This opinion will be unpublished and

may not be cited except as provided by

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








Alan Darrell Gaines, petitioner,





State of Minnesota,




Filed December 30, 2003


Robert H. Schumacher, Judge

Dissenting, Randall, Judge


Hennepin County District Court

File No. 1030986



Alan D. Gaines, 970 Picket Street North, Bayport, MN 55003 (pro se appellant)


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; 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 Randall, Presiding Judge; Schumacher, Judge; and Shumaker, Judge.




Alan Darrell Gaines appeals from the denial of his petition for postconviction relief, claiming it was error for the trial court to deny him an evidentiary hearing on his ineffective-assistance-of-counsel claim. We affirm.


On April 11, 2001, Minneapolis police executed a search warrant at 2917 Thomas Avenue North, Minneapolis. Gaines was present in the residence when the warrant was executed. In the northeast bedroom the police seized a number of items including a handgun, Gaines's birth certificate, a credit card bill and telephone bill both in Gaines's name, and $35 cash. In other locations within the residence, the police seized marijuana, $7,370 in cash, and four scales. Gaines was charged with one count of being a prohibited person in possession of a firearm in violation of Minn. Stat.  624.713, subds. 1(b), 2, 609.11 (2000).

Defense counsel's theory of the case was that the house was not Gaines's residence, and therefore anything found inside had no connection to him. Defense counsel explained to the jury, during his opening statement, that the case was not about money or narcotics. He further explained that Gaines did not live in the residence and the gun was not found on his person or otherwise in his possession. The home's lessee testified that he was the only person on the lease and the only person with keys to the residence. The lessee further testified that individuals other than Gaines had access to the northeast bedroom and had stayed there on days leading up to the search.

During trial, defense counsel objected to evidence of marijuana seized at the residence. The objection was sustained, and the jury was instructed to disregard testimony regarding the marijuana. The district court twice instructed the jury that evidence of narcotics could not be used to convict Gaines. During the first instance of drug-related testimony, the district court addressed the jury stating that evidence regarding the search would "be received solely to explain the events surrounding the arrest and the alleged discovery of the firearm." Furthermore, the court instructed the jury that it "must not convict the defendant of possession of a firearm based on any allegations about narcotics possession." The district court repeated this instruction during the second instance of drug-related testimony.


This court reviews the denial of a petition for postconviction relief "to determine only whether sufficient evidence exists to support the postconviction court's findings and will not disturb the court's decision absent an abuse of discretion." King v. State, 649 N.W.2d 149, 156 (Minn. 2002). The district court "may dismiss a petition for postconviction relief without conducting an evidentiary hearing if the petition, files, and record 'conclusively show that the petitioner is entitled to no relief.'" Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998) (quoting Minn. Stat. 590.04, subd. 1 (1996)). Conversely, an evidentiary hearing is necessary "whenever material facts are in dispute that . . . must be resolved in order to determine the issues raised on the merits." State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001) (alterations in original) (quotation omitted). "[W]e resolve any doubts about whether an evidentiary hearing is required in favor of the petitioner; yet if the petition, files and record conclusively show that the petitioner is entitled to no relief, we will not require an evidentiary hearing." Patterson v. State, 670 N.W.2d 439, 441 (Minn. 2003).

Claims of ineffective assistance of counsel are reviewed under a two-pronged test of performance and prejudice. Id. at 442 (citing Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987)). Under the performance prong, the appellant has the burden of showing by a preponderance of the evidence that his or her counsel's performance fell below an "objective standard of reasonableness." Id. "In Minnesota, an attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances." State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted).

Gaines argues his trial counsel was ineffective because he did not object to all drug-related evidence, move for mistrial based on the prosecution's discussion of drug-related evidence, move for a limiting instruction regarding the drug-related evidence at the time the jury received its final charge, and interview and call potential exculpatory witnesses. But trial counsel has broad discretion to determine trial tactics, including decisions to object, to move for mistrial, and to move for cautionary jury instructions. State v. Vick, 632 N.W.2d 676, 689-90 (Minn. 2001) (objections); Doppler, 590 N.W.2d at 635 (jury instructions); State v. Strodtman, 399 N.W.2d 610, 616 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987) (mistrial). Trial counsel also has broad discretion regarding what information to present to the jury and the extent of pretrial investigation. State v. Lahue, 585 N.W.2d 785, 789-90 (Minn. 1999). "Appellate courts, which have the benefit of hindsight, do not review for competency matters of trial strategy." Doppler, 590 N.W.2d at 633. Under the performance prong, allegations of failures in trial strategy, even if true, are not questions of material fact that if proven would constitute ineffective assistance. As such, the post-conviction court was not required to grant Gaines an evidentiary hearing.

This court "need not address both the performance and prejudice prongs if one is determinative." Patterson, 670 N.W.2d 439, 442. In this case, the performance prong is determinative.



RANDALL, Judge (dissenting).

I respectfully dissent. The majority concludes that the alleged errors committed by Gaines's trial counsel constitute "strategy decisions and trial tactics," which trial counsel are entitled to make, and do not, therefore, warrant an evidentiary hearing. I disagree, and conclude that Gaines is at least entitled to an evidentiary hearing. I find he articulated enough facts, (backed by a competent and strong supporting affidavit) that, if believed, could lead to relief. See Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (evidentiary hearing not required unless facts are alleged which, if proven, would entitle petitioner to relief).

Gaines did more than generally allege incompetence on the part of his trial counsel. See Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) ("generalized allegations of incompetence [of counsel] are not reason for an evidentiary hearing."). Gaines alleged facts that, if believed, could affirmatively prove that his trial counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that, but for the errors, the result of the proceeding could have been different. Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

In his petition, Gaines alleged specific instances of incompetence. It is of particular importance that Gaines sought out and received the supporting affidavit of a competent criminal defense attorney. The affidavit of attorney Jon P. Erickson corroborated the factual allegations of incompetence Gaines made in his petition for postconviction relief. Erickson has been a practicing lawyer since 1973. Erickson is a board-certified criminal trial expert and has experience in ineffective assistance of counsel issues. Erickson is a member of numerous professional organizations and has spent most of his career working in the area of criminal law.

Erickson's affidavit specifically points to trial counsel's failure to move for the exclusion of drug-related evidence, object to a references to drug-related evidence made by the prosecutor and witnesses, move for a mistrial, request for a limiting instruction in regards to the drug-related evidence, and interview and call potential exculpatory witnesses. Erickson concluded that, under the circumstances, any reasonably attorney would have made these objections and motions and that he could "not discern or imagine any reasonable strategy that would justify" trial counsel's failure to do so. He found that "the representation Mr. Gaines received by his trial counsel generally fell below an objective standard of reasonableness," and that "Mr. Gaines's trial counsel did not exercise the customary skills and diligence that a reasonably competent criminal defense attorney would have exercised under the circumstances." Erickson also concluded that "there is a reasonable probability that, but for Mr. Gaines's counsel's unprofessional errors, the result of the proceeding would have been different." Like Erickson, I cannot discern why an attorney would fail to make these basic objections and motions regarding statements and evidence that, arguably, are irrelevant and prejudicial, because of "a trial tactic strategy."

The law is simple. An evidentiary hearing is warranted if petitioner shows enough facts that, if proven, could lead to relief. See State ex rel. Roy v. Tahash, 277 Minn. 238, 245, 152 N.W.2d 301, 306 (1967); Fratzke, 450 N.W.2d at 102; Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995); State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001). Because of the precise nature of Gaines's factual allegations, and most importantly, Erickson's affidavit in support of his allegations, Gaines has met this legal standard. I would reverse the district court's denial of postconviction relief and remand to the district court for a full evidentiary hearing on appellant's arguments.

My dissent is neither a reversal on the merits nor an advisory opinion on what the district court should end up doing. It is simply a straightforward statement that appellant, Gaines, has met the standard to at least entitle him to an evidentiary hearing on his petition for relief. Nothing is lost to the district court or the prosecution by giving Gaines an evidentiary hearing. On the other hand, the down side, of constitutional magnitude, is that a criminal defendant will not get a full and fair hearing within an objective forum. Gaines may or may not be entitled to ultimate relief. But Gaines is entitled, on this record, to an evidentiary hearing on his issue.