This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1627

 

Ronnie Lajuan Russell-Bey, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 17, 2001

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. 98051223

 

 

Ronnie Lajuan Russell-Bey, MCF - Faribault, #199300, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent).

 

 

††††††††††† Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Shumaker, Judge.


U N P U B L I S H E D†† O P I N I O N

R.A. RANDALL, Judge

††††††††††† Appellant Ronnie Lajuan Russell-Bey challenges the district courtís order summarily denying his petition for postconviction relief arguing that (1) he was denied effective assistance of appellate counsel on direct appeal for appellate counselís failure to raise the issue of prosecutorial misconduct, and (2) he was entitled to an evidentiary hearing on that claim.† We affirm.

FACTS

††††††††††† Appellant Ronnie Lajune Russell-Bey was convicted on four counts of second-degree assault.† He received four consecutive sentences of 36 months each.†

††††††††††† At trial, the witnesses were sequestered because of concerns that Russell-Bey's father, who was watching the trial, was talking to Russell-Bey's mother and brother, who were witnesses in the case, about testimony from other witnesses.† The court instructed Russell-Bey's father not to talk to the witnesses about what occurred in the courtroom.† At one point, the prosecutor asked Russell-Bey's mother and brother during their testimony whether Russell-Bey's father talked to them during a break about the trial.† They both answered in the negative.† Russell-Bey's counsel did not object to either of these questions.† The prosecutor briefly raised this point in closing arguments.† Russell-Bey's counsel, again, did not object.

††††††††††† After the trial, Russell-Bey filed a motion for a new trial, which was denied by the district court.† He subsequently filed an appeal asserting inappropriate jury instructions and unfair sentence. Russell-Bey's counsel did not raise the issue of prosecutorial misconduct on appeal.† This court affirmed the verdict and sentence.[1]† On September 28, 1999, Russell-Bey's request for review from the Minnesota Supreme Court was denied.

††††††††††† On July 24, 2000, Russell-Bey filed a pro se petition for postconviction relief arguing that he was denied a fair trial based upon prosecutorial misconduct and denied effective assistance of appellate counsel.† The district court denied his petition without an evidentiary hearing.† Russell-Bey appeals.

D E C I S I O N

††††††††††† This courtís scope of review for postconviction proceedings is limited to determining whether the record contains sufficient evidence to sustain the findings of the postconviction court.† State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).† The postconviction courtís rulings are reviewed under an abuse of discretion standard.† State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).

I.††††††††† Ineffective Assistance of Appellate Counsel

††††††††††† Russell-Bey argues that he was denied effective assistance of appellate counsel for failure to raise the issue of prosecutorial misconduct on appeal.† Russell-Bey asserts that but for the prosecutor's questions to his mother and brother as to whether his father talked to either of them about the trial and their testimony, and the corresponding reference to his father in the state's closing statements, he would not have been found guilty of second-degree assault.† He claims that because he did not recognize the gravity of these issues until a fellow prisoner told him he should have been granted the postconviction relief of a new trial.

††††††††††† Claims of ineffective assistance of appellate counsel should be analyzed under the same two-pronged rule that is applied to claims of ineffective assistance of trial counsel.† Roby v. State (Roby II), 547 N.W.2d 354, 357 (Minn. 1996).† When a postconviction petitioner claims ineffective assistance of counsel, the petitioner must allege facts affirmatively showing that

counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

 

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).† The reasonable probability must be "sufficient to undermine confidence in the outcome" of the case.† Id.† (citation omitted).

††††††††††† "The right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports."† Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (citations omitted).†† Further, "appellate counsel [has] no duty to raise all possible issues and thereby jeopardize more meritorious ones."† Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (citation omitted).† All matters raised in the direct appeal, and any claims known to the petitioner at that time but not raised, will not be considered in a subsequent petition for postconviction relief.† State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).† A claim known but not raised on direct appeal will not be considered postconviction, unless the "claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time" of the direct appeal.† Roby v. State (Roby I), 531 N.W.2d 482, 484 (Minn. 1995) (quotation omitted).

††††††††††† Russell-Bey's trial counsel did not object to either the prosecution's questions regarding whether Russell-Bey's father discussed the trial with his mother and brother or the reference to such discussion in the state's closing arguments.† Arguably, Russell-Bey forfeited his right to raise the issue on appeal.† See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding issue not raised and addressed below generally not reviewed).† However, addressing the merits, his claim does not warrant a reversal.† The prosecutor asked two questions:† (1) "Does your husband talk to you about how the trial is going?" and (2) "Did you talk to your dad at all about what has been going on in this trial?"† On this record, those were not unfair questions to witnesses.† In closing arguments, the prosecutor said in reference to Russell-Bey's mother:

Her husband attends court every day, goes in and out of the courtroom.† She was waiting outside.† They go home together every night.† But she says they never talk about the trial.

We agree that the prosecutor could have done without the sarcasm inherent in arguing to the jury that these closely related witnesses come and go to court every day together but claim they never talk about the trial.† When a prosecutor asks a witness a question on cross-examination, he is stuck with the answer unless he can get into evidence other substantive or impeachment evidence that affects the answer the witness gave.† The prosecutor did none of that in this case, but simply, in the closing argument, got sarcastic about the witness's answer denying any improper out-of-court contact with the father of appellant.† A prosecutor can only make permissible inferences from evidence in the record.† State v. Williams, 586 N.W.2d 123, 127 (Minn. 1998).† When determining if there is a basis for reversal of appellant's conviction, we take the prosecutor's statements as a whole.† State v. Washington, 521 N.W.2d 35, 40 (Minn. 1994).† A defendant has a duty to object promptly or seek curative instructions if a prosecutor makes improper statements during closing argument.† State v. Brown, 348 N.W.2d 743, 747 (Minn. 1984).† Generally, a defendant who fails to object or seek curative instructions has waived the right to raise the issue on appeal.† Rairdon v. State, 557 N.W.2d 318, 324 (Minn. 1996).†

A reviewing court, however, may grant "relief from plain errors affecting substantial rights."† Id. at 323 (citation omitted).† Under the plain-error rule, the alleged conduct must be

so clearly erroneous under applicable law and so prejudicial to the defendant's right to a fair trial that the defendant's right to a remedy should not be forfeited.

 

State v. Hunt, 615 N.W.2d 294, 302 (Minn. 2000).† Additionally, a conviction may also be reversed "prophylactically or in the interests of justice" when prosecutors persist in committing misconduct.† State v. Salitros, 499 N.W.2d 815, 820 (Minn. 1993) (citation omitted).† That was not the situation in this case.† The prosecutor's questions addressed the credibility of the witnesses.† Admittedly, the prosecutor's closing remark insinuated a fact not supported by the evidence, but taking all the questions and the closing remark in combination with all other evidence, we do not find sufficient prejudice to warrant a new trial.

††††††††††† Regarding ineffective assistance of appellate counsel, Russell-Bey conceded in his postconviction papers that on appeal "the issues raised were what seemed meritorious to the attorney," and that he could have submitted a supplemental pro se brief on the issue.† Russell-Bey knew or should have known of the issue at the time of the first appeal.† His claiming not to know of the "gravity" of the issue until a fellow prisoner brought it to his attention does not make the claim "so novel that it can be said that its legal basis was not reasonably available to counsel at the time" of the direct appeal.† Roby I, 531 N.W.2d at 484 (quotation omitted).

††††††††††† Appellate counsel's decision to not raise the issue of (questionable, if any) prosecutorial misconduct did not fall below an objective standard of reasonableness.† We conclude the postconviction court did not err in dismissing Russell-Bey's petition for post conviction relief.

II.††††††† Evidentiary Hearing

††††††††††† Russell-Bey argues that the postconviction court abused its discretion in denying him an evidentiary hearing.† He claims that an evidentiary hearing is required when bringing forth a claim of ineffective assistance of counsel because the attorney is the only one who can answer why "certain safeguards and protections were [or were not] put in place."

††††††††††† An evidentiary hearing on a postconviction petition is not required unless the petition alleges facts that, if proven by a preponderance of the evidence, would entitle the petitioner to the requested relief.† Roby II, 547 N.W.2d at 356.† The allegations raised in a petition for postconviction relief must be more than mere assertions without factual support.† Roby II, 547 N.W.2d at 356.† A postconviction court does not abuse its discretion in denying a request for an evidentiary hearing when the petitioner fails to produce any material facts entitling him to a hearing.† See King v. State, 562 N.W.2d 791, 794 (Minn. 1997) (stating evidentiary hearing for postconviction relief not required if no material facts in dispute to determine claim on merits).† A petitioner is entitled to postconviction relief if he establishes:

(1) that the newly discovered evidence was not within petitioner's or his counsel's knowledge before trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce a different or more favorable result.

 

Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (citation omitted).

††††††††††† Here, Russell-Bey alleged no new facts in his postconviction relief petition concerning the prosecutorial misconduct.† He gives no articulable reasons to support his assertion that but for the alleged prosecutorial misconduct, he would have been found not guilty.† The postconviction court addressed these points in its order denying Russell-Bey's petition and did not abuse its discretion in denying Russell-Bey an evidentiary hearing.

††††††††††† Affirmed.



[1]†† State v. Russell, No. C1-98-2214, 1999 WL 595351 (Minn. App. Aug. 10, 1999).