This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Phillip Knox, petitioner,


State of Minnesota,


Filed February 22, 2005


Stoneburner, Judge


Stearns County District Court

File No. K9014373


Phillip Michael Knox, MCF – Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)


Mike Hatch, Attorney General, Suite 1800, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Room 448, Administration Center, 705 Courthouse Square, St. Cloud, MN 56303-4701 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Klaphake, Judge; and Harten, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant Phillip Knox challenges denial of his petition for postconviction relief arguing that (1) the evidence was insufficient to support his conviction of second-degree unintentional murder; (2) he was denied the effective assistance of counsel; and (3) he was entitled to an evidentiary hearing on his petition.  We affirm.



On direct appeal from this conviction of second-degree unintentional murder, appellant argued that the state failed to prove beyond a reasonable doubt that he did not act in self-defense, the evidence was insufficient to support the conviction of second-degree intentional murder, and his right to due process was violated when the district court denied his request to instruct the jury on a potential “third verdict” of a hung jury.  This court affirmed the conviction, and the supreme court denied review.  State v. Knox,2003 WL 2524806, * 2 (Minn. App.), review denied (Minn. Sept. 16, 2003).

Appellant then petitioned for postconviction relief, arguing ineffective assistance of counsel and insufficient evidence to support the conviction of murder in the second degree.  The district court denied the petition without an evidentiary hearing.  This appeal followed.


This court reviews a district court’s decision on postconviction matters under an abuse-of-discretion standard.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  The district court’s findings of fact are reviewed under the clearly erroneous standard, but legal conclusions of the district court are reviewed independently.  State v. Wiernasz, 584 N.W.2d 1, 3 (Minn. 1998).  Minn. Stat. § 590.04, subd. 3 (2002), requires that “[u]nless otherwise ordered by the court, the burden of proof of the facts alleged in the petition shall be upon the petitioner to establish the facts by a fair preponderance of the evidence.”  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).

I.          Sufficiency of the evidence

Because appellant challenged the sufficiency of the evidence to support his conviction in his direct appeal, he is procedurally barred from relitigating this claim.  State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976) (holding that where direct appeal has been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon subsequent petition for postconviction relief”).  Minn. Stat. § 590.04, subd. 3, provides that “[t]he court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.”  The district court did not abuse its discretion by denying the claim of insufficient evidence without an evidentiary hearing.  

II.        Ineffective assistance of counsel

Appellant raised a claim of ineffective assistance of counsel for the first time in his postconviction petition.  Minnesota applies the Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), two-pronged test to ineffective-assistance-of-counsel claims.  Dukes v. State, 660 N.W.2d 804, 810 (Minn. 2003).  The test requires that the defendant must show, by a preponderance of the evidence that (1) his counsel’s representation fell below an “objective standard of reasonableness” and (2) that but for counsel’s error, the result of the proceeding would have been different.  Dukes, 621 N.W.2d at 253.

Generally, ineffective-assistance-of-counsel claims must be brought during the direct appeal if they were known at the time of the appeal.  Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003).  An exception to the rule occurs when the claim is “so novel that it can be said that its legal basis was not reasonably available at the time the direct appeal was taken and decided[,] . . . where the interests of justice require relief” or when additional facts are needed to fairly address a claim of ineffective assistance of counsel.  Id. (quotation omitted).  See also State v. Zernechel, 304 N.W.2d 365, 367 (Minn. 1981)(recognizing that claim for ineffective assistance in a postconviction appeal, instead of a direct appeal, provides more fully developed record). 

Appellant asserts that his trial attorney “failed to investigate and obtain the Official Medical Records from the Veteran’s Hospital showing that Appellant suffered from a debilitating back ailment which made it difficult for him to retreat from the assault being rendered by the deceased. . . .”  These medical records were all dated between 1997 and September 2001.  The district court did not err by concluding that further fact-finding was unnecessary, and appellant’s failure to address this issue in his direct appeal barred consideration in a postconviction petition.  Appellant testified about his back condition and its effect on him at trial.  Appellant has failed to offer any argument that his attorney acted below an objective standard of reasonableness by not offering the medical records and has not shown that the outcome of the trial would have been affected by introduction of those records.  Deference is given to defense attorneys in trial strategy as long as the strategy is reasonable.  Ives, 655 N.W.2d at 636. 

We reject as without merit appellant’s argument that the interests of justice require review of these issues despite the procedural bar of Knaffla to consideration of the claims raised in his petition for postconviction relief.