Leavitt v. State

898 N.W.2d 435

Heather LEAVITT, Petitioner and Appellant

v.STATE of North Dakota, Respondent and Appellee

No. 20160398

Supreme Court of North Dakota.

Filed July 12, 2017

Garrett D. Ludwig, Mandan ND, for petitioner and appellant.

Kelly A. Dillon, Minot, ND, for respondent and appellee.

Crothers, Justice.

[¶ 1] Heather Leavitt appeals from a district court order summarily dismissing her application for post-conviction relief. Heather Leavitt argues the district court erred in summarily dismissing her application because she received ineffective assistance of counsel. We affirm the district court's order.

I

[¶ 2] In 2014 a jury convicted Heather Leavitt of attempted murder. Her conviction was affirmed in State v. Leavitt , 2015 ND 146, 864 N.W.2d 472. There we summarized the facts of the underlying case as follows:

"On February 1, 2014, Timothy Leavitt woke up to being stabbed by an assailant in his home in Minot; he sustained serious injuries during the ensuing struggle, but was ultimately able to flee to safety. Although he was unable to positively identify his attacker, he described the assailant to authorities as ‘having a pony-tail, the same stature as his wife [Heather Leavitt].’ He described the knife used in the attack as having a black handle with metal dots and a long silver blade and noted it was identical to a set of knives he and his wife owned, which were no longer in his home, but were in his wife's possession. He also informed officers he lived in the house alone, he and his wife were separated, and they were sharing custody of their children. Officers observed evidence of an attack at the home and ‘bloody footprints (stocking feet)’ throughout the home and adjacent yards. A black stocking hat with darker blonde hair was found under the bed and a pony-tail band was also found in his home.

"Based on the authorities' investigation, Sergeant David Goodman applied for a search warrant to search Heather Leavitt's person, home, and vehicle, and Goodman provided an affidavit in support of his application. A search warrant was issued, officers executed the warrant, and evidence was collected. During the search of Heather Leavitt's home, officers seized her cell phone. Officers later applied for and received a warrant to search the phone's contents. Heather Leavitt was charged with attempted murder, and before trial, she moved to suppress evidence obtained from the two search warrants. At the hearing on the motion, the State conceded that any evidence obtained from Heather Leavitt's cell phone should be suppressed. The district court granted Heather Leavitt's motion to suppress as to the search of her cell phone, but denied it as to the search of her person, home, and vehicle. A jury ultimately convicted Heather Leavitt of attempted murder."

Id. at ¶ 2 and ¶ 3.

[¶ 3] In March 2016 Heather Leavitt applied for post-conviction relief, arguing she received ineffective assistance of counsel. In April 2016 the State moved for summary disposition, arguing Heather Leavitt failed to raise a genuine issue of material fact. Heather Leavitt filed a motion to stay the determination of the State's motion for summary disposition until she filed a supplemental brief. The district court granted her motion. In May 2016 Heather Leavitt filed a supplemental application, arguing she received ineffective assistance of counsel when the lawyer representing her at trial failed to demand a Franks hearing because the affidavit on which the search warrant relied contained false and misleading statements and because favorable evidence was not presented at trial. The State renewed its motion for summary disposition. In November 2016 the district court granted the State's motion, dismissing Heather Leavitt's application. Heather Leavitt appeals.

II

[¶ 4] "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Kinsella v. State , 2013 ND 238, ¶ 4, 840 N.W.2d 625 (quoting Clark v. State , 2008 ND 234, ¶ 11, 758 N.W.2d 900 ). "A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Howard v. State , 2015 ND 102, ¶ 8, 863 N.W.2d 203 (quoting Waslaski v. State , 2013 ND 56, ¶ 7, 828 N.W.2d 787 ). "When reviewing an appeal from a summary denial of post-conviction relief, we review it as we would an appeal from summary judgment." Id. "The party opposing the motion is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Lindsey v. State , 2014 ND 174, ¶ 7, 852 N.W.2d 383 (quoting Coppage v. State , 2011 ND 227, ¶ 8, 807 N.W.2d 585 ).

[¶ 5] If the State moves for summary disposition, the petitioner must support the application with evidence. Delvo v. State , 2010 ND 78, ¶ 12, 782 N.W.2d 72. This Court explained:

"A petitioner is not required to provide evidentiary support for his petition until he has been given notice he is being put on his proof. At that point, the petitioner may not merely rely on the pleadings or on unsupported, conclusory allegations, but must present competent admissible evidence by affidavit or other comparable means which raises an issue of material fact. If the petitioner presents competent evidence, he is then entitled to an evidentiary hearing to fully present that evidence."

Id. (quoting Henke v. State , 2009 ND 117, ¶ 11, 767 N.W.2d 881 ). The district court can summarily dismiss an application for post-conviction relief if the State shows there is no genuine issue of material fact. Id. "A genuine issue of material fact exists if reasonable minds could draw different inferences and reach different conclusions from the undisputed facts." Id. (quoting Vandeberg v. State , 2003 ND 71, ¶ 5, 660 N.W.2d 568 ).

III

[¶ 6] Heather Leavitt claims the district court erred by summarily dismissing her argument that she was entitled to a Franks hearing. She also argues her trial counsel was ineffective for failing to pursue a Franks hearing. The legal question of whether a Franks hearing was available could have and should have been raised on direct appeal. N.D.C.C. § 29–32.1–12(2)(a) ; Clark v. State , 1999 ND 78, ¶ 23, 593 N.W.2d 329. Indeed, much of Heather Leavitt's post-conviction relief claim is based on her claim that trial counsel's performance was deficient because he did not pursue a Franks hearing. Therefore, dispositive of this issue is not whether Heather Leavitt was entitled to a Franks hearing; rather whether the district court erred in summarily dismissing Heather Leavitt's claim her trial counsel was ineffective when he failed to pursue a Franks hearing.

[¶ 7] Generally, post-conviction ineffective assistance of counsel claims should not be summarily dismissed. Ude v. State , 2009 ND 71, ¶ 9, 764 N.W.2d 419. However, dismissal is permissible if the applicant does not raise a genuine issue of material fact. Id. "To avoid summary dismissal of an ineffective assistance of counsel claim, the post-conviction applicant must present some evidence that his counsel's performance fell below an objective standard of reasonableness, and he must overcome the presumption that his counsel's performance was within the broad range of reasonableness." Id. (quoting Klose v. State , 2008 ND 143, ¶ 13, 752 N.W.2d 192).

[¶ 8] An applicant claiming ineffective assistance of counsel has the ultimate burden of proving the two-prong test established in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) : (1) that counsel's performance was defective and (2) the deficient performance prejudiced the defendant. Steinbach v. State , 2003 ND 46, ¶ 15, 658 N.W.2d 355. "The petitioner ‘must specify how and where counsel was incompetent and the probable different result.’ " Peterka v. State , 2015 ND 156, ¶ 31, 864 N.W.2d 745 (quoting Klose v. State , 2008 ND 143, ¶ 13, 752 N.W.2d 192 ). "A petitioner's failure to show how, but for the attorneys' errors, the results of the proceedings would have been different justifies a district court's decision to summarily dismiss the ineffective assistance of counsel claims." Id. (internal quotations and citations omitted). "Whether a petitioner received ineffective assistance of counsel is a mixed question of law and fact, fully reviewable on appeal." Ratliff v. State , 2016 ND 149, ¶ 6, 882 N.W.2d 716.

[¶ 9] Heather Leavitt contends it is reasonably possible that some evidence would have been suppressed if a Franks hearing had been pursued. She asserts that comparing inconsistencies between the recording of the interview and the affidavit makes it clear her trial counsel should have pursued a Franks hearing. Specifically, Heather Leavitt contends Timothy Leavitt, in his interview with Sergeant Goodman, did not state his attacker was the same stature as his wife, was unsure if the attacker had a pony-tail, previously portrayed the attacker as a male and did not say the knife used in the attack was "identical" to the set in his wife's possession.

[¶ 10] In State v. Rogahn , 2016 ND 93, ¶ 14, 879 N.W.2d 454, this Court explained the availability of a Franks hearing:

"When a defendant alleges false or misleading statements have been made in the application for a search warrant, we address the issue under the standard set forth in [ Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ]. An affidavit in support of a search warrant must contain ‘truthful’ statements. Under Franks , this does not require every statement contained in the affidavit necessarily be correct, but rather requires the statement be truthful in the sense that the information put forth is believed or appropriately accepted by the affiant as true. A false statement under Franks is one that misleads a neutral and detached magistrate into believing the

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