Leavitt v. North Dakota

Heather Leavitt appealed a district court order summarily dismissing her application for post-conviction relief. In 2014 a jury convicted Heather Leavitt of attempted murder, for attacking her husband as he slept with a knife. 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].” 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. The North Dakota Supreme Court found that in opposing the State’s motion for summary disposition, an applicant for post-conviction relief 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. To avoid summary dismissal of an ineffective assistance of counsel claim, an applicant for post-conviction relief 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. Finding no reversible error in the district court’s order, the Supreme Court affirmed. View "Leavitt v. North Dakota" on Justia Law