WHITETAIL v. STATE (2026)

[¶1] Milo Whitetail appeals from a district court judgment denying his application for postconviction relief. Whitetail argues he received ineffective assistance of counsel because his trial attorney failed to adequately review discovery with him, failed to communicate with him, and failed to discuss the defense of self-defense with him. Whitetail argues the court made no findings on his trial attorney's decision to refrain from conducting redirect examination of defense expert Dr. Weisz, regarding Weisz's testimony that his professional review and expert opinion did not include a determination of Whitetail's criminal intent. Whitetail also argues lack of adequate findings regarding his claim that counsel was ineffective by not calling Whitetail to testify at trial.

[¶2] To prevail on an ineffective assistance of counsel claim, the petitioner must satisfy both prongs of Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which require: “(1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Koon v. State, 2023 ND 247, ¶ 21, 1 N.W.3d 593 (quoting Kratz v. State, 2022 ND 188, ¶ 12, 981 N.W.2d 891). Findings of fact made in a postconviction relief proceeding are subject to the clearly erroneous standard of review. Urrabazo v. State, 2024 ND 67, ¶ 6, 5 N.W.3d 521.

[¶3] After an evidentiary hearing, the district court found Whitetail failed to establish his trial attorney's representation fell below an objective standard of reasonableness on his claims that his attorney failed to adequately review discovery with him, failed to communicate with him, and failed to discuss the defense of self-defense. The court further found that, on a cumulative basis for all claims, Whitetail failed to establish a reasonable probability of a different outcome at trial. That cumulative finding resolves the prejudice prong on each of Whitetail's claims, including those the court did not separately analyze.

[¶4] The district court's findings are not clearly erroneous and the court did not err in determining Whitetail failed to establish ineffective assistance of counsel. We summarily affirm under N.D.R.App.P. 35.1(a)(2).

Per Curiam.

[¶5] Lisa Fair McEvers, C.J. Jerod E. Tufte Jon J. Jensen Douglas A. Bahr Mark A. Friese