Williamson v. State

                   IN THE SUPREME COURT
                   STATE OF NORTH DAKOTA

                                  

Robert Michael Williamson,                            Petitioner and Appellant

      v.

State of North Dakota,                               Respondent and Appellee



                                 No. 20240155

Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable James S. Hill, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Samuel A. Gereszek, Grand Forks, ND, for petitioner and appellant.

Julie A. Lawyer, State’s Attorney, Bismarck, ND, for respondent and appellee.
                               Williamson v. State
                                  No. 20240155

Crothers, Justice.

[¶1] Robert Williamson appeals from an order denying his second application
for postconviction relief. Williamson argues the district court erred when it
decided res judicata barred his claim for ineffective assistance of counsel relating
to representation he received during probation revocation proceedings. He also
argues the court erred when it decided he was statutorily prohibited from
bringing a claim for ineffective assistance of counsel relating to representation
he received during his first postconviction case. We conclude the court’s
application of res judicata was erroneous because the State waived the defense
by failing to plead it. However, Williamson’s claims are barred by the affirmative
defense of misuse of process, which the State did assert, and N.D.C.C. § 29-32.1-
09(2), which prohibits claims for ineffective assistance of postconviction counsel.
We affirm the order denying Williamson’s application for postconviction relief.

                                         I

[¶2] Williamson pleaded guilty to two counts of gross sexual imposition and
one count of luring a minor by electronic means in case number 08-2016-cr-2578.
He was sentenced to a term of incarceration with time suspended. He did not
file a direct appeal. In August 2021, the State initiated probation revocation
proceedings, and the court appointed counsel for Williamson. In January 2022,
the district court revoked Williamson’s probation, resentenced him, and entered
an amended criminal judgment. Williamson did not appeal.

[¶3] After Williamson’s probation was revoked, he filed his first application for
postconviction relief. See Case No. 08-2022-cv-0836. Williamson alleged his
probation officer lied, new evidence existed, and proof was insufficient that he
committed a probation violation. The district court entered an order denying his
application on its own motion after the State filed an answer. In Williamson v.
State, 

, 

, we held the district court erred by not
following the proper procedure for summary disposition, and we reversed the
order denying Williamson’s application. After remand, the court held a hearing.


                                         1
The court asked Williamson’s postconviction counsel whether she was going to
submit evidence to support an ineffective assistance of revocation counsel claim,
and she responded she would not. The district court entered another order
denying Williamson’s application, which we summarily affirmed. See Williamson
v. State, 

, 

.

[¶4] Williamson also filed pro se motions in his criminal case asserting the
district court imposed an illegal sentence. The court denied Williamson’s
motions, and he appealed. We held Williamson’s sentence was unlawful because
the district court failed to include his accrued good time when resentencing him
for the probation violations, and we remanded the case for resentencing. See State
v. Williamson, 

, 

.

[¶5] Williamson filed this second application for postconviction relief in March
2024. He alleged new evidence exists and the attorneys representing him during
the revocation proceeding and the first postconviction proceeding provided
ineffective assistance. The State filed an answer denying his allegations and
pleaded the affirmative defense of misuse of process. The district court held a
hearing. Williamson was unrepresented. The State advised the court Williamson
“already pled and argued the ineffective assistance of counsel which was
denied[.]” Williamson maintained he had never raised such a claim.

[¶6] The district court entered an order denying Williamson’s application. The
court found Williamson’s claim of ineffective assistance of revocation counsel
was res judicata under N.D.C.C. § 29-32.1-12, and he was prohibited from
bringing a claim for ineffective assistance of postconviction counsel under
N.D.C.C. § 29-32.1-09(2). Williamson appeals, and along with his counsel’s
briefing, he filed a supplemental statement of an indigent party.

                                       II

[¶7] Our state and federal constitutions guarantee criminal defendants the
right to effective assistance of counsel. See U.S. Const. amend. VI; N.D. Const.
art. I, § 12; Damron v. State, 

, 

. A probationer’s
right to counsel also is recognized under N.D.R.Crim.P. 32(f)(3)(A)(iii). State v.
Jensen, 

, 

; see also State v. Holbach, 

, ¶

                                        2
6, 

 (rejecting the assumption that probationers have a
constitutional right to counsel); State v. Wardner, 

, 

 (stating “a probationer facing revocation has limited rights”).

[¶8] A person convicted of and sentenced for a crime, or whose probation has
been revoked, may apply for postconviction relief under the Uniform
Postconviction Procedure Act. N.D.C.C. § 29-32.1-01. “Postconviction relief
proceedings are civil in nature and governed by the North Dakota Rules of Civil
Procedure to the extent the rules do not conflict with the Uniform Postconviction
Procedure Act, N.D.C.C. ch. 29-32.1.” Samaniego v. State, 

, 

. The applicant bears the burden of establishing grounds for relief.

 The standard for reviewing a postconviction relief decision made after an
evidentiary hearing is well established:

      “A trial court’s findings of fact in post-conviction relief proceedings
      will not be disturbed unless they are clearly erroneous. A finding of
      fact is clearly erroneous if it is induced by an erroneous view of the
      law, if it is not supported by any evidence, or if, although there is
      some evidence to support it, a reviewing court is left with a definite
      and firm conviction that a mistake has been made. Questions of law
      are fully reviewable on appeal of a post-conviction proceeding.”

 (quoting Urrabazo v. State, 

, 

).

                                         A

[¶9] Williamson argues the district court erred when it decided his claim
alleging ineffective assistance by his revocation counsel was res judicata.
Williamson points to his prior applications and statements by counsel, which
indicate he has not advanced a claim for ineffective assistance of counsel prior
to this case. The State appears to admit Williamson has not formally advanced
such a claim, although the State contends he “offered testimony regarding
revocation counsel’s performance and the district court did consider it in the first
postconviction proceedings.”

[¶10] Under N.D.C.C. § 29-32.1-12(1), “An application for postconviction relief
may be denied on the ground that the same claim or claims were fully and finally


                                         3
determined in a previous proceeding.” Res judicata is an affirmative defense that
must be pleaded by the State. N.D.C.C. § 29-32.1-12(3). When properly pleaded,
the State bears the burden of proof. Id. “‘Generally, the applicability of res
judicata is a question of law and is fully reviewable on appeal.’” Froistad v. State,

, 

 (quoting State v. Atkins, 

, 

).

[¶11] We decline to address the State’s assertion that res judicata was
appropriate because Williamson’s claim was sufficiently advanced and
addressed in previous proceedings. The State did not plead res judicata in its
answer. An affirmative defense is waived if it is not pleaded. Chase v. State, 

, 

; Aune v. State, 

, ¶ 6, 

. A
waived defense is not grounds for dismissal of an application for postconviction
relief. Johnson v. State, 

, 

; cf. Atkins v. State, 

, 

 (affirming dismissal issued on res judicata grounds
but deciding the court should have referred to a statute authorizing summary
dismissal “rather than the affirmative defense statute”). The court erred when it
dismissed Williamson’s claim based on a defense the State waived.

[¶12] The district court nonetheless correctly dismissed the claim because it
constitutes a misuse of process, which is an affirmative defense the State did
raise. Process is misused when an 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[.]” N.D.C.C. § 29-32.1-12(2)(a). “‘Post-conviction proceedings are not
intended to allow defendants multiple opportunities to raise the same or similar
issues, and defendants who inexcusably fail to raise all of their claims in a single
post-conviction proceeding misuse the post-conviction process by initiating a
subsequent application raising issues that could have been raised in the earlier
proceeding.’” Froistad, 

 (quoting Atkins, 

).

[¶13] When the State has pleaded the defense of misuse of process, and a misuse
of process has occurred, we will affirm dismissal of an application for
postconviction relief even if dismissal was ordered on other erroneous grounds.
For example, in Steen v. State, 

, 

, the State raised


                                          4
both res judicata and misuse of process as affirmative defenses to a
postconviction relief application. The district court decided the application was
barred by the defense of res judicata. Id. ¶ 10. On appeal, this Court identified
claims that had not been adjudicated, id. ¶ 16, and explained the district court’s
application of res judicata was “overly broad.” Id. ¶ 23. However, the Court
explained the unadjudicated claims “are appropriately denied on grounds of
misuse of process,” and the Court affirmed dismissal of the application. Id.; see
also Myers v. State, 

, 

 (stating a correct decision
will not be set aside because of incorrect reasoning). Like in Steen, Williamson
could have claimed his revocation counsel was ineffective in his first application,
but he failed to do so. Although the district court erroneously applied res
judicata, it correctly dismissed Williamson’s claim because the claim constitutes
a misuse of process.

                                         B

[¶14] Williamson argues the district court erred when it dismissed his claim for
ineffective assistance of postconviction counsel.

[¶15] There is no constitutional right to counsel in postconviction proceedings.
Mwinyi v. State, 

, 

 (citing Coleman v. Thompson,

 (1991)). Prior to 2013, applicants were statutorily entitled to
claim postconviction relief on grounds of ineffective assistance of postconviction
counsel. See Klose v. State, 

, 

 (“This Court has
recognized a petitioner may claim ineffective assistance of post-conviction
counsel.”). However, in 2013 the legislature eliminated those grounds by adding
the following language to N.D.C.C. § 29-32.1-09:

      “The court, on its own motion, may dismiss any grounds of an
      application which allege ineffective assistance of postconviction
      counsel. An applicant may not claim constitutionally ineffective
      assistance of postconviction counsel in proceedings under this
      chapter.”

2013 N.D. Sess. Laws ch. 248, § 2. We have interpreted N.D.C.C. § 29-32.1-09 to
mean applications claiming ineffective assistance of postconviction counsel are
subject to summary dismissal. See Mwinyi, ¶ 14.

                                        5
[¶16] Williamson argues he is entitled to raise a claim for ineffective assistance
of postconviction counsel because of the nature of his revocation counsel’s
alleged defective representation. Specifically, he claims counsel failed to appeal
the denial of his first application for postconviction relief. In his words, “The
failure of post-conviction relief counsel to recognize a presumptively prejudicial
ineffective assistance of counsel claim creates by its very nature a procedural
defect in their representation.” Williamson asserts the United States Supreme
Court recognized an exception based on this type of “procedural defect” in
Martinez v. Ryan, 

 (2012). There, the Supreme Court decided a
procedural default will not bar federal courts from hearing habeas claims based
on ineffective postconviction counsel if there was no counsel or ineffective
counsel at the initial state collateral proceeding. 

. Williamson asserts the
“logic and reasoning” employed in Martinez “is just as sound for the State of
North Dakota.”

[¶17] This Court and many others have recognized Martinez does not govern
application of state law relating to postconviction proceedings. See Lehman v.
State, 

, 

; see also Brown v. McDaniel, 

, 872 (Nev. 2014) (collecting cases from various jurisdictions). The decision in
Martinez concerned federal habeas procedures. We explained in Lehman, ¶ 21:

      “[T]he holding in Martinez is concerned with removing procedural
      impediments that may hinder state prisoners from filing habeas
      corpus petitions in federal court. The instant case does not deal with
      a prisoner trying to file a habeas petition in federal court. The facts
      of this case only implicate North Dakota law.”

Absent a constitutional right to effective postconviction counsel, statutory law
controls. See N.D.C.C. § 1-01-03 (expression of law); State ex rel. Johnson v. Baker,

 (N.D. 1945) (“[H]e who would challenge a legislative
enactment must be able to specify the particular constitutional provision that
deprived the legislature of the power to pass the enactment.”) (quoting Martin v.
Tyler, 

 (N.D. 1894)).

[¶18] Williamson argues the legislature “has left open the idea” that a
postconviction ineffective assistance claim “may have merit” under these


                                         6
circumstances. (Emphasis in original.) He reads N.D.C.C. § 29-32.1-09(2) to give
district courts discretion to dismiss a claim of ineffective postconviction counsel.
His argument rests primarily on the first sentence of the law, which states: “The
court, on its own motion, may dismiss any grounds of an application which
allege ineffective assistance of postconviction counsel.” He asserts the term
“may” in the first sentence means the law does not preclude his claim. In his
words, “the legislature would not give a district court discretion whether to
dismiss a claim that the legislature also states is outright banned.”

[¶19] Williamson’s reading is not persuasive. The first sentence of N.D.C.C. §
29-32.1-09(2) authorizes, but does not require, the court to dismiss ineffective
assistance of postconviction counsel claims on the court’s “own motion.” The
plain language of the second sentence prohibits such claims without exception,
stating: “An applicant may not claim constitutionally ineffective assistance of
postconviction counsel in proceedings under this chapter.” Thus, under the
statute, ineffective assistance of postconviction counsel claims are prohibited,
and the court is not required to wait for the State to file a motion before
dismissing such claims. Williamson’s assertion that the law allows these claims
in the limited circumstances of his case is not persuasive. The district court did
not err when it dismissed Williamson’s ineffective assistance of postconviction
counsel claim.

                                        III

[¶20] Williamson asserts in a supplemental statement that his right to selfrepresentation was violated. See N.D.R.App.P. 24(a)(1) (allowing indigent
defendants and postconviction applicants to file statements “to identify and
discuss matters that the indigent defendant or applicant believes were not
adequately addressed in the brief filed by counsel”). Williamson’s supplemental
statement does not provide a citation to the record indicating this issue was
preserved for review in this postconviction proceeding. See N.D.R.App.P.
24(a)(3) (providing for identification of errors and requiring references to the
record); see also Edwardson v. State, 

, 

 (stating
issues raised for the first time on appeal in a postconviction proceeding will not
be addressed). We therefore decline to address Williamson’s argument.


                                         7
                                      IV

[¶21] The district court erred when it applied res judicata to Williamson’s
ineffective assistance of revocation counsel claim because the State waived that
affirmative defense by failing to plead it. However, Williamson’s claim is barred
by the affirmative defense of misuse of process, which the State pleaded.
Williamson’s claim of ineffective assistance of postconviction relief counsel is
barred by N.D.C.C. § 29-32.1-09(2). The order denying Williamson’s second
application for postconviction relief is affirmed.

[¶22] Jon J. Jensen, C.J.
      Daniel J. Crothers
      Lisa Fair McEvers
      Jerod E. Tufte
      Douglas A. Bahr




                                       8