This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-02-1100

 

Odis Trehorn Jones, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed May 6, 2003

Affirmed
Klaphake, Judge

 

St. Louis County District Court

File No. K399600355

 

Odis Trehorn Jones, OID #204206, MCF-Stillwater, 970 Pickett Street North, Bayport, MN† 55003-1490 (pro se appellant)

 

Mike Hatch, Attorney General, Kelly OíNeill Moller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103; and

 

Alan Mitchell, St. Louis County Attorney, St. Louis County Government Center, 100 North 5th Avenue West, #501, Duluth, MN† 55802 (for respondent)

 

††††††††††† Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D†† O P I N I O N

KLAPHAKE, Judge

††††††††††† Appellant Odis Trehorn Jones petitioned for postconviction relief following an unsuccessful direct appeal.† State v. Jones, 2000 WL 1847636 (Minn. App. Dec. 19, 2000), review denied (Minn. Feb. 21, 2001).† In his direct appeal, appellant raised issues of insufficiency of the evidence relating to eyewitness identification and failure to establish a chain of custody for the drug evidence.† Appellant filed a pro se brief as well, contesting the district courtís credibility determinations and raising two sentencing issues.

††††††††††† In this pro se petition for postconviction relief, appellant requested an evidentiary hearing and alleged ineffective assistance of trial and appellate counsel, a Brady violation, and bad faith on the part of the police.† The district court denied both the request for an evidentiary hearing and the postconviction relief.† Because appellant raises matters known at the time of the direct appeal and fails to demonstrate that either trial or appellate counselís performance fell below an objective standard, we affirm.† Because the files and records in this matter conclusively show that appellant would not be entitled to relief, we also affirm the denial of an evidentiary hearing.

D E C I S I O N

††††††††††† This court reviews a postconviction proceeding to determine whether there is sufficient evidence to support the postconviction courtís findings and whether the postconviction court abused its discretion.† Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn. 2002).† The petitioner has the burden of proving the facts alleged in the petition by a fair preponderance of the evidence.† Minn. Stat. ß 590.04, subd. 3 (2002); Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).†

††††††††††† Where, as here, there has been a direct appeal, matters raised or known at that time are procedurally barred from postconviction review.† Sanders, 628 N.W.2d at 600; State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).†

The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not deliberately and inexcusably fail to raise on direct appeal.

 

Sanders, 628 N.W.2d at 600 (quotation omitted).† Although ineffective assistance of counsel claims are at times more appropriately brought in a postconviction proceeding, this is generally when additional fact-finding is necessary to explain counselís decisions.† See Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).†

††††††††††† To show ineffective assistance of counsel, a party must demonstrate that (1) counselís representation fell below an objective standard of reasonableness; and (2) a reasonable probability exists that the trial outcome would have been different, but for counselís errors.† State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998).† There is a strong presumption that counselís performance fell within the wide range of reasonable conduct.† Id.† A reviewing court will not intervene in matters related to trial tactics or strategy, such as ď[w]hich witnesses to call at trial and what information to present to the jury.Ē† Id.

††††††††††† Here, trial counsel investigated the Brady allegation and stated on the record that having discussed the matter with her client, she decided not to call the officer to testify.† She cross-examined the stateís witnesses about the handling of the drug evidence and argued in closing that their testimony lacked credibility because of the mishandling of the evidence.† Thus, all of the issues raised by appellant, including trial counselís handling of those issues, were known at the time of the direct appeal, and therefore barred in this postconviction proceeding.

††††††††††† Appellantís claim of ineffective assistance of appellate counsel is predicated on counselís failure to raise an ineffective assistance of counsel claim against trial counsel.† Generally, in such a case, if the original ineffective assistance of trial counsel claim fails, so does the claim against appellate counsel.† See Sanders, 628 N.W.2d at 602.† Again, appellant must show that appellate counselís performance fell below an objective standard of reasonableness and that he was prejudiced as a result.† Id. at 603.† To demonstrate prejudice, he must show that there is a reasonable probability that, but for appellate counselís errors, the appeal result would have been different.† See Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).†

††††††††††† Here, appellate counsel raised three meritorious issues, including an insufficiency of the evidence claim.† A failure to raise other issues, particularly those with a limited chance of success, belongs to the area of strategy and tactics where counsel is afforded great discretion.† Black, 560 N.W.2d at 86 (ďWhen an appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues.Ē).†

††††††††††† Appellant also challenges the denial of his motion for an evidentiary hearing on his postconviction petition.† The court must hold a hearing ď[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.Ē† Minn. Stat. ß 590.04, subd. 1 (2002).† Here, the postconviction court held that on the record before it, appellant was not entitled to relief because his claims were either procedurally barred or alleged matters relating to trial tactics and strategy, an area where the reviewing court will not second-guess trial counsel.†

††††††††††† A hearing must be held only if it is necessary to develop facts to support the petitionerís claim for relief.† Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997).† Appellantís allegations depend on facts already developed in the record.† Thus, an evidentiary hearing would serve no purpose and the postconviction courtís denial of a hearing was not an abuse of discretion.

††††††††††† Based on the record before us, the district court did not abuse its discretion by denying appellant an evidentiary hearing or postconviction relief.

††††††††††† Affirmed.