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Date: 11-06-2020

Case Style:

Ashley Kenneth Hunter v. State of North Dakota

Case Number: 2020 ND 224

Judge: Daniel J. Crothers


Plaintiff's Attorney: Birch P. Burdick

Defendant's Attorney:

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Fargo , ND - Criminal defense lawyer represented defendant Ashley Kenneth Hunter with appealing from an order denying his application for postconviction relief, arguing the district court abused its discretion in determining res judicata barred his claim of judicial bias and that he did not receive a Miranda warning.

Hunter was charged with two counts of murder and one count of arson.
After a nine-day jury trial, he was found guilty of all charges. Hunter appealed
and the convictions were affirmed in State v. Hunter, 2018 ND 173, 914 N.W.2d
527. On that direct appeal, Hunter argued the district court erred in denying
his motion to suppress because the State failed to establish he was given a
Miranda warning and he knowingly and voluntarily waived his constitutional
rights. Hunter also argued the court erred by excluding opinion testimony
regarding false confessions. Hunter further argued his due process rights were
violated because the trial judge was biased and failed to disqualify himself.
[¶3] Hunter applied for post-conviction relief, arguing he was entitled to relief
because (1) the judge was biased; (2) his confession was unconstitutionally
acquired; and (3) he received ineffective assistance of counsel. Prior to the
January 8, 2020 evidentiary hearing the State asserted affirmative defenses of
res judicata and misuse of process, citing N.D.C.C. § 29-32.1-12. The State
sought and obtained leave of court to assert the affirmative defenses more than
30 days after Hunter’s application was filed. Hunter argued the first two issues
were not barred by res judicata or misuse of process because the issues are
intertwined with his ineffective assistance of counsel claims.
[¶4] The district court found the issues of judicial bias and Hunter’s alleged
unconstitutionally obtained confession were barred by res judicata. The court
also found Hunter did not prove his claims of ineffective assistance of counsel
and denied Hunter’s claims for post-conviction relief.
[¶5] Hunter argues the district court erred in finding res judicata barred the
claims that his confession was unconstitutionally obtained and that the trial
judge was biased. Hunter argues these claims were not fully and completely
developed on his previous appeal. Hunter also argues these claims are
intertwined with his claims of ineffective assistance of counsel so that the
doctrine of res judicata does not apply.
[¶6] Relief may be denied as res judicata under N.D.C.C. § 29-32.1-12(1) if
the same claim or claims were “fully and finally determined in a previous
proceeding.” Steen v. State, 2007 ND 123, ¶ 13, 736 N.W.2d 457. “Defendants
are not entitled to post-conviction relief when their claims are variations of
previous claims that have been rejected.” Jensen v. State, 2004 ND 200, ¶ 9,
688 N.W.2d 374. Res judicata bars a claim in a post-conviction relief proceeding
that was decided on direct appeal. Red Paint v. State, 2002 ND 27, ¶¶ 10-11,
639 N.W.2d 503.
[¶7] To the extent Hunter attempts to re-argue judicial bias and the
unconstitutionality of his confession, those issues are barred by res judicata.
This Court extensively discussed Hunter’s confession claim in Hunter, 2018
ND 173, ¶¶ 9-20. We held, “[t]he evidence supports the district court’s finding
that Hunter was given a Miranda warning, and we conclude there is sufficient
competent evidence to support the finding and it is not contrary to the manifest
weight of the evidence.” Hunter, at ¶ 16. Hunter also argued on his direct
appeal that his due process rights were violated because the judge failed to
recuse himself. Id. at ¶ 48. He claimed the trial judge was biased and it affected
his rulings on the Miranda issue and on the decisions to exclude expert witness
testimony. Id. This Court rejected those claims, stating “[i]f Hunter’s demand
intended to rely on bias, his allegations in the motion were too vague.” Id. at
¶ 51.
[¶8] Hunter’s claims of judicial bias and that his confession was
unconstitutionally obtained were decided on direct appeal. We will not revisit
those claims, and we reject the argument that the claims can be revived in this
post-conviction relief proceeding by combining them with allegations of
ineffective assistance of counsel.
[¶9] Hunter agues he received ineffective assistance of counsel when his
lawyer did not attempt to hire an expert on false confessions until a week
before trial. Hunter also argues trial counsel was ineffective for failing to move
to disqualify the trial judge for bias, and failing to provide the court with
sufficient evidence he was properly Mirandized.
[¶10] Post-conviction proceedings are civil and the applicant has the burden of
establishing the grounds for relief. Rourke v. State, 2018 ND 137, ¶ 5, 912
N.W.2d 311. To succeed on a claim for ineffective assistance of counsel, the
applicant must show: (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different. Id. (citing Strickland v. Washington, 466 U.S. 668 (1984)). The
Strickland test is a high bar and must be applied with scrupulous care. Rourke,
at ¶ 5.
[¶11] The standard of review in post-conviction proceedings is well
“A trial court’s findings of fact in a post-conviction
proceeding will not be disturbed on appeal unless clearly erroneous
under N.D.R.Civ.P. 52(a). A finding 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 a
mistake has been made. Questions of law are fully reviewable on
appeal of a post-conviction proceeding.”
Brewer v. State, 2019 ND 69, ¶ 4, 924 N.W.2d 87 (citations omitted). The
question of ineffective assistance of counsel is a mixed question of law and fact
and is fully reviewable on appeal. Id. at ¶ 5. However, “[e]ven under de novo
review, the standard for judging counsel’s representation is a most deferential
one . . . . It is all too tempting to second-guess counsel’s assistance after
conviction or adverse sentence.” Id.
[¶12] To establish the first prong, the applicant must “overcome the ‘strong
presumption’ that trial counsel’s representation fell within the wide range of
reasonable professional assistance, and courts must consciously attempt to
limit the distorting effect of hindsight.” Rourke, 2018 ND 137, ¶ 5 (quoting Laib
v. State, 2005 ND 187, ¶ 9, 705 N.W.2d 845). An unsuccessful trial strategy
does not make for defective assistance of counsel. Brewer, 2019 ND 69, ¶ 6.
[¶13] To establish the second prong, “the defendant must specify how and
where trial counsel was incompetent and the probable different result.”
Brewer, 2019 ND 69, ¶ 9 (quoting Middleton v. State, 2014 ND 144, ¶ 6, 849
N.W.2d 196). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Brewer, at ¶ 9 (quoting Middleton, at ¶ 6;
Strickland, 466 U.S. at 694). “If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, which we expect will often
be so, that course should be followed.” Rourke, 2018 ND 137, ¶ 6.
[¶14] Hunter argues his trial counsel was ineffective by not requesting a
continuance to obtain expert testimony that his confession was false. At trial,
counsel only sought to admit general testimony about false confessions. Hunter
now argues that his confession would have been suppressed with new expert
testimony that his confession was coerced, and that counsel’s failure to request
a continuance was prejudicial. Rejecting the claim, the district court found:
“It is unlikely the trial court would have granted a continuance
even if it had been requested. During a March 8, 2017 hearing, the
trial court told counsel that the trial date was not going to change.
The case had been pending since June of 2015 and was almost two
years old. The trial court made it clear that it fully expected
counsel to be prepared for trial. Even assuming a continuance
would have been granted to allow Hunter to be evaluated by a
medical expert, the trial court stated it would not have allowed
expert testimony on whether Hunter’s confession was false and
that this was for the jury to decide. Therefore, Hunter has failed to
demonstrate he was prejudiced by his counsel’s failure to ask for a
continuance to allow assessments to be conducted to determine
whether Hunter’s confession was false.”
[¶15] The district court’s findings are supported by the record. Under our
standard of review, the court did not clearly err in finding Hunter failed to
show a reasonable probability of a different outcome had trial counsel
requested a continuance to more timely obtain expert testimony that his
confession was false.
[¶16] Hunter argues the trial judge was biased against him as evidenced by
the judge’s adverse rulings. Hunter claims he was prejudiced by trial counsel’s
failure to move to disqualify the judge because of those rulings, and because of
a reference to a newspaper article the judge might have read about the case.
At trial, Hunter demanded a change of judge under N.D.C.C. § 29-15-21. The
demand was rejected because more than 10 days passed since the start of the
case and the judge already ruled on substantive matters. On post-conviction
relief, the district court found “Hunter has failed to raise any valid instance or
evidence of actual bias or lack of impartiality. As such, he has failed to show
any prejudice for his counsel’s failure to argue judicial disqualification under
the North Dakota Code of Judicial Conduct.” Again, under the standard of
review, the district court’s findings were not clearly erroneous.
[¶17] Hunter claims his trial counsel was ineffective because he did not
request a continuance to investigate whether Hunter received Miranda
warnings. The district court found “Hunter has failed to show how he was
prejudiced by his counsel’s failure to ask for a continuance to conduct further
investigation on whether Hunter was Mirandized.” The possibility of finding
further evidence is not enough. See Leavitt v. State, 2017 ND 173, ¶ 16, 898
N.W.2d 435 (explaining defendant’s assertion that calling an officer at trial
“could have proved invaluable” fell short of Strickland requirements). Based
on the standard of review, we conclude the district court did not clearly err in
finding Hunter failed to show he was prejudiced by counsel not requesting a
continuance to further investigate facts surrounding when he was Mirandized.

Outcome: [¶18] The district court order denying post-conviction relief is affirmed.

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