I N T H E S U P R EM E C O U R T

STATE OF NORTH DAKOTA

2024 ND 126

Hamisi Mohamed Mwinyi, Petitioner and Appellant

v.

State of North Dakota, Respondent and Appellee

No. 20240003

Appeal from the District Court of Stark County, Southwest Judicial District, the Honorable 

Dann E. Greenwood, Judge.

AFFIRMED.

Opinion of the Court by Tufte, Justice.

Kiara C. Kraus-Parr, Grand Forks, N.D., for petitioner and appellant.

Amy G. Pikovsky, Assistant State’s Attorney, Dickinson, N.D., for respondent and 

appellee; submitted on brief.
1

Mwinyi v. State

No. 20240003

Tufte, Justice.

[¶1] Hamisi Mohamed Mwinyi appeals from a district court’s order summarily disposing 

of his application for postconviction relief. On appeal, he argues the district court erred 

because the State’s motion for summary disposition did not comply with the rules of civil 

procedure and sufficient evidence supported the application. He also argues he was denied 

due process. We affirm.

I

[¶2] Mwinyi applied for postconviction relief, asserting as grounds: “One of my grounds 

will be ineffective assistance of counsel. I am illiterate in English. I am from Tanzania, 

Africa, and my native language is Swahili.” The State filed an answer and a motion to 

summarily dispose of the application. Mwinyi objected and moved to amend his 

application to argue his attorney was ineffective because he failed to use a translator to 

communicate with Mwinyi and as a result he was unable to communicate fully with his 

attorney in order to prepare for hearings and trial. The district court denied the motion to 

amend.

[¶3] The district court summarily dismissed Mwinyi’s application and explained that it 

would have granted the State summary disposition if the proposed amendment had been 

granted. Mwinyi appeals.

II

[¶4] Mwinyi argues the district court erred in granting the State’s motion for summary 

disposition and dismissal because the State did not comply with the rules of civil procedure 

when it “combined the motion and answer.”

[¶5] “Postconviction relief proceedings are civil in nature and governed by the North 

Dakota Rules of Civil Procedure.” Atkins v. State, 2019 ND 146, ¶ 4, 928 N.W.2d 438. 

Whether the rules of civil procedure were properly followed is a question of law which will 

be reviewed de novo. Chase v. State, 2021 ND 206, ¶ 5, 966 N.W.2d 557. In Chase, the 

State requested summary dismissal in its answer, also requesting the answer serve as notice 

of the request. Id. at ¶ 4. We explained that by not serving and filing notice of motion with 
2

a motion and instead requesting summary disposition in its answer, the State failed to put 

the applicant on notice. Id. at ¶¶ 8-9.

[¶6] Here, the State served and filed a notice of motion, a motion for summary 

disposition, and a single document containing its answer to the application and its brief 

supporting the motion for summary disposition. The State complied with the rules and 

Chase because Mwinyi was put on notice that the State had moved for summary disposition 

by the notice of motion and motion. The State did not violate the rules of civil procedure 

by combining its answer to the application and its brief in support of its motion into the 

same document.

III

[¶7] Mwinyi argues he was entitled to a hearing because there was sufficient competent 

evidence to support his ineffective assistance of counsel claim because he is illiterate in 

English and his attorney did not use a translator to speak with him outside of court.

[¶8] We have explained:

When a dismissal under N.D.R.Civ.P. 12(b)(6) is appealed, this Court 

construes the application in the light most favorable to the applicant and 

accepts the well-pleaded allegations as true. We will affirm a dismissal for 

failure to state a claim if it would be impossible for the applicant to prove a 

claim for which relief can be granted.

Burden v. State, 2019 ND 178, ¶ 14, 930 N.W.2d 619 (quoting Greywind v. State, 2015 

ND 231, ¶¶ 7-8, 869 N.W.2d 746).

[¶9] The district court dismissed the application under N.D.C.C. § 29-32.1-09, applying 

Rule 12(b)(6) standards, because Mwinyi failed to state a claim upon which relief could be 

granted. We disagree. Construing the application in the light most favorable to Mwinyi, he 

alleged ineffective assistance of counsel because he is illiterate in English, and by natural 

implication, his attorney did not effectively communicate with him. This states a claim for 

which relief could be granted.

[¶10] The district court explained that it would have granted the State’s motion for 

summary disposition under N.D.C.C. § 29-32.1-09.1, applying Rule 56 standards, because 

when the State put Mwinyi to his proof, he failed to provide competent evidence to support 

his claim.
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[¶11] Ordinarily, summary disposition of an ineffective assistance of counsel claim should 

not be granted without an evidentiary hearing. Campbell v. State, 2021 ND 45, ¶ 14, 956 

N.W.2d 387.

However, this Court has upheld summary denials of [postconviction] relief 

when the applicants were put to their proof, and summary disposition 

occurred after the applicants then failed to provide some evidentiary support 

for their allegations. Once the State moves for summary disposition pointing 

out the absence of supporting evidence, the defendant is put on notice of the 

issue and a minimal burden shifts to the defendant to provide some 

competent evidence to support his claim. If competent evidence is provided, 

the defendant is entitled to an evidentiary hearing.

Atkins v. State, 2017 ND 290, ¶ 6, 904 N.W.2d 738 (quoting Steinbach v. State, 2003 ND 

46, ¶ 15, 658 N.W.2d 355) (cleaned up).

[¶12] Here, the State put Mwinyi on notice to provide competent admissible evidence to 

support his claim. Mwinyi provided no evidence he would have pleaded not guilty and 

insisted on going to trial but for the alleged error by his counsel. Bahtiraj v. State, 2013 

ND 240, ¶¶ 15, 16, 840 N.W.2d 605. Because Mwinyi failed to provide any competent 

evidence to the court beyond his application, the court properly denied his application on 

the alternative grounds of summary disposition.

IV

[¶13] Mwinyi argues his right to due process was violated because his postconviction 

relief attorney was ineffective for failure to order transcripts or secure an evidentiary 

hearing.

[¶14] In Coleman v. Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 115 L.Ed.2d 640 

(1991), the United States Supreme Court explained there is no constitutional right to have 

an attorney for postconviction proceedings, so Mwinyi cannot claim on appeal that his 

postconviction attorney was ineffective. Claims of ineffective assistance of postconviction 

counsel are subject to summary dismissal. N.D.C.C. § 29-32.1-09(2) (“The court, on its 

own motion, may dismiss any grounds of an application which allege ineffective assistance 

of postconviction counsel.”). See Johnson v. State, 2004 ND 130, ¶ 15, 681 N.W.2d 769. 

On the basis of the arguments presented here, Mwinyi has not established a denial of 

constitutional due process.
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V

[¶15] The district court’s order denying Mwinyi’s application for postconviction relief is 

affirmed.

[¶16] Jon J. Jensen, C.J.

Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Douglas A. Bahr