IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 27
Cory Allen Almklov, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20240166
Appeal from the District Court of Stutsman County, Southeast Judicial District,
the Honorable Troy J. LeFevre, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice.
Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and
appellee.
Almklov v. State
No. 20240166
Jensen, Chief Justice.
[¶1] Cory Almklov appeals from a district court order summarily dismissing
his application for postconviction relief. Almklov argues he provided sufficient
evidence in court to warrant an evidentiary hearing on his claims of ineffective
assistance of counsel. We affirm.
I
[¶2] On March 10, 2021, Almklov was charged with attempted murder,
aggravated assault, and two counts of false reports to law enforcement. In a
second case, he was charged with burglary and theft of property. The cases were
joined for trial without objection. He was convicted and sentenced to twenty-five
years with the North Dakota Department of Corrections and Rehabilitation on
the attempted murder conviction; the remaining convictions varied in length but
were ordered to run concurrently with the sentence imposed on the attempted
murder charge. His convictions were summarily affirmed on appeal. State v.
Almklov, 2022 ND 56,
971 N.W.2d 852.
[¶3] Almklov filed a pro se application for postconviction relief on February 26,
2024, alleging various grounds. The State answered the petition for
postconviction relief reserving the affirmative defenses of res judicata and
misuse of process. The State also moved the district court for summary
disposition on March 27, 2024, arguing the affirmative defenses applied and
alleged there was no issue of material fact entitling Almklov to relief. Almklov
objected to the State’s motion on April 24, 2024, arguing he was entitled to an
evidentiary hearing on his application. The court granted the State’s motion for
summary disposition and dismissed Almklov’s postconviction relief application
with prejudice on May 17, 2024. The court found that Almklov had failed to
provide any evidence in response to the State’s motion for summary disposition
to support his allegations proving his counsel’s representation was ineffective.
[¶4] Almklov’s application asserted eight grounds to support his request for
postconviction relief. On appeal, Almklov argues the district court erred in
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summarily dismissing his postconviction application prior to an evidentiary
hearing based on three claims of ineffective assistance of counsel: failure to call
two witnesses, failure to object to joinder of his two cases, and failure to file a
motion to suppress statements Almklov made to law enforcement.
II
[¶5] “Post-conviction relief proceedings are civil in nature and governed by the
North Dakota Rules of Civil Procedure.” Kruckenberg v. State, 2012 ND 162, ¶ 5,
820 N.W.2d 314 (quoting Delvo v. State,
2010 ND 78, ¶ 10,
782 N.W.2d 72). “In
order to prevail on a post-conviction claim of ineffective assistance, the petitioner
bears a heavy burden.” Roth v. State,
2007 ND 112, ¶ 7,
735 N.W.2d 882. The issue
of ineffective assistance of counsel is a mixed question of law and fact and is fully
reviewable on appeal. Id. at ¶ 11.
[¶6] We have previously recognized that claims of ineffective assistance of
counsel are ordinarily unsuited to summary disposition without an evidentiary
hearing. Mwinyi v. State,
2024 ND 126, ¶ 11,
9 N.W.3d 665. An evidentiary
hearing is not always required, and we have recognized the following:
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.
Id. (quoting Atkins v. State,
2017 ND 290, ¶ 6,
904 N.W.2d 738).
Subsection 29-32.1-09.1(1), N.D.C.C., authorizes summary
disposition of an application for postconviction relief: “The court
may grant a motion by either party for summary disposition if the
application, pleadings, any previous proceeding, discovery, or other
matters of record show that no genuine issues exist as to any
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material fact and the moving party is entitled to judgment as a
matter of law.” In Vandeberg v. State, we noted the following:
For the summary disposition of a petition for post-conviction
relief, the moving party bears the burden of showing there is
no dispute as to either the material facts or the inferences to
be drawn from undisputed facts, and that the movant is
entitled to judgment as a matter of law. A genuine issue of
material fact exists if reasonable minds could draw different
inferences and reach different conclusions from the
undisputed facts.
A movant may discharge his burden of showing there is no
genuine issue of material fact by pointing out to the trial court
there is an absence of evidence to support a petitioner’s case.
Once the movant shows the trial court there is no record
evidence to support the petitioner’s claim and, therefore, there
is nothing the State can point to in support of its assertion no
such evidence exists, the movant has put the petitioner on his
proof and a minimal burden has shifted to the petitioner to
provide some competent evidence to support his claim.
2003 ND 71, ¶¶ 5-6,
660 N.W.2d 568 (cleaned up). “The party
opposing the motion may not merely rely upon the pleadings or
upon unsupported, conclusory allegations, but must present
competent admissible evidence by affidavit or other comparable
means which raises an issue of material fact.” Mertz v. State, 535
N.W.2d 834, 836 (N.D. 1995).
Lindeman v. State,
2024 ND 228, ¶ 5,
14 N.W.3d 883.
III
[¶7] The issues raised on appeal by Almklov assert that he received ineffective
assistance of trial counsel. To establish a claim of ineffective assistance of
counsel, Almklov must prove his counsel’s performance was defective and that
his defense was prejudiced by the proven defects. Morris v. State, 2017 ND 104,
¶ 6,
893 N.W.2d 475. We have recognized the use of the Strickland test when a
court reviews claims of ineffective assistance of counsel, which requires an
applicant to satisfy a two-prong test to establish his claim. Edwardson v. State,
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2019 ND 297, ¶ 7,
936 N.W.2d 376. Under the first prong, the applicant must
prove his counsel’s performance fell below an objective standard of
reasonableness.
Id. Under the second prong, the applicant must show that
counsel’s deficient performance resulted in prejudice.
Id.
IV
[¶8] Almklov asserts his trial counsel was ineffective by failing to call two
critical witnesses to testify. This Court has noted:
“‘[C]onclusory allegations that [trial] counsel failed to call certain
witnesses without indicating what the testimony would have been,
how it might have affected the outcome of the trial, or what
prejudice may have resulted from the failure to call them, do not
support a claim of ineffective assistance of counsel.’” Matthews v.
State, 2005 ND 202, ¶ 12,
706 N.W.2d 74 (quoting State v.
Schlickenmayer, 364 N.W.2d 108, 112 (N.D. 1985)). We have also said
the test is not necessarily whether a witness’s testimony would have
aided the defense, but whether, within the context of the other
evidence and the overall conduct of the trial, there was a reasonable
probability of a different result in the proceeding if the witness had
testified. Wright v. State, 2005 ND 217, ¶ 12,
707 N.W.2d 242.
Flanagan v. State,
2006 ND 76, ¶ 17,
712 N.W.2d 602.
[¶9] Almklov alleges an eyewitness should have been called and contends he
would have been acquitted by the eyewitness’s testimony. However, in response
to the State’s motion for summary disposition, Almklov failed to provide any
evidence of what the alleged eyewitness saw or what either witness’s testimony
would have been had they testified. Almklov’s conclusory allegations that his
counsel failed to call certain witnesses without providing evidence of what the
testimony would have been, how it might have affected the outcome of the trial,
or what prejudice may have resulted from the failure to call them, does not
support a claim of ineffective assistance of counsel. As we noted in Mwinyi and
Atkins, once the State moved for summary disposition and pointed out the
absence of supporting evidence for Almklov’s assertion the witnesses would
have made a difference at trial, Almklov was put on notice of the issue and a
minimal burden shifted to Almklov to provide some competent evidence to
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support his claim. While Almklov’s burden was minimal, he provided no
support for his claim and the district court did not err in dismissing the claims
related to uncalled witnesses.
V
[¶10] Almklov asserts that his trial counsel was ineffective by allowing his two
criminal cases to be consolidated. It is undisputed that Almklov did not oppose
the consolidation, and the cases were tried together.
[¶11] Almklov provided no evidence he was prejudiced by the consolidation of
the two proceedings. The district court did not err in its determination that
Almklov did not respond with any evidence to support his allegations that his
trial counsel was ineffective for failing to object to consolidation of his cases.
VI
[¶12] Almklov argues his attorney should have filed a motion to suppress his
statements to law enforcement because he was under duress, under the
influence, not in his right mind, and was not read his Miranda rights.
[¶13] A successful ineffective assistance of counsel claim based on an attorney’s
failure to file a pretrial suppression motion requires that “the defendant must
prove that he would have prevailed on his motion to suppress and that there is
a reasonable probability a successful motion would have affected the outcome of
the trial.” Rencountre v. State, 2015 ND 62, ¶ 9,
860 N.W.2d 837.
[¶14] Almklov failed to provide any evidence that the motion would have been
successful, or the result of the trial would have been different. The district court
recognized that a “claim of ineffective assistance of counsel is generally not
suited to summary disposition without an evidentiary hearing.” (Citing
Steinbach v. State,
2003 ND 46, ¶ 15,
658 N.W.2d 355.) The court continued by
noting the following:
However, applicants are put to their proof after a motion for
summary disposition is filed and must provide some evidence in
support of their allegations. Id. [Steinbach v. State,
2003 ND 46, ¶ 15,
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658 N.W.2d 355.] While Almklov has offered arguments in opposing
the State’s motion, he has f[a]iled to file any evidence to support his
allegations.
(Emphasis in original.)
[¶15] “Failure to produce that evidence once the burden has shifted to the
petitioner, regardless if a hearing has been scheduled, is grounds for summary
dismissal.” Atkins, 2017 ND 290, ¶ 10. Almklov failed to show his counsel’s
representation was deficient and failed to show any prejudice resulting from the
alleged deficient performance. The district court did not err in dismissing his
claim asserting ineffective assistance of counsel related to the absence of a
motion to suppress.
VII
[¶16] On each of the issues raised on appeal, Almklov failed to provide sufficient
evidence in the district court to support his claims. Because Almklov’s
arguments fail for failure of proof, we need not address whether his claims may
have also been barred by affirmative defenses raised by the State. We affirm.
[¶17] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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