Williamson v. State (2025 ND 66): Waiver of Res Judicata, Affirmance on Misuse-of-Process, and the Categorical Bar on Ineffective Assistance of Postconviction Counsel Claims

Introduction

In Williamson v. State, 2025 ND 66, the North Dakota Supreme Court addressed two recurring questions in postconviction litigation under the Uniform Postconviction Procedure Act (UPPA): (1) the proper use and waiver of the affirmative defense of res judicata, and (2) the extent to which an applicant may allege ineffective assistance of postconviction counsel. The Court held that while the district court erred by dismissing on res judicata because the State had not pleaded that defense, the dismissal could be affirmed on the State’s pleaded misuse-of-process defense. The Court also reaffirmed the Legislature’s 2013 categorical prohibition on claims alleging ineffective assistance of postconviction counsel, rejecting arguments that Martinez v. Ryan provides a state-law exception.

The case arises from Robert Williamson’s second application for postconviction relief, following convictions for gross sexual imposition and luring a minor, subsequent probation revocation, and an initial postconviction proceeding. In his second application, Williamson asserted newly discovered evidence and alleged ineffective assistance by both his probation revocation counsel and his first postconviction counsel. The district court denied relief, citing res judicata and the statutory bar to ineffective assistance of postconviction counsel claims. Williamson appealed.

Key Holdings at a Glance

Res judicata is an affirmative defense that is waived if not pleaded; a district court errs by dismissing on a waived defense.
Where the State pleads misuse of process, dismissal may be affirmed on that ground even if the district court relied on an erroneous ground (res judicata).
N.D.C.C. § 29-32.1-09(2) categorically prohibits claims of ineffective assistance of postconviction counsel; the first sentence permits sua sponte dismissal, and the second sentence imposes an absolute bar.
Martinez v. Ryan does not create a state-law exception to the statutory bar and does not govern state postconviction procedure.
Issues not preserved in the record (e.g., self-representation claims raised only in a supplemental statement) will not be considered on appeal.

Summary of the Opinion

The Supreme Court affirmed the order denying Williamson’s second postconviction application. It held:

The district court erred by applying res judicata because the State did not plead that defense (waiver). However, the State did plead misuse of process, and because Williamson could have raised his ineffective-assistance-of-revocation-counsel claim in his first postconviction proceeding but did not, dismissal was properly affirmed on misuse-of-process grounds. See N.D.C.C. § 29-32.1-12(2)(a).
Williamson’s claim alleging ineffective assistance of postconviction counsel is barred by N.D.C.C. § 29-32.1-09(2). The Court rejected his interpretation of the statute and his attempt to import Martinez v. Ryan’s federal habeas exception into state postconviction law.
Williamson’s supplemental claim regarding his right to self-representation was not preserved and was therefore not addressed.

Case Background and Procedural Posture

Underlying convictions: Williamson pleaded guilty to two counts of gross sexual imposition and one count of luring a minor by electronic means (Burleigh County No. 08-2016-cr-2578). The court imposed a sentence with suspended time; no direct appeal followed.
Probation revocation: In 2021, revocation proceedings commenced; the court appointed counsel. In January 2022, the court revoked probation and resentenced; no appeal followed.
First postconviction application (No. 08-2022-cv-0836): Raised claims about alleged falsehoods by the probation officer, new evidence, and insufficient proof of a violation. The district court initially denied on its own motion; the Supreme Court reversed for procedural error and remanded. On remand, the district court denied after hearing; the Supreme Court summarily affirmed. See Williamson v. State, 2022 ND 192, 981 N.W.2d 928; 2023 ND 179, 996 N.W.2d 312.
Sentence appeal: The Supreme Court later held his resentencing failed to account for accrued good time and remanded for resentencing. See State v. Williamson, 2024 ND 7, 1 N.W.3d 610.
Second postconviction application (2024): Alleged new evidence and ineffective assistance by revocation counsel and first postconviction counsel. The State denied the allegations and pleaded misuse of process (but not res judicata). The district court nevertheless denied on res judicata and statutory bar grounds. Williamson appealed.

Detailed Analysis

1) Precedents and Authorities Cited

a) Right to Counsel and the Nature of Revocation Proceedings

Constitutional right to effective assistance in criminal prosecutions: U.S. Const. amend. VI; N.D. Const. art. I, § 12; Damron v. State, 2003 ND 102, ¶ 6, 663 N.W.2d 650.
Probation revocation: Right to counsel recognized by rule, not necessarily constitutional. N.D.R.Crim.P. 32(f)(3)(A)(iii); State v. Jensen, 2010 ND 3, ¶ 8, 777 N.W.2d 847; State v. Holbach, 2007 ND 114, ¶ 6, 735 N.W.2d 862; State v. Wardner, 2006 ND 256, ¶ 18, 725 N.W.2d 215.

b) Postconviction Proceedings and Standards

UPPA framework: N.D.C.C. ch. 29-32.1; civil in nature; applicant bears the burden; civil rules apply unless inconsistent. Samaniego v. State, 2024 ND 187, ¶ 6, 12 N.W.3d 827.
Standard of review: Findings of fact—clearly erroneous; questions of law—fully reviewable. Samaniego, citing Urrabazo v. State, 2024 ND 67, ¶ 6, 5 N.W.3d 521.

c) Res Judicata as an Affirmative Defense and Waiver

Statutory authorization to deny where a claim was fully and finally determined: N.D.C.C. § 29-32.1-12(1).
Res judicata must be pleaded; the State bears the burden; failure to plead constitutes waiver. N.D.C.C. § 29-32.1-12(3); Chase v. State, 2024 ND 215, ¶ 17, 14 N.W.3d 37; Aune v. State, 2024 ND 99, ¶ 6, 6 N.W.3d 833; Johnson v. State, 2010 ND 213, ¶ 10, 790 N.W.2d 741.
Applicability of res judicata is a question of law, fully reviewable. Froistad v. State, 2021 ND 92, ¶ 5, 959 N.W.2d 863 (quoting State v. Atkins, 2019 ND 145, ¶ 12, 928 N.W.2d 441).

d) Misuse of Process as an Alternative Bar

Definition: Misuse occurs where the applicant inexcusably failed to raise a claim in a prior proceeding. N.D.C.C. § 29-32.1-12(2)(a).
Policy: Postconviction proceedings are not intended to allow multiple opportunities to raise the same or similar issues that could have been raised earlier. Froistad, 2021 ND 92, ¶ 7 (quoting Atkins, 2019 ND 145, ¶ 12).
Appellate affirmance on correct ground despite incorrect reasoning: Steen v. State, 2007 ND 123, ¶¶ 9–10, 16, 23, 736 N.W.2d 457 (affirming on misuse-of-process where district court’s res judicata analysis was overly broad); Myers v. State, 2017 ND 66, ¶ 10, 891 N.W.2d 724.

e) Ineffective Assistance of Postconviction Counsel

No constitutional right to counsel in state postconviction proceedings. Mwinyi v. State, 2024 ND 126, ¶ 14, 9 N.W.3d 665 (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991)).
Pre-2013 recognition of such claims: Klose v. State, 2008 ND 143, ¶ 13, 752 N.W.2d 192.
2013 legislative change: N.D.C.C. § 29-32.1-09(2) now prohibits these claims and permits sua sponte dismissal. 2013 N.D. Sess. Laws ch. 248, § 2; Mwinyi, ¶ 14 (summary dismissal appropriate).
Martinez v. Ryan (federal habeas procedural default exception) does not govern state postconviction proceedings: Lehman v. State, 2014 ND 103, ¶ 21, 847 N.W.2d 119; see also Brown v. McDaniel, 331 P.3d 867, 872 (Nev. 2014).
Statutory construction principle: When the Legislature speaks, absent constitutional infirmity, courts apply the statute as written. N.D.C.C. § 1-01-03; State ex rel. Johnson v. Baker, 21 N.W.2d 355, 359 (N.D. 1945) (quoting Martin v. Tyler, 60 N.W. 392 (N.D. 1894)).

f) Preservation and Indigent Party Supplemental Statements

Supplemental statements may identify issues not covered by counsel, but they must include record citations and preserved errors. N.D.R.App.P. 24(a)(1), (a)(3).
Issues raised for the first time on appeal in postconviction cases will not be addressed. Edwardson v. State, 2019 ND 297, ¶ 12, 936 N.W.2d 376.

2) The Court’s Legal Reasoning

a) Res Judicata: Waiver for Failure to Plead

The district court dismissed Williamson’s ineffective-assistance-of-revocation-counsel claim on res judicata. That was error because the State did not plead res judicata in its answer, and the UPPA makes res judicata an affirmative defense that must be pleaded. See N.D.C.C. § 29-32.1-12(3). Failure to plead constitutes waiver. The Court therefore declined the State’s invitation to salvage res judicata on the theory that the issue was “sufficiently advanced and addressed” in prior proceedings; a waived defense cannot support dismissal.

b) Misuse of Process: A Pled, Valid Alternative Ground

The Court nevertheless affirmed because the State had pleaded misuse of process. Under N.D.C.C. § 29-32.1-12(2)(a), an applicant misuses the postconviction process by inexcusably failing to raise a claim earlier. Williamson’s ineffective assistance claim regarding revocation counsel could and should have been raised in his first postconviction proceeding. Indeed, on remand in that first case, the district court explicitly asked Williamson’s postconviction counsel whether she would offer evidence on an ineffective-assistance-of-revocation-counsel theory; counsel said she would not. Given the record and the governing law, the failure to raise the claim then rendered the later assertion a misuse of process. Echoing Steen and Myers, the Court found affirmance proper even though the district court relied on an erroneous ground.

b) Ineffective Assistance of Postconviction Counsel: Statutorily Prohibited

The Court confronted Williamson’s argument that his first postconviction counsel was ineffective for not appealing and that this “procedural defect” should be cognizable under Martinez v. Ryan. The argument failed for two reasons:

First, North Dakota law supplies no constitutional right to counsel in postconviction proceedings, per Mwinyi and Coleman. Absent such a right, the Legislature’s policy choice controls.
Second, N.D.C.C. § 29-32.1-09(2) forecloses these claims. The first sentence—“The court, on its own motion, may dismiss any grounds of an application which allege ineffective assistance of postconviction counsel”—confers authority upon courts to dismiss sua sponte without waiting for a State motion. The second sentence then imposes a categorical prohibition: “An applicant may not claim constitutionally ineffective assistance of postconviction counsel in proceedings under this chapter.” Read together, the statute both authorizes sua sponte dismissal and substantively bars the claim.

The Court rejected Williamson’s contention that the use of “may” in the first sentence creates room to entertain such claims in some circumstances. The permissive “may” merely describes the court’s authority to dismiss without motion; it does not negate the absolute prohibition in the second sentence. Martinez, addressing federal habeas procedural default rules, does not displace state substantive limits on postconviction claims. See Lehman; Brown.

c) Preservation: Self-Representation Claim Not Reached

Williamson’s supplemental statement raised a self-representation issue, but it lacked record citations showing preservation in the postconviction court. Under N.D.R.App.P. 24(a)(3) and Edwardson, the Court declined to address it.

3) Impact and Practical Implications

a) For Prosecutors and the State

Plead all applicable affirmative defenses—both res judicata and misuse of process—in the answer to a postconviction application. Failure to plead res judicata waives it.
Even if the district court relies on an erroneous ground, an appellate court may affirm on a properly pleaded alternative ground (e.g., misuse of process).

b) For Defense Counsel and Applicants

Raise all postconviction claims—including ineffective assistance of revocation counsel—at the earliest opportunity. Failure to do so risks a misuse-of-process bar in later applications.
Do not rely on “ineffective assistance of postconviction counsel” to excuse prior omissions; North Dakota law categorically bars such claims under N.D.C.C. § 29-32.1-09(2).
Martinez v. Ryan does not provide a state-law workaround to raise ineffective postconviction counsel claims.
Preserve new issues in the district court and support appellate supplemental statements with specific record citations; otherwise, the Supreme Court will not consider them.

c) For Trial Courts

Avoid dismissing on unpleaded affirmative defenses. If the State has not pleaded res judicata, it is waived.
Where the State pleads misuse of process and the record shows a claim could have been raised earlier but was not, dismissal on misuse-of-process grounds is proper.
Under N.D.C.C. § 29-32.1-09(2), courts may and should dismiss sua sponte any claim alleging ineffective assistance of postconviction counsel; the statute imposes an absolute bar.

d) Systemic and Doctrinal Effects

The decision reinforces the UPPA’s finality and efficiency goals by discouraging serial litigation of claims that could have been presented earlier.
It clarifies the statutory architecture: res judicata and misuse of process are distinct affirmative defenses with different predicates, burdens, and waiver rules, and courts may affirm on the latter when the former was waived.
It settles interpretive ambiguity in § 29-32.1-09(2): the statute both authorizes sua sponte dismissals and imposes a categorical substantive bar, foreclosing ineffective-assistance-of-postconviction-counsel claims in state postconviction proceedings.

Complex Concepts Simplified

Res Judicata vs. Misuse of Process

Res judicata: A claim-preclusion doctrine. Under the UPPA, an application “may be denied” if the same claim was fully and finally decided before. It is an affirmative defense that the State must plead. If not pleaded, it is waived.
Misuse of process: A forward-looking gatekeeping rule. If an applicant inexcusably fails to raise a claim during prior proceedings, a later attempt to raise it misuses the UPPA process and may be dismissed. Also an affirmative defense, but here, properly pleaded and applied.

Ineffective Assistance of Counsel: Where and When It Applies

Criminal prosecutions: Defendants have a constitutional right to effective assistance of counsel. Failure to provide effective assistance can be raised on direct appeal or postconviction.
Probation revocation: A right to counsel exists under N.D.R.Crim.P. 32, but the Court has rejected a categorical constitutional right to counsel in revocation proceedings; rights are more limited.
Postconviction proceedings: There is no constitutional right to counsel. The Legislature has expressly barred claims alleging ineffective assistance of postconviction counsel. Courts may dismiss such claims on their own motion.

Martinez v. Ryan: What It Does and Does Not Do

What Martinez does: In federal habeas cases, it excuses certain procedural defaults where the petitioner lacked effective counsel in the initial state collateral proceeding on an ineffective-assistance-of-trial-counsel claim.
What Martinez does not do: It does not control state postconviction procedures or override state statutes that bar categories of claims (like ineffective assistance of postconviction counsel). North Dakota has made a legislative choice to prohibit such claims in state court.

Conclusion

Williamson v. State (2025 ND 66) is a clarifying decision on two pillars of North Dakota postconviction practice. First, it rigorously enforces the pleading and waiver rules for affirmative defenses: res judicata must be pleaded or it is waived; however, courts may affirm on a properly pleaded alternative defense such as misuse of process. Second, it gives a definitive reading of N.D.C.C. § 29-32.1-09(2): the statute both empowers courts to dismiss sua sponte and categorically bars claims alleging ineffective assistance of postconviction counsel. The Court also reaffirms that Martinez v. Ryan does not alter North Dakota’s statutory postconviction regime and underscores the necessity of issue preservation on appeal.

Practically, the decision incentivizes applicants to marshal all available claims—particularly ineffective-assistance arguments connected to revocation—in their first postconviction application, and it instructs prosecutors to plead all applicable defenses. By tightening adherence to the UPPA’s defensive architecture and closing the door on ineffective postconviction counsel claims, the Court advances finality, efficiency, and predictability in North Dakota’s postconviction litigation.

Appendix: Notable Citations Within the Opinion

N.D.C.C. § 29-32.1-12(1), (2)(a), (3) (res judicata; misuse of process; pleading requirement)
N.D.C.C. § 29-32.1-09(2) (prohibition on ineffective assistance of postconviction counsel; sua sponte dismissal)
Samaniego v. State, 2024 ND 187; Urrabazo v. State, 2024 ND 67 (standards)
Froistad v. State, 2021 ND 92; Atkins, 2019 ND 145 (res judicata; misuse-of-process policy)
Steen v. State, 2007 ND 123; Myers v. State, 2017 ND 66 (affirmance on correct ground)
Mwinyi v. State, 2024 ND 126; Coleman v. Thompson, 501 U.S. 722 (no constitutional right to postconviction counsel)
Klose v. State, 2008 ND 143 (pre-2013 recognition of IAPC claims)
Lehman v. State, 2014 ND 103; Brown v. McDaniel, 331 P.3d 867 (Martinez not controlling in state postconviction)
N.D.R.App.P. 24(a); Edwardson v. State, 2019 ND 297 (supplemental statements; preservation)
State v. Williamson, 2024 ND 7 (good-time credits at resentencing)
Williamson v. State, 2022 ND 192; 2023 ND 179 (first postconviction proceedings)