               Filed 1/23/20 by Clerk of Supreme Court

                  IN THE SUPREME COURT
                  STATE OF NORTH DAKOTA

                                2020 ND 19

Rodney Ray Chisholm,                                  Plaintiff and Appellant
      v.
State of North Dakota,                               Defendant and Appellee



                                No. 20190234

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Rodney R. Chisholm, self-represented, Bismarck, N.D., plaintiff and appellant;
submitted on brief.

Rachel R. Egstad, Grand Forks, N.D., for defendant and appellee; submitted
on brief.
                             Chisholm v. State
                               No. 20190234

Tufte, Justice.

[¶1] Rodney Chisholm appeals from a district court order summarily
dismissing his application for postconviction relief. We conclude his claim for
ineffective assistance of postconviction counsel is barred under N.D.C.C. § 29-
32.1-09(2) and his other claims are barred by res judicata. We affirm the
summary dismissal of his postconviction relief application.

                                       I

[¶2] Chisholm was convicted of murder in 2011 and sentenced to 30 years’
imprisonment. He appealed his conviction, which we affirmed in State v.
Chisholm, 2012 ND 147, 818 N.W.2d 707.

[¶3] Chisholm filed his first application for postconviction relief in 2013. In
that application, Chisholm alleged ineffective assistance of trial and appellate
counsel. The district court summarily denied Chisholm’s application, and he
appealed. We reversed and remanded in Chisholm v. State, 2014 ND 125, 848
N.W.2d 703. On remand, the district court again denied Chisholm’s application
and he appealed. We affirmed the district court’s denial in Chisholm v. State,
2015 ND 279, 871 N.W.2d 595.

[¶4] Chisholm filed this application for postconviction relief in January 2018.
In this application, he alleged he had discovered new evidence of the trial
judge’s bias that was unavailable at the time of trial, the trial court’s jury
instructions were erroneous, and his counsel from the prior postconviction
action was ineffective. In conjunction with his application for postconviction
relief, Chisholm requested a change of judge and moved to compel discovery.

[¶5] The State answered Chisholm’s application and denied all the
allegations. In its answer, the State asserted the affirmative defense of res
judicata. It did not raise the affirmative defenses of misuse of process or the
statute of limitations. It also requested the district court summarily dismiss



                                       1
Chisholm’s application. Chisholm filed a reply brief responding to the State’s
answer which acknowledged the State’s request for summary disposition.

[¶6] The district court denied Chisholm’s request for a change of judge and
summarily dismissed his postconviction relief application in June 2018.
Chisholm appealed. We affirmed the district court’s denial of Chisholm’s
peremptory demand for a change of judge, but reversed and remanded for
consideration of other issues. Chisholm v. State, 2019 ND 70, 924 N.W.2d 127.

[¶7] On remand, the district court denied Chisholm’s request for a change of
judge and motion to compel discovery. The court summarily dismissed
Chisholm’s application for postconviction relief. Chisholm now appeals.

                                       II

[¶8] Chisholm argues the district court erred in summarily dismissing his
application for postconviction relief. Our standard of review for summary
dismissals of applications for postconviction relief is well established:

             “Post-conviction relief proceedings are civil in nature and
      governed by the North Dakota Rules of Civil Procedure.” Wacht v.
      State, 2015 ND 154, ¶ 6, 864 N.W.2d 740 (quoting Haag v. State,
      2012 ND 241, ¶ 4, 823 N.W.2d 749). A district court may
      summarily dismiss an application for postconviction relief if there
      is no genuine issue of material fact and the moving party is entitled
      to judgment as a matter of law. N.D.C.C. § 29–32.1–09(3). A court
      may also summarily dismiss “a second or successive application for
      similar relief on behalf of the same applicant.” N.D.C.C. § 29–32.1–
      09(1). This Court reviews an appeal from summary dismissal of
      postconviction relief as it would review an appeal from a summary
      judgment. Wacht, at ¶ 6. “The party opposing the motion for
      summary dismissal is entitled to all reasonable inferences to be
      drawn from the evidence and is entitled to an evidentiary hearing
      if a reasonable inference raises a genuine issue of material fact.”
      Id.

Myers v. State, 2017 ND 66, ¶ 7, 891 N.W.2d 724.




                                       2
                                        III

[¶9] As a threshold matter, we must consider whether Chisholm had notice
of the State’s motion for summary disposition. Section 29-32.1-09(3), N.D.C.C.,
allows a court to summarily dismiss an application for postconviction relief on
its own motion or on the motion of the State. Rule 3.2(a)(1), N.D.R.Ct., requires
a party filing a motion to serve notice of the motion on the opposing party.

[¶10] In Ourada v. State, 2019 ND 10, ¶ 2, 921 N.W.2d 677, the State
requested summary disposition in its answer, which the district court granted.
We held the State’s request was effectively a motion for summary disposition,
and reversed and remanded because Ourada was not provided notice of the
State’s motion as required under N.D.R.Ct. 3.2. Id. at ¶ 6.

[¶11] Here, as in Ourada, the State requested summary disposition in its
answer. The district court could have properly treated this request as a motion
for summary disposition. The State’s request for summary disposition was not
accompanied with notice as required for a motion under N.D.R.Ct. 3.2.
However, we conclude Chisholm was effectively on notice of the State’s request
for summary disposition because he acknowledged it in his reply brief to the
State’s answer before the court granted the State’s motion.

                                        IV

[¶12] Chisholm argues the district court erred in dismissing his claim for
ineffective assistance of postconviction counsel.

[¶13] The district court dismissed this claim, citing N.D.C.C. § 29-32.1-09(2).
Section 29-32.1-09(2), N.D.C.C., provides that “[a]n applicant may not claim
constitutionally ineffective assistance of postconviction counsel in proceedings
under this chapter.” We have held “district courts are required to dismiss an
applicant’s claims of ineffective assistance of post-conviction relief counsel in a
Uniform Postconviction Procedure Act proceeding.” Jensen v. State, 2019 ND
126, ¶ 9, 927 N.W.2d 479 (quoting Kalmio v. State, 2018 ND 182, ¶ 18, 915
N.W.2d 655). The district court did not err in dismissing Chisholm’s claim for




                                        3
ineffective assistance of postconviction counsel, because that claim was barred
under N.D.C.C. § 29-32.1-09(2).

                                       V

[¶14] Chisholm argues the district court erred in dismissing the other claims
in his application for postconviction relief. The district court dismissed
Chisholm’s other claims because they were barred by res judicata.

[¶15] Under N.D.C.C. § 29-32.1-12(1) and (2), an application for postconviction
relief may be denied on the grounds of res judicata or misuse of process. Res
judicata and misuse of process are affirmative defenses that must be pleaded
by the State. N.D.C.C. § 29-32.1-12(3). Here, the State pleaded only res
judicata as an affirmative defense. Chisholm argues his claims are not barred
by res judicata because they have not previously been litigated.

[¶16] Res judicata prevents relitigation of claims that were raised, or could
have been raised, in prior actions between the same parties. Ungar v. N.D.
State Univ., 2006 ND 185, ¶ 11, 721 N.W.2d 16. This was Chisholm’s second
application for postconviction relief. He could have raised these claims in the
previous postconviction action but did not do so. Therefore, they were barred
by res judicata.

[¶17] Chisholm argues his claim of bias by the trial judge was based on newly
discovered evidence that has come to light since his first postconviction relief
application and therefore could not have been raised in the prior proceeding.
Specifically, he relies on media interviews given by the trial judge since
Chisholm’s 2011 trial about a courtroom shooting that happened in 1992.
Chisholm claims the interviews are demonstrative of the trial judge’s bias and
but for the judge’s bias, the jury would have been instructed on lesser included
offenses.

[¶18] This argument by Chisholm is an attempt to relitigate his waiver of the
lesser included offense instructions. Chisholm admitted at the evidentiary
hearing in his prior postconviction case that he waived jury instructions on the
lesser included charges. Chisholm, 2015 ND 279, ¶ 16, 871 N.W.2d 595. In the


                                       4
appeal from that case, we concluded the district court’s finding that Chisholm
was adequately advised on the ramifications of not allowing the jury to
consider lesser included charges was not clearly erroneous. Id.

[¶19] The issue of lesser included offense instructions was previously litigated.
Chisholm’s new claim is therefore barred by res judicata. Ungar, 2006 ND 185,
¶ 11, 721 N.W.2d 16. We conclude the district court did not err in summarily
dismissing Chisholm’s claims barred by res judicata.

                                       VI

[¶20] We have considered Chisholm’s other arguments and conclude the
district court did not abuse its discretion in denying Chisholm’s motions for
recusal, to compel discovery, and to correct the record. As to those issues, we
summarily affirm under N.D.R.App.P. 35.1(a)(4). We affirm the district court’s
order summarily dismissing Chisholm’s application for postconviction relief.

[¶21] Jerod E. Tufte
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jon J. Jensen, C.J.

Crothers, Justice, concurring specially.

[¶22] I concur in the result. I write separately regarding Part II of the
majority opinion addressing summary disposition. In particular, I write to
again request that the State be required to serve and file an actual motion to
dismiss, rather than to continue being permitted to bury their requested
relief in a pleading.




                                       5
[¶23] Here, the State responded to Chisholm’s application by stating at the
end of its answer, “Respondent further alleges the Petition should be
summarily dismissed based upon the doctrine of res judicata as it has already
been ruled upon. Therefore, Respondent prays that the Court enter a
Judgment for Summary Dismissal.” No motion or brief was filed with the
district court. No motion or brief was served on Chisholm. Instead, the district
court treated as a motion the State’s defense embedded in its answer, and
ultimately granted the requested relief. Several appeals followed. Majority
opinion, at ¶¶ 5-7.

[¶24] In Delvo v. State, 2010 ND 78, 782 N.W.2d 72, this Court first addressed
whether an applicant was properly put on notice of a motion to dismiss, and
whether the applicant was effectively put to their proof so as to require
production of evidence rather than merely making allegations, when the
State’s dismissal request was embedded in an answer. I dissented from the
majority holding that the State’s request for dismissal contained only in its
answer was adequate to put the applicant on notice that he or she had been
put to their proof. Id. at ¶¶ 19-35.

[¶25] Both before and since Delvo, the State’s failure in post-conviction relief
proceedings to serve and file a separate motion has caused considerable extra
work for the litigants, the district courts and this Court. See, e.g., Burden v.
State, 2019 ND 178, 930 N.W.2d 619 and the cases cited therein. That extra
work would be greatly reduced if not eliminated by requiring the State,
consistent with all other civil proceedings, to file a motion and brief identifying
the grounds for relief and citing support for that relief. Id. at ¶ 10 (“We have
said post-conviction proceedings are civil in nature and the rules and statutes
applicable to civil proceedings are applicable to those proceedings.”);
N.D.R.Civ.P. 7(b)(1) (“A request for a court order must be made by motion.”);
N.D.R.Ct. 3.2(a)(1) [motions] and 3.2(a)(2) [briefs].

[¶26] Daniel J. Crothers




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