In order to prevail on a post-conviction claim of ineffective assistance, the petitioner bears a heavy burden. Rümmer v. State, 2006 ND 216, ¶ 10, 722 N.W.2d 528. The petitioner must prove that (1) counsel's representation fell below an objective standard of reasonableness, and (2) the petitioner was prejudiced by counsel's deficient performance.
[¶ 12] On appeal, we do not second guess matters of trial tactics, such as the decision to call certain witnesses, hire private investigators, or how to question certain witnesses. State v. Austin, 2007 ND 30, ¶ 32, 727 N.W.2d 790; Rummer v. State, 2006 ND 216, ¶ 12, 722 N.W.2d 528. "Strategic choices by trial counsel `made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable'." Rummer, at ¶ 12 (quoting State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D. 1985)).
“(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.”State v. Muhle, 2007 ND 132, ¶ 25, 737 N.W.2d 647 (quoting Rummer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528). [¶ 23] The State provided Clark with copies of the invoices prior to trial.
"(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed."State v. Muhle, 2007 ND 132, ¶ 25, 737 N.W.2d 647 (quoting Rummer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528). [¶23] The State provided Clark with copies of the invoices prior to trial.
[¶ 10] In Brady, “the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment.” Rümmer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528 (quoting Syvertson v. State, 2005 ND 128, ¶ 6, 699 N.W.2d 855) (emphasis added). The suppressed “evidence is material if ‘there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”
Proceedings on applications for post-conviction relief are civil in nature and governed by the North Dakota Rules of Civil Procedure. Rümmer v. State, 2006 ND 216, ¶ 9, 722 N.W.2d 528. The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602. The district court's findings of fact in a post-conviction proceeding will not be disturbed on appeal unless they are clearly erroneous under N.D.R.Civ.P. 52(a). Laib v. State, 2005 ND 187, ¶ 11, 705 N.W.2d 845. A finding of fact is clearly erroneous if induced by an erroneous view of the law, if no evidence exists to support it, or if the reviewing court is left with a definite and firm conviction a mistake has been made. Bernhardt v. Harrington, 2009 ND 189, ¶ 5, 775 N.W.2d 682. Questions of law are fully reviewable on appeal in post-conviction proceedings.
B [¶ 25] Muhle also asserts that the State's failure to disclose G.E.'s statement constitutes a Brady violation. This Court recently explained the Brady standard in Rümmer v. State, 2006 ND 216, ¶ 21, 722 N.W.2d 528: "In Brady [v. Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)], the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused violates due process if the evidence is material to guilt or punishment."
[¶ 8] Proceedings on applications for post-conviction relief are civil in nature and governed by the North Dakota Rules of Civil Procedure. Rümmer v. State, 2006 ND 216, ¶ 9, 722 N.W.2d 528. The petitioner has the burden of establishing grounds for post-conviction relief. Flanagan v. State, 2006 ND 76, ¶ 10, 712 N.W.2d 602.
On appeal, we do not second-guess matters of trial tactics, such as the decision whether to attempt to depose a witness, hire a private investigator, or how to question a witness. See Rummer v. State, 2006 ND 216, ¶ 12, 722 N.W.2d 528. "Strategic choices by trial counsel `made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.'" Id. (quoting State v. Schlickenmayer, 364 N.W.2d 108, 112 (N.D. 1985)).
To establish a Brady violation, the defendant must prove: "'(1) the government possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not have obtained it with reasonable diligence; (3) the prosecution suppressed the evidence; and (4) a reasonable probability exists that the outcome of the proceedings would have been different if the evidence had been disclosed.'" Syvertson, at ¶ 6 (quoting State v. Goulet, 1999 ND 80, ¶ 15, 593 N.W.2d 345). Rummer, 2006 ND 216, ¶ 21, 722 N.W.2d 528. Loughead failed to present any evidence to satisfy any of the Brady requirements.