Owens v. State

Summary

The Supreme Court of North Dakota affirmed the dismissal of Earl L. Owens's successive application for post-conviction relief. The majority held that Owens's claim that counsel failed to file a direct appeal was a variation of claims raised in prior proceedings and therefore constituted a misuse of process under North Dakota law. A dissent would have remanded for an evidentiary hearing under Roe v. Flores-Ortega to determine whether Owens had instructed counsel to appeal.

Holdings

1. Owens's claim that counsel failed to file a direct appeal was simply a variation of arguments raised or available in his prior post-conviction proceedings. His failure to raise the present formulation of the claim earlier was inexcusable and constituted misuse of the post-conviction process under N.D.C.C. § 29-32.1-12(2).
2. Roe v. Flores-Ortega did not require reversal because Owens's own prior filings showed that counsel had consulted with him and advised that there were no grounds for appeal, and the successive claim was barred by misuse of process. Under the circumstances, prejudice could not be presumed.

Questions Presented

1. Whether Owens's successive post-conviction application was properly dismissed as a misuse of process because he inexcusably failed to raise his claim that counsel failed to file a requested direct appeal in an earlier post-conviction proceeding.
2. Whether Roe v. Flores-Ortega required an evidentiary hearing or reversal based on Owens's allegation that counsel failed to file a direct appeal as instructed.

Disposition

affirmed