This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Lovell N. Oates, petitioner,
State of Minnesota,
Filed August 12, 2003
Hennepin County District Court
File No. 98124740
Darrell E. Graham, Gray, Graham, LLP, P.O. Box 35008, St. Louis, MO 63135 (for 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, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.
Appellant challenges the summary denial of his petition for postconviction relief. Because the issues now raised by appellant were either waived, or known but not raised at the time of his direct appeal, or are otherwise lack merit, we affirm.
Appellant Lovell Oates was indicted on charges of first-degree murder, attempted first-degree murder, and four counts of second-degree assault stemming from a 1998 shooting incident. Respondent State of Minnesota (the state) attempted to establish appellant’s intent and premeditation to commit first-degree murder through the testimony of Rickey Fuller. Because appellant’s trial counsel had previously represented Fuller in unrelated proceedings, the state moved to disqualify him. The district court denied the motion but ordered that appellant’s counsel associate with a second attorney to “perform all matters associated with * * * Fuller including any cross and/or direct examination.” Appellant formally waived on the record both his right to raise a conflict of interest claim on appeal and his right to a claim of ineffective assistance of counsel based on the second attorney’s examination of Fuller.
Appellant was convicted of second-degree murder and four counts of second-degree assault; this court affirmed his conviction on direct appeal. State v. Oates, 611 N.W.2d 580, 584-87 (Minn. App. 2000), review denied (Minn. 22 Aug. 2000).
In his petition for postconviction relief, appellant argued that (1) he was denied effective assistance of trial and appellate counsel, (2) the prosecutor committed misconduct, and (3) the district court improperly communicated with the jury and failed to inquire into trial counsel’s prior representation of two Spreigl witnesses. He also requested an evidentiary hearing. The postconviction court summarily denied appellant’s requested relief without an evidentiary hearing. This appeal followed.
“The decisions of a postconviction court will not be disturbed unless the court abused its discretion.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). Where there has been a direct appeal, claims known at the time of the direct appeal will not be considered on petition for postconviction relief. Id. at 254-55.
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 v. State, 628 N.W.2d 597, 600 (Minn. 2001) (quotation and citation omitted).
Appellant argues that the state allowed Fuller to testify falsely and failed to disclose certain evidence and that the district court improperly communicated with the jury and failed to inquire into trial counsel’s prior representation of two Spreigl witnesses. These claims are not novel, and appellant offers no explanation as to why they were not raised on direct appeal. Because the claims were known at the time of appellant’s direct appeal, they are procedurally barred now.
Appellant contends that he was denied effective assistance of trial counsel because counsel had an actual conflict of interest, failed to vigorously cross-examine Fuller, and did not investigate specific evidence or call certain witnesses. Ineffective assistance of counsel claims that were known on direct appeal are generally barred from postconviction review, “except where the claim requires additional fact-finding by the court.” Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003). Exceptions also exist when the claim is so novel that it can be said that its legal basis was not reasonably available at the time of direct appeal and when the interests of justice so require. Id. Appellant’s ineffective assistance of trial counsel claim can be evaluated solely on the record, and no additional fact-finding is required. Nor are the issues so novel that their legal bases were not reasonably available at the time of direct appeal. Finally, the interests of justice do not establish a basis for relief. Therefore, appellant’s claim is procedurally barred from postconviction review because it was known but not raised at the time of his direct appeal.
Even if the ineffective assistance of trial claim were not procedurally barred, it would fail substantively. Appellant failed to allege sufficient facts to support the claim. A claim for ineffective assistance of counsel must show that counsel’s representation “fell below an objective standard of reasonableness” and that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (citation omitted). There is a strong presumption that an attorney’s performance falls within the wide range of reasonable conduct. Id. Here, this court has already noted that the evidence of appellant’s guilt was “quite strong” and included two firm eyewitness identifications, corroborating evidence found at appellant’s home, and Fuller’s testimony. Oates, 611 N.W.2d at 586. Thus, there is no reasonable probability that, but for trial counsel’s alleged errors, the outcome of appellant’s trial would have been different. The postconviction court did not abuse its discretion in denying relief based on ineffective assistance of trial counsel.
Appellant also argues that he was denied the effective assistance of appellate counsel. To establish ineffective assistance of appellate counsel, an appellant must show that counsel’s performance fell below an objective standard of reasonableness and that the outcome of the appeal would have been different but for appellate counsel’s error. Ives, 655 N.W.2d at 637. Appellant’s claim is predicated on counsel’s failure to raise an ineffective assistance of trial counsel claim. Because appellant has not established the underlying ineffective assistance of trial counsel claim, he cannot show that the alleged error would have changed the outcome of his appeal. Accordingly, the postconviction court did not abuse its discretion by denying postconviction relief based on appellant’s ineffective assistance of appellate counsel claim.
Finally, appellant argues that the postconviction court abused its discretion by not granting an evidentiary hearing. An evidentiary hearing is not required if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2002); see also Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997) (evidentiary hearing required only if necessary to develop facts to support petitioner’s claim for relief). Appellant’s claims were either procedurally barred or lacked merit, and his allegations depend on facts already developed in the record. Accordingly, we conclude that the postconviction court did not abuse its discretion by denying appellant’s request for an evidentiary hearing.
 Moreover, appellant unequivocally waived any claim of conflict of interest relating to trial counsel’s prior representation of Fuller, and particular deference is given to trial counsel on matters of trial tactics and strategy. See State v. Lahue, 585 N.W.2d 785, 789 (Minn. 1998) (particular deference given to counsel regarding trial strategy, and questions such as “[w]hich witnesses to call at trial or what information to present to the jury” lie within trial counsel’s discretion) (quotation and citation omitted)).