Weaver v. State

[Go to Documents]Filed Apr. 13, 2004[Download as WordPerfect]IN THE SUPREME COURTSTATE OF NORTH DAKOTA2004 ND 69

Michael P. Weaver, Plaintiff and Appellant
v.
State of North Dakota, Defendant and Appellee

No. 20030325

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Norman J. Backes, Judge.
AFFIRMED.
Per Curiam.
Richard E. Edinger, P.O. Box 1295, Fargo, N.D. 58107-1295, for plaintiff and appellant; submitted on brief.
Reid A. Brady, Assistant State's Attorney, P.O. Box 2806, Fargo, N.D. 58108-2806, for defendant and appellee; submitted on brief.

Weaver v. State
No. 20030325

Per Curiam.

[¶1] Michael P. Weaver appeals from the trial court's order dismissing his second petition for post-conviction relief. Weaver directly appealed his conviction for contact by bodily fluid with a law enforcement or correctional facility employee, a violation of N.D.C.C. § 12.1-17-11. We affirmed Weaver's conviction, rejecting his arguments that his counsel was ineffective and that the trial court erred by denying his motion for acquittal, and by failing to provide a lesser-included offense instruction. State v. Weaver, 2002 ND 4, 638 N.W.2d 30. Weaver then petitioned for post-conviction relief, arguing his conviction was obtained in violation of his privilege against self-incrimination, he was prejudiced by the destruction of evidence, and he was afforded ineffective assistance of counsel. The trial court summarily dismissed Weaver's petition, and we affirmed. Weaver v. State, 2003 ND 47, 658 N.W.2d 352.

[¶2] Weaver again petitioned for post-conviction relief, this time contending the statute under which he was convicted violated his right to equal protection because it only protects correctional and law enforcement officers, and not inmates. The trial court summarily dismissed this application, concluding Weaver's claim was misuse of process because he had failed to raise it in earlier proceedings and had not shown how this failure was excused.

[¶3] On appeal, Weaver argues the trial court erred in summarily dismissing his second application for post-conviction relief. Weaver contends he was denied the opportunity to show his failure to previously raise the equal protection issue was excused because court-appointed counsel failed to assist him during the present proceedings. We affirm under N.D.R.App.P. 35.1(a)(6) and (7); Murchison v. State, 2003 ND 38, ¶ 11, 658 N.W.2d 320 (holding the defendant misused the post-conviction process when he inexcusably failed to raise his claim in prior proceedings); Hughes v. State, 2002 ND 28, ¶ 13, 639 N.W.2d 696 (holding the trial court did not err in summarily dismissing defendant's claims for misuse of process when defendant failed to explain why claims were not raised in earlier proceedings); St. Claire v. State, 2002 ND 10, ¶ 13, 638 N.W.2d 39 (holding, "[r]aising issues in a second post-conviction application which could have been raised in an earlier application is a misuse of process").

[¶4] Weaver also attempted to raise, as part of this appeal, the effectiveness of counsel appointed to assist in this second petition for post-conviction relief. This issue was not part of the petition before the trial court and is not part of this appeal.

[¶5]Gerald W. VandeWalle, C.J.
William A. Neumann
Dale V. Sandstrom
Carol Ronning Kapsner
Mary Muehlen Maring