This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Scotty Iverson Floyd, petitioner,


State of Minnesota,


Filed January 28, 2003


Wright, Judge


Hennepin County District Court

File No. 93068705



Scotty Iverson Floyd, FCI-Sandstone, P.O. Box 1000, Sandstone, MN  55072 (pro se appellant)


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


Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Suite 425, Minneapolis, MN  55487 (for respondent)



            Considered and decided by Stoneburner, Presiding Judge, Anderson, Judge, and Wright, Judge.




U N P U B L I S H E D  O P I N I O N




On appeal from the district court’s order denying postconviction relief from his controlled-substance conviction, appellant argues that he received ineffective assistance of trial and appellate counsel.  Appellant also argues that the district court erred by denying his motion for judgment of acquittal and by instructing the jury on constructive possession.  We affirm. 



Police stopped appellant Scotty Floyd for driving without his headlights illuminated on the evening of August 2, 1993.  Floyd failed to produce a valid driver’s license and gave the police several other names before admitting his true name.  Floyd was arrested and transported to the Hennepin County jail in the backseat of the squad car.  On arrival, officers searched the back of the squad car and found 11 individually wrapped pieces of hard white substance later determined to be crack cocaine.  Floyd denied that the drugs were his.  He was charged with one count of controlled substance crime in the second degree, in violation of Minn. Stat. § 152.022, subd. 1(1) (Supp. 1993) (possession with intent to sell three or more grams of crack cocaine), and one count of controlled substance crime in the third degree, in violation of Minn. Stat. § 152.023, subd. 2(1) (Supp. 1993) (possession of three or more grams of crack cocaine). 

At trial, Floyd maintained that he did not place the controlled substance under the backseat of the squad car.  The arresting officer testified, however, that it was his practice to search under the backseat of the squad car at the beginning of every shift and after every arrest in which he transported someone in the backseat.  He testified that he had done so on the evening of August 2 and no illegal substances were found under the backseat prior to Floyd getting in the car.  After the jury returned a verdict of guilty on each count, the district court sentenced Floyd to 48 months’ imprisonment, stayed the execution of the sentence, and ordered Floyd to serve 365 days in a community correctional facility as a condition of his 25-year probationary period.

Floyd appealed his conviction in March 1995, challenging the sufficiency of the evidence supporting the verdict.  The court of appeals affirmed Floyd’s conviction in State v. Floyd, C9-94-2047 (Minn. App. Jul. 25, 1995), review denied (Minn. Sept. 19, 1995). 

In December 1996, Floyd appeared for a probation-violation hearing based on a felony conviction in Ramsey County.  The district court did not revoke Floyd’s probation.  On May 4, 1998, Floyd again appeared for a probation-violation hearing for a felony conviction in United States District Court for the District of Minnesota.  This time, the district court revoked Floyd’s probation and executed his sentence of 48 months with credit for time served.

Floyd filed his first postconviction petition with the district court in December 1998.  In that petition, Floyd challenged (1) the admission of the crack cocaine into evidence at trial based on an illegal stop of his car, (2) the sufficiency of the evidence, (3) the state’s failure to fingerprint the crack cocaine baggie to produce exculpatory evidence, (4) the effectiveness of trial counsel’s assistance, and (5) the district court’s admission of Spreigl evidence.  The district court denied Floyd’s postconviction petition as procedurally barred, because all of these claims either had been raised or could have been raised in his direct appeal.  Floyd subsequently filed with this court a motion for extension of time to file an appeal of the denial of his postconviction relief.  The court of appeals denied Floyd’s motion and dismissed his appeal.  Floyd v. State, No. C7-99-1465 (Minn. App. Sept. 8, 1999) (order). 

Floyd filed a second petition for postconviction relief with the district court in May 2001.  This time, Floyd alleged (1) ineffective assistance of trial counsel, (2) that the district court erred by denying Floyd’s motion for a judgment of acquittal and by instructing the jury on constructive possession, and (3) ineffective assistance of appellate counsel.  On February 6, 2002, the district court denied Floyd’s petition.  This appeal followed.



Absent an abuse of discretion, we will not disturb a postconviction court’s decision.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  A petitioner seeking postconviction relief has the burden of establishing the facts alleged in the petition by a preponderance of the evidence.  Minn. Stat. § 590.04, subd. 3 (2000).  Where a direct appeal has been taken, all issues raised and all claims known but not raised will not be considered upon a subsequent postconviction petition.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  A petitioner may be entitled to relief when the claim is so novel that the legal basis was not available on direct appeal.  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).  Unless a petitioner “deliberately and inexcusably” failed to raise the issues on direct appeal, the court may still consider postconviction claims in the interests of fairness.  Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991).  

The analysis of Floyd’s arguments in this second postconviction petition following direct appeal turns on the determination of two issues:  (1) whether the issue had been or could have been raised on direct appeal, and (2) whether the district court abused its discretion in denying Floyd’s petition.


            Floyd first alleges ineffective assistance of his trial and appellate counsel.  To prevail on his ineffective assistance of counsel claims, Floyd must allege facts that demonstrate (1) “that his counsel’s performance fell below an objective standard of reasonableness” and (2) that there is a reasonable probability that, but for counsel’s errors, the result of the trial or appeal would have been different.  Voorhees v. State, 627 N.W.2d 642, 649 (Minn. 2001) (citation and quotation omitted).  Floyd fails to meet that burden.

A.         Ineffective assistance of trial counsel      

Floyd argues that his trial counsel was ineffective because he failed to (1) conduct pretrial discovery, (2) ask the district court to rule on the merits of the evidence in his suppression motion, and (3) seek removal of the trial judge for bias.  In addition, Floyd raised an issue that the district court rejected in Floyd’s first postconviction petition — the failure of his trial counsel to seek a continuance to obtain the fingerprint evidence from the crack cocaine baggie. 

Each of these claims was known to Floyd at the time of his direct appeal.  These issues are not legally novel.  Floyd’s failure to raise these issues at the time of his direct appeal precludes further postconviction review.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  In addition, because this is Floyd’s second attempt at postconviction relief based on his counsel’s failure to seek a continuance, the district court did not abuse its discretion by denying this claim.  See Minn. Stat. § 590.04, subd. 3 (authorizing court to summarily deny second petition for similar relief).

Even if fairness required this court to consider Floyd’s claim of ineffective assistance of trial counsel, it would fail.  The allegations raised in the petition must be “more than argumentative assertions without factual support.”  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971) (citations omitted).  Floyd did not offer any factual support for his allegation that his attorney’s conduct fell below an objective standard of reasonableness or that the outcome of his trial would have been different.  On the contrary, the record reveals evidence of adequate and vigorous representation by Floyd’s counsel during the trial. 

B.          Ineffective assistance of appellate counsel

            Floyd next argues that he was denied effective assistance of counsel when his appellate attorney failed to raise issues of ineffective assistance of trial counsel and judicial bias.  While this claim could not have been known at the time of his direct appeal, Floyd could have raised this issue in his first postconviction petition.  See Dunn v. State, 578 N.W.2d 351, 352 (Minn. 1998) (claim of ineffective assistance of counsel may not be raised in postconviction petition if petitioner knew of claim at  time of an earlier petition).   The claim, therefore, is procedurally barred.

Floyd’s claim also fails on the merits.  Floyd argues that he is entitled to relief because his appellate counsel refused to raise issues on appeal that Floyd requested.  But an appellate counsel has no duty to include claims which would detract from other more meritorious issues.  Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).  When an appellant and his counsel disagree about which claims should be included, an appellant may address such claims in a pro se supplemental brief.  Id.  Floyd failed to do so on direct appeal.

We conclude that the record supports the decision of Floyd’s appellate counsel to forego raising issues of ineffective assistance of trial counsel and judicial bias on appeal.  As discussed above, Floyd’s claim of ineffective assistance of trial counsel is without merit. 

The record also establishes that Floyd’s claim of judicial bias also fails.  When Floyd’s trial counsel requested a lesser-included-offense instruction during the charge conference, the district court directed the counsel to show how “the evidence would reasonably support a conviction of the lesser degree.”  We conclude that this was proper.  See State v. Leinweber, 303 Minn. 414, 422, 228 N.W.2d 120, 125-26 (1975) (setting test for determining whether lesser offenses instructions should be submitted to jury).  The district court added: “First of all, convict your client for me because that’s what you got to do here.”  When read in its proper context, the district court’s comment is not evidence of bias against Floyd.  The district court’s comment sets out the legal framework for analyzing when a lesser-included-offense instruction is warranted.  The in camera discussion regarding appropriate jury instructions took place outside the presence of the jury.  The discussion was not about Floyd’s guilt or innocence.  Nor does it suggest that the district court had any preconceived notion about Floyd’s guilt.  Appellate counsel did not render ineffective assistance by foregoing these claims on direct appeal.  When it denied postconviction relief based on Floyd’s claims of ineffective assistance of trial and appellate counsel, the district court did not abuse its discretion.


Floyd also argues that the district court erred by (1) denying his motion for a judgment of acquittal based on the insufficiency of the evidence to support a finding of constructive possession and (2) instructing the jury on constructive possession without a legal basis for doing so.  Floyd’s claim that he was wrongfully denied a judgment of acquittal amounts to a second challenge based on the sufficiency of the evidence.  When Floyd challenged the sufficiency of the evidence on direct appeal, we concluded Floyd’s arguments lacked merit and affirmed his conviction.  State v. Floyd, C9-94-2047, 1995 WL 434439, at *2 (Minn. App. July 25, 1995), review denied (Minn. Sept. 19, 1995).  As to the evidence of constructive possession, we specifically stated that “[t]he credibility of the testimony creating this inference of possession was for the jury to determine.”  Id. at *2.   Floyd may not avoid the Knaffla rule by restating the previous challenge to the  sufficiency of the evidence in terms of judicial error.  See Black v. State, 560 N.W.2d 83, 86 (Minn. 1997) (declining to review appellant’s ineffective assistance of counsel claim because it was merely “a recasting of an evidentiary objection, which he knew about at the time of his direct appeal”). 

As to Floyd’s challenge to jury instructions on constructive possession, this issue could have been raised on direct appeal.  Because he failed to do so, we are procedurally barred from reviewing this issue on appeal.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  If reached on the merits, it also fails.  Based on the evidence presented at trial, it was proper to instruct the jury regarding constructive possession.  The constructive possession instruction given is the standard jury instruction set forth in 10A Minnesota Practice, CRIMJIG 20.06 (1994).  Floyd does not claim that the instruction misstated the law.  See State v. Pendelton, 567 N.W.2d 265, 269-70 (Minn. 1997) (finding error when an instruction materially misstates the law).  Nor did he object to the instruction given at trial.  See State v. Cross, 577 N.W.2d 721, 726 (Minn. 1998) (failure to object to instructions before given to jury generally constitutes waiver of right to appeal).  Because Floyd’s challenge to the jury instructions is procedurally barred and without merit, the district court’s denial of relief was a sound exercise of its discretion.