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1998 ND 30

Hopfauf v. State

North Dakota Supreme Court

Decided February 12, 1998

North Dakota Supreme Court · decided 1998-02-12

Key passage — most relied on by later courts

“[i]t would be blatantly unfair to subject a defendant’s post-conviction application to summary dismissal for failure to pro vide evidentiary support not available in the record of prior proceedings, when the statute explicitly provides such evi-dentiary support is “unnecessary” in the original application. The defendant is not required to provide evidentiary support for such allegations until he has been given notice he is being put on his proof.”

quoted by 1 later decision, including Wilson v. State

Relies on State v. Wilson

Good law ✅— No negative treatment on recordhow we know

Decided 1998-02-12

How this case has been cited

Cited by 16 later decisions — most recently February 2016

16 state decisions

80199820002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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*649NEUMANN, Justice,

¶1concurring.

¶2[¶ 14] I concur in the majority opinion. However, I believe it is important to note the trial court granted summary dismissal of Hopfauf s application for post-conviction relief in response to the State’s motion for summary disposition, and not on its own initiative. Trial courts may have a tendency to scrutinize applications for post-conviction relief sua sponte, and dismiss them if they are not supported by sufficient evidentiary showings to resist a motion for summary disposition. I strongly approve of trial courts screening post-conviction applications to ensure they allege a claim for relief that can be granted under the Post-Conviction Procedure Act. However, courts must be cautious not to go beyond the allegations of the application in such an initial screening, to a consideration of the evidentiary support for those allegations. Chapter 29-32.1, N.D.C.C., does not require applications to be supported by affidavits or other evidence. “Affidavits or other material supporting the application may be attached, but are unnecessary.” N.D.C.C. § 29-32.1-04(2). Trial courts should not require evidentiary support for an applicant’s allegations until the applicant has been given notice he is being put on his proof.

¶3[¶ 15] Becaúse we have said post-conviction proceedings are civil in nature and the rules of civil procedure apply, State v. Wilson, 466 N.W.2d 101 (N.D.1991), I believe Kule 12(e), N.D.R.Civ.P., authorizes summary dismissal of a post-conviction application if it fails to allege facts sufficient to give rise to relief under the Post-Conviction Procedure Act. However, Rule 12(e) also says if matters outside the pleadings are to be considered, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.” (Emphasis added.) See also N.D.C.C. § 29-32.1-09, which applies the same standard as Rule 56(c) to a motion for summary disposition. State v. Wilson, 466 N.W.2d at 103. If a trial court goes beyond the sufficiency of an applicant’s allegations and considers the evidentiary support for those allegations, due process requires the applicant be given a reasonable opportunity, as contemplated by rule and statute, to present pertinent materials.

¶4[¶ 16] In this case, of course, Hopfauf was given just such a reasonable opportunity when he received notice of the State’s motion. In response to that motion, Hopfauf failed to submit any evidence of any facts that might support his conclusory allegations. I therefore concur.

¶5[¶ 17] William A. Neumann

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