Owens v. State , 2001 N.D. LEXIS 17 ( 2001 )

SANDSTROM, Justice.

[¶ 1] Earl L. Owens appeals from an order of the district court dismissing an application for post-conviction relief. Owens contends his attorney failed to appeal his conviction as he directed. We affirm, concluding the district court properly dismissed the post-conviction relief application because Owens inexcusably failed to raise the issue in a previous post-conviction proceeding.

I

[¶ 2] On April 10, 1996, Owens was convicted of two counts of theft by deception and two counts of attempted theft by deception, all class C felonies. On the same date, Owens was convicted of a class A misdemeanor for giving false information to a law enforcement officer. Owens, acting pro se, filed a motion for a new trial on April 19, 1996. The district court denied the motion for new trial on May 8, 1996. On May 16, 1996, Owens wrote a letter to the district court requesting a new court-appointed attorney. In his letter Owens stated, “I have every intention on appealing the conviction of the past trial.” The letter suggests his request for a new attorney was based on trial counsel’s performance.

[¶3] New counsel was appointed by the district court. A conflict of interest arose with the new attorney, so a third attorney, Robert Martin, was appointed to represent Owens. On June 7,1996, Owens appeared in the district court with Martin and was sentenced on the charges. No appeal of the conviction was filed on behalf of Owens. Owens, acting pro se, filed numerous motions in the district court, including an application for post-conviction relief filed on July 29, 1996. On August 1, 1996, the district court sent Owens a letter denying all of his pro se motions, identifying Martin as appellate counsel, and instructing Owens to “[e]onfer and cooperate with your court appointed attorney.”

[¶ 4] On Owens’ behalf, attorney Martin applied for post-conviction relief on November 25, 1996; an amendment to the application was filed on January 21, 1997. The State responded to the application on January 21, 1997, and moved for summary disposition. The district court denied Owens’ application on May 22,1997.

[¶ 5] Acting pro se, Owens appealed on June 3, 1997. On June 19, 1997, we temporarily remanded to the district court to allow Owens to bring additional motions. Owens, pro se, filed a third amendment in the district court. The third amended application, dated June 24, 1997, contained in excess of twenty issues, including the allegation that “Petitioner was denied the right to appeal the conviction to the Supreme Court for review, attorney states there was [sic] no grounds for appeal.” On July 11, 1997, the district court denied the relief requested by Owens in his third amended application for post-conviction relief. Further documents were filed in this Court, including Owens’ brief listing twenty-six issues. Issue twenty-six in Owens’ appeal stated, “Was the petitioner denied the opportunity to appeal the conviction. Was letter to the trial judge sufficient to give notice of appeal.” On May 20, 1998, we affirmed the district court’s denial of Owens’ application for post-conviction relief. Owens v. State, 1998 ND 106, 578 N.W.2d 542.

[¶ 6] On March 15, 2000, Owens again applied for post-conviction relief. Upon request from the State, the district court denied Owens’ request on April 19, 2000, by summary disposition. Owens appeals from this latest denial of post-conviction relief, arguing the district court erred in denying his post-conviction relief application primarily because his lawyer had failed to file a direct appeal as instructed.

[¶ 7] The district court had jurisdiction under N.D.C.C. § 27-05-06 and N.D.C.C. § 29-32.1-03(1). This Court has jurisdiction under N.D. Const. art. VI, § 6, N.D.C.C. § 29-28-06, and N.D.C.C. § 29-32.1-14.

II

[¶ 8] The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant; post-conviction proceedings are civil in nature. State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987); State v. Kunkel, 366 N.W.2d 799, 803 (N.D.1985). A party opposing a motion for summary disposition under the Uniform Post Conviction Procedure Act must raise an issue of material fact. See Hopfauf v. State, 1998 ND 30, ¶4, 575 N.W.2d 646 (citing Mertz v. State, 535 N.W.2d 834, 836 (N.D.1995)).

[¶ 9] “Res judicata and misuse of process are affirmative defenses to be pleaded by the state.” N.D.C.C. § 29-32.1-12(3). “The burden of proof is also upon the state, but, as to any ground for relief which, by statute or rule of court, must be presented as a defense or objection at a specified stage of a criminal prosecution, the applicant shall show good cause for noncompliance with the statute or rule.” Id.

A

[¶ 10] Owens contends the courts have failed to address the issue of whether or not he has been denied a right to direct appeal. Owens previously appealed similar issues to this Court. Owens v. State, 1998 ND 106, ¶¶ 4-6, 578 N.W.2d 542. Owens contends he urged the district court to consider the fact that his appellate attorney did not file a direct appeal. Aside from Owens’ bare assertions and affidavit indicating he urged appellate counsel to directly appeal, the record does not establish that Owens was denied a right to appeal.

[¶ 11] Owens sent the district court a letter stating he intended to appeal his conviction; however, neither Owens nor his attorneys ever filed an appeal. Notwithstanding Owens’ argument that the courts have not reviewed his direct appeal claim, he argued similar claims in his third amended application for post-conviction relief and in his previous argument before this Court.

B

[¶ 12] The State argues Owens’ claims should be denied because they are simply variations of his original post-conviction petition or because his claims are a misuse of process. Misuse of process can be a ground for denying a claim when the applicant “[p]resents a claim for relief which the applicant inexcusably failed to raise either in a proceeding leading to judgment of conviction and sentence or in a previous postconviction proceeding” or if the applicant “[fjiles multiple applications containing a claim so lacking in factual support or legal basis as to be frivolous.” N.D.C.C. § 29-82.1-12(2).

[¶ 13] Owens’ claim of ineffective assistance of counsel was brought in his prior post-conviction relief applications. We have held denial of a second motion for post-conviction relief is proper when a defendant’s argument “was not made in his previous post-conviction challenge to the same probationary sentences.” State v. Johnson, 1997 ND 235, ¶5, 571 N.W.2d 372. In Johnson, we held the argument was “simply a variation” of an earlier appeal and was therefore a misuse of the post-conviction process. Id. at ¶¶ 11-12.

[¶ 14] We have denied post-conviction relief in other cases where the defendant simply varied previous arguments. Id. at ¶ 13 (citing McMorrow v. State, 537 N.W.2d 365 (N.D.1995); Woehlhoff v. State, 531 N.W.2d 566, 567 (N.D.1995)). The district court’s order implies misuse of process, stating, “All the issues in Petitioner’s most recent request for post-conviction relief have been previously reviewed at the trial level and by the North Dakota Supreme Court. Denial of Petitioner’s previous requests for post-conviction relief was upheld by the North Dakota Supreme Court. Nothing has changed. Petitioner is not entitled to post-conviction relief.”

[¶ 15] The lengthy history of this case establishes Owens had numerous opportunities to raise his direct appeal issue. He filed numerous pro se motions in the district court. He filed two pro se applications for post-conviction relief. Addressing twenty-six issues, Owens previously appealed to this Court pro se. The State has pleaded and proved misuse of process. Owens has failed to show good cause for failing to previously raise the issues he now presents.

[¶ 16] We hold Owens’ current argument, that counsel did not directly appeal his conviction, is simply a variation of his previous arguments. Failure to raise this argument in prior post-conviction proceedings is inexcusable and therefore constitutes a misuse of process.

Ill

[¶ 17] The dissent argues the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), requires a reversal in this case. In doing so, the dissent obscures the facts, and misanalyzes and overreaches the United States Supreme Court decision.

[¶ 18] Flores-Ortega’s attorney did not file an appeal after allegedly having promised to do so. Within a month of learning no appeal had been filed, Flores-Ortega tried to file his own notice of appeal, which was rejected as untimely. Flores-Ortega promptly sought state court relief, raising the specific issue. When that was denied, he promptly sought federal post-conviction relief — a petition for writ of habeas corpus — on the grounds he had directed his attorney to appeal and the attorney had not done so.

[¶ 19] Owens, on the other hand, in all of his previous petitions and supporting papers, never asserted he had directed his attorney to appeal and the attorney had failed to do so. Nearly four years later, in the immediate aftermath of the United States Supreme Court decision in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), Owens for the first time asserts that in 1996 he directed his attorney to appeal and his attorney failed to do so. Owens’ previous filings, however, contradict his new assertion.

[¶ 20] Owens, in his August 1, 1996, letter to the trial court judge, stated he intended to appeal. In his first appeal to this Court, he argued the letter should have been treated as a notice of appeal. Because Owens did not raise the issue below, we did not reach the issue. Owens v. State, 1998 ND 106, ¶¶ 49-50, 578 N.W.2d 542. In his third amended application for post-conviction relief, dated June 24, 1997, he says he was denied an appeal because his lawyer told him there were no grounds. The essential argument in all his post-conviction filings has related to allegedly ineffective assistance of counsel, primarily at trial. As we have said repeatedly, “a claim of ineffective assistance of trial counsel should not be brought on direct appeal, but rather through a post-conviction relief proceeding.” DeCoteau v. State, 1998 ND 199, ¶ 7, 586 N.W.2d 156. That the issues Owens has raised subsequently are those properly raised in a post-conviction proceeding rather than by direct appeal makes manifestly clear the plain meaning of Owens’ earlier averments: he had intended to appeal (either the denial of his motion for new trial, or his conviction, or both) based on ineffective assistance of trial counsel; his post-trial counsel told him there were no grounds for appeal and post-conviction relief was the way to proceed; and he at least acquiesced in that course and filed for post-conviction relief instead.

[¶ 21] In Roe v. Flores-Ortega, the United States Supreme Court said:

[W]e hold that when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.

120 S.Ct. at 1089 (emphasis added). The Court explains what is constitutionally deficient performance:

In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term “consult” to convey a specific meaning — advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant’s express instructions with respect to an appeal. See supra, at 1034-1035. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel’s failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?

Id. at 1035 (emphasis added).

[¶ 22] In this case, Owens’ own filings make clear that his attorney consulted with him and advised “there was [sic] no grounds for appeal.” The record demonstrates that Owens’ attorney’s performance was not constitutionally deficient.

[¶ 23] Distinguishing this case further from Roe v. Flores-Ortega is the significant fact that Flores-Ortega raised the claim at his earliest opportunity. See id. at 1033 (Flores-Ortega’s first state court challenge was based, in part, on failure of counsel to file a direct appeal). The dissent erroneously assumes any convicted person can newly assert alleged failure to file an appeal as directed, at any time, no matter how many post-conviction proceedings have gone before. Roe v. Flores-Ortega offers no support for this proposition, but offers only “the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel’s failure to file a notice of appeal without respondent’s consent” when the issue is properly raised. Id. at 1032-33. The United States Supreme Court itself has rejected repeated post-conviction claims, in the form of habeas corpus, when the matters could have been raised in earlier post-conviction proceedings. See Schlup v. Delo, 513 U.S. 298, 318-19, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (successive or abusive petitions for habeas corpus are generally precluded from review).

[¶ 24] Since it was decided in February 2000, Roe v. Flores-Ortega has been distinguished twice in the circuit courts of appeal. See Clark v. Johnson, 227 F.3d 273 (5th Cir.2000); Kitchen v. United States, 227 F.3d 1014 (7th Cir.2000). In Kitchen, counsel “freely admitted that he failed to file a notice of appeal through ‘inadvertence.’ ” 227 F.3d at 1020. Finding counsel’s performance was deficient, the court stated, “in those cases in which the Supreme Court, as well as this and other circuits, have presumed prejudice from the failure to file a notice of appeal, defendants have had no assistance of counsel for any issues.” Id. at 1020-21 (citations omitted). Here, Owens received appointed appellate counsel for his post-conviction proceedings so he was not “abandoned” or deprived of judicial review of his alleged trial errors. See id. at 1021 (Kitchen was neither abandoned nor denied counsel for appeal simply because a notice of appeal was not filed). “This is unlike the situation in which the possible issues on appeal have not even been identified by an advocate, and prejudice must be presumed.” Id.

[¶ 25] The Seventh Circuit Court of Appeals persuasively reasons in Kitchen that prejudice cannot be presumed simply because a direct appeal was not filed when the defendant has had counsel and was able to raise the same issues that would have been raised on direct appeal. The dissent suggests Owens should be entitled to a hearing on the single issue of whether he was denied a direct appeal. In Kitchen, the court held prejudice could not be presumed when review was foreclosed on a single issue. 227 F.3d at 1021. This is particularly true when “any prejudice resulting from its abandonment may not be reliably determined.” Id.

[¶ 26] Here, no appeal issue was foreclosed, and Owens was able to raise his issues, with the assistance of counsel, in post-conviction relief proceedings. As detailed above, Owens at least acquiesced in abandonment of a direct appeal in pursuit of post-conviction relief. See DeCoteau v. State, 1998 ND 199, ¶7, 586 N.W.2d 156 (ineffective assistance of counsel claims are better suited for post-conviction relief proceedings rather than direct appeal). Even if allowed a hearing on the waiver of his direct appeal, the direct appeal issues have been adjudicated in Owens’ post-conviction cases. Owens had the opportunity to present post-conviction issues, and he was afforded the assistance of appointed counsel. Prejudice cannot be presumed under the circumstances. See Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 1036, 145 L.Ed.2d 985 (2000) (all relevant factors must be considered in determining whether a defendant desired an appeal); Kitchen v. United States, 227 F.3d 1014, 1021 (7th Cir.2000) (prejudice cannot be presumed in certain circumstances, even if an appeal is abandoned).

[¶ 27] Objectively, Owens’ own evidence supports the conclusion Owens’ attorney’s performance was not constitutionally deficient. A defendant is not afforded multiple opportunities to raise the same or similar issues. Finally, prejudice cannot be presumed under the facts of this case. Each of these factors establishes that Roe v. Flores-Ortega does not lead to reversal here.

IV

[¶ 28] The order of the district court is affirmed.

[¶ 29] Dale V. Sandstrom