This opinion will be unpublished and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

C4-00-1849

 

 

Leon H. Carter, III, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 19, 2001

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 95040246

 

 

Leon H. Carter, III, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106; and

 

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

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Anderson, Judge, and Foley, Judge.*

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

A jury convicted Leon Carter in October 1995 of second-degree murder in violation of Minn. Stat. ß 609.19 (1), (2) (1994).† In September 1996, this court affirmed Carterís conviction and sentence.† See State v. Carter, No. C9-69-51, 1996 WL 495027 (Minn. App. Sept. 3, 1996), review denied (Minn. Oct. 29, 1996).† In November 1997, the United States District Court denied Carterís application for a writ of habeas corpus.

Carter filed a petition for postconviction relief in October 2000, alleging he was denied his right to effective assistance of trial and appellate counsel.† The district court denied the petition without a hearing and also denied Carterís request for additional discovery and a state-funded investigator.† We agree with the district courtís analysis that Carterís claims for postconviction relief fail because they were, in part, raised and rejected in the direct appeal; in part, known at the time of the direct appeal and thus cannot be raised belatedly; and, in part, without merit.† We affirm.†

FACTS

††††††††††† In his direct appeal, Carter challenged the district courtís evidentiary rulings, jury instructions, and sentencing.† He also contended that he was ineffectively assisted by trial counsel and that the evidence was insufficient to support his conviction.† This court addressed each of Carterís contentions and affirmed Carterís conviction and sentence.† The supreme court denied review.

††††††††††† In his application to the federal district court for a writ of habeas corpus, Carter again challenged the state trial courtís evidentiary rulings and the sufficiency of the evidence and alleged that his counselís representation at trial was inadequate and his sentence was disproportionate to the offense and not supported by aggravating factors.† Carterís application was denied.

In his petition for postconviction relief, Carter asserted claims for ineffective assistance of trial and appellate counsel and sought discovery of ballistic reports and authorization for investigative expenditures.† The postconviction court denied Carterís petition for relief and his additional requests.† On appeal, Carter argues the district court abused its discretion in concluding, without an evidentiary hearing, that his ineffective-assistance-of-counsel claims were procedurally barred and lacked merit.† Carter also challenges the postconviction courtís denial of his motion to discover ballistic reports and his motion for a state-funded investigator.

D E C I S I O N

††††††††††† A petitioner seeking postconviction relief must establish by a fair preponderance of the evidence facts that warrant reopening a case.† State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).† The scope of appellate review is limited to whether the record contains sufficient evidence to sustain the postconviction courtís findings.† State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999).† The postconviction courtís decision will not be reversed absent an abuse of discretion.† Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

††††††††††† I.††††††††† Ineffective-assistance-of-trial-counsel claim

Claims raised on a direct appeal and claims known but not raised will not be considered on a subsequent petition for postconviction relief unless the claims (a) are so novel that their legal basis was not reasonably available to counsel at the time the direct appeal was taken or (b) are ones the petitioner did not deliberately and inexcusably fail to raise on appeal and fairness requires that they be considered.† Id.† Carter raised his ineffective-assistance-of-trial-counsel claim on direct appeal and has not established that his claim is novel or that fairness requires that it be considered again.† The postconviction court thus did not abuse its discretion in concluding that the claim was procedurally barred.

II.†††††††† Ineffective-assistance-of-appellate-counsel claim

Carter next argues the postconviction court abused its discretion in denying his ineffective-assistance-of-appellate-counsel claim.† Carter claims that his appellate counsel performed deficiently by refusing to raise an ineffective-assistance-of-trial-counsel claim and failing to seek postconviction relief.† Carterís argument lacks merit.

††††††††††† To prevail on a claim of ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence both that his counselís performance (a) was so deficient that it fell below an objective standard of reasonableness and (b) so prejudiced him that a different outcome would have resulted but for counselís error.† Id. at 254.† Carter has not shown that counselís performance was deficient or that it prejudiced him.

Carterís appellate counsel investigated, considered, and rejected Carterís ineffective-assistance-of-trial-counsel claim.† Appellate counsel then informed Carter in writing that she did not intend to raise the claim on appeal and that he was free to raise it himself in a pro se supplemental brief.† She also advised Carter that she would not dismiss the appeal in favor of postconviction proceedings because there was no basis for postconviction proceedings.† Counselís performance was not deficient in any respect.† She was not obligated to advance every argument Carter urged regardless of its merit.† Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) (the right to effective assistance of appellate counsel ďdoes not require an attorney to advance every conceivable argument on appealĒ).† She evaluated the case and made a professional judgment that raising non-meritorious claims would detract from other meritorious claims.† See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (recognizing that when counsel and appellant disagree about what claims should be raised on appeal, counsel ďhas no duty to include claims which would detract from other * * * meritorious issuesĒ).† We will not second-guess counselís reasonable professional judgments or impose on counsel a duty to raise every colorable claim a client proposes.† See Jones v. Barnes, 463 U.S. 745, 751-55, 103 S. Ct. 3308, 3312-14 (1983) (rejecting a per se rule that the client, rather than the attorney, must be allowed to decide what issues should be raised).

††††††††††† Further, Carter has not established that but for counselís decision not to challenge trial counselís performance the outcome on appeal would have been different.† In Carterís direct appeal, this court rejected Carterís ineffective-assistance-of-trial-counsel claim, reasoning that Carter had made ďonly cursory allegations of error with little explanation or factual supportĒ and had ďoverlook[ed] the numerous, skillful cross-examinations performed at trial and * * * counselís performance during opening and closing statements.Ē† Carter, 1996 WL 495027, at *2.† This court concluded that ďwith the overwhelming evidence of guilt [in the record], [Carter] ha[d] not proven that, but for counselís errors, the result of the trial would have been different.Ē† Id.† Thus, even if Carterís appellate counsel had raised an ineffective-assistance-of-trial-counsel claim on appeal, it is unlikely the result would have been different.† Accordingly, the district court did not abuse its discretion in concluding that Carterís ineffective-assistance-of-appellate-counsel claim lacked merit.

III.†††††† Claim for discovery and for a state-funded investigator

††††††††††† Carter argues the postconviction court abused its discretion in denying his request for discovery and for a state-funded investigator.†† We disagree.† The postconviction court correctly concluded that ď[d]iscovery in this case is closedĒ and that Carter ďhas not shown good cause to reopen discovery.Ē† Carter had the opportunity to request the ballistic reports before or during trial.† The evidence of his guilt is overwhelming and Carter failed to introduce evidence that the ballistic reports would have changed the result of the proceedings.† The postconviction court did not, therefore, abuse its discretion in denying his discovery motion.

IV.              Request for an evidentiary hearing

Finally, Carter argues the postconviction court abused its discretion in denying his request for an evidentiary hearing.† But no evidentiary hearing is required when ďthe petition [for postconviction relief] and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief.Ē† Minn. Stat. ß 590.04, subd. 1 (2000).† To obtain an evidentiary hearing, a petitioner must allege facts that would entitle him to the requested relief if proven.† Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997).† Carter has asserted no facts that would entitle him to relief if proven.† Thus, even if his claims were not precluded, they do not warrant an evidentiary hearing.

Affirmed.

 



*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.