil procedure were properly followed is a question of law which will
be reviewed de novo. Chase v. State, 2021 ND 206, ¶ 5, 966 N.W.2d 557. In Chase, the
State requested summary dismissal in its answer, also requesting the answer serve as notice
of the request. Id. at ¶ 4. We explained that by not serving and filing notice of motion with
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a motion and instead requesting summary disposition in its answer, the State failed to put
the applicant on notice. Id. at ¶¶ 8-9.
[¶6] Here, the State served and filed a notice of motion, a motion for summary
disposition, and a single document containing its answer to the application and its brief
supporting the motion for summary disposition. The State complied with the rules and
Chase because Mwinyi was put on notice that the State had moved for summary disposition
by the notice of motion and motion. The State did not violate the rules of civil procedure
by combining its answer to the application and its brief in support of its motion into the
same document.
III
[¶7] Mwinyi argues he was entitled to a hearing because there was sufficient competent
evidence to support his ineffective assistance of counsel claim because he is illiterate in
English and his attorney did not use a translator to speak with him outside of court.
[¶8] We have explained:
When a dismissal under N.D.R.Civ.P. 12(b)(6) is appealed, this Court
construes the application in the light most favorable to the applicant and
accepts the well-pleaded allegations as true. We will affirm a dismissal for
failure to state a claim if it would be impossible for the applicant to prove a
claim for which relief can be granted.
Burden v. State, 2019 ND 178, ¶ 14, 930 N.W.2d 619 (quoting Greywind v. State, 2015
ND 231, ¶¶ 7-8, 869 N.W.2d 746).
[¶9] The district court dismissed the application under N.D.C.C. § 29-32.1-09, applying
Rule 12(b)(6) standards, because Mwinyi failed to state a claim upon which relief could be
granted. We disagree. Construing the application in the light most favorable to Mwinyi, he
alleged ineffective assistance of counsel because he is illiterate in English, and by natural
implication, his attorney did not effectively communicate with him. This states a claim for
which relief could be granted.
[¶10] The district court explained that it would have granted the State’s motion for
summary disposition under N.D.C.C. § 29-32.1-09.1, applying Rule 56 standards, because
when the State put Mwinyi to his proof, he failed to provide competent evidence to support
his claim.
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[¶11] Ordinarily, summary disposition of an ineffective assistance of counsel claim should
not be granted without an evidentiary hearing. Campbell v. State, 2021 ND 45, ¶ 14, 956
N.W.2d 387.
However, this Court has upheld summary denials of [postconviction] relief
when the applicants were put to their proof, and summary disposition
occurred after the applicants then failed to provide some evidentiary support
for their allegations. Once the State moves for summary disposition pointing
out the absence of supporting evidence, the defendant is put on notice of the
issue and a minimal burden shifts to the defendant to provide some
competent evidence to support his claim. If competent evidence is provided,
the defendant is entitled to an evidentiary hearing.
Atkins v. State, 2017 ND 290, ¶ 6, 904 N.W.2d 738 (quoting Steinbach v. State, 2003 ND
46, ¶ 15, 658 N.W.2d 355) (cleaned up).
[¶12] Here, the State put Mwinyi on notice to provide competent admissible evidence to
support his claim. Mwinyi provided no evidence he would have pleaded not guilty and
insisted on going to trial but for the alleged error by his counsel. Bahtiraj v. State, 2013
ND 240, ¶¶ 15, 16, 840 N.W.2d 605. Because Mwinyi failed to provide any competent
evidence to the court beyond his application, the court properly denied his application on
the alternative grounds of summary disposition.
IV
[¶13] Mwinyi argues his right to due process was violated because his postconviction
relief attorney was ineffective for failure to order transcripts or secure an evidentiary
hearing.
[¶14] In Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 115 L.Ed.2d 640(1991), the United States Supreme Court explained there is no constitutional right to have
an attorney for postconviction proceedings, so Mwinyi cannot claim on appeal that his
postconviction attorney was ineffective. Claims of ineffective assistance of postconviction
counsel are subject to summary dismissal. N.D.C.C. § 29-32.1-09(2) (“The court, on its
own motion, may dismiss any grounds of an application which allege ineffective assistance
of postconviction counsel.”). See Johnson v. State, 2004 ND 130, ¶ 15, 681 N.W.2d 769.
On the basis of the arguments presented here, Mwinyi has not established a denial of
constitutional due process.
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V
[¶15] The district court’s order denying Mwinyi’s application for postconviction relief is
affirmed.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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