This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Frank Edward Johnson, petitioner,
Filed January 17, 2006
Olmsted County District Court
File No. K2-02-3562
Frank Edward Johnson, MCF -
Mike Hatch, Attorney General,
1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Raymond F. Schmitz, Olmsted
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
Pro se appellant challenges the denial of his petition for postconviction relief. Because appellant either raised or could have raised on direct appeal all of his claims except for his claim of ineffective assistance of appellate counsel, and because that claim lacks merit, we affirm.
In November 2002, appellant Frank
Johnson was convicted of fifth-degree assault, third-degree criminal sexual
conduct, and first-degree burglary.
Johnson appealed, and this court reversed the conviction of first-degree
burglary and affirmed the remaining convictions. State
v. Johnson, 679 N.W.2d 378, 389 (Minn. App. 2004), review denied (
We review a postconviction court’s
denial of relief for an abuse of discretion.
Quick v. State, 692 N.W.2d
438, 439 (
In his appeal from the denial of his petition for
postconviction relief, Johnson raises several claims that he either already raised
or could have raised in his direct appeal.
A postconviction court 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
Here, Johnson raises several claims that he already argued on direct appeal, including ineffective assistance of trial counsel, prosecutorial misconduct, and insufficient evidence to support his conviction of third-degree criminal sexual conduct. Because these claims were raised on direct appeal, either in the brief submitted by Johnson’s appellate counsel or in Johnson’s pro se supplemental brief, and because this court has already reviewed and decided these claims, Johnson, 679 N.W.2d at 387, 389, the postconviction court did not abuse its discretion by summarily denying relief on these claims.
Johnson also raises several claims that he failed to raise on direct appeal but that were known, or should have been known, to him at that time. These include (1) a claim that the warrant for Johnson’s arrest was insufficient because there was no “affidavit of oath” attached to the warrant or, in the alternative, that Johnson was arrested without a warrant, (2) a claim that the police failed to give Johnson a Miranda warning, (3) a claim that Johnson’s due-process rights were violated because he was not indicted by a grand jury, (4) a claim that the district court lacked personal or subject-matter jurisdiction, and (5) a claim that the district court wrongly failed to dismiss several jurors for cause. None of these claims presents a novel legal issue, and Johnson does not argue that they should be reviewed in the interest of justice. But for the sake of completeness, we nevertheless will consider each of Johnson’s claims to the extent that the record allows.
two of Johnson’s claims are not susceptible of appellate review: Johnson argues that he was not given a Miranda warning and that the warrant for
his arrest was insufficient because it did not have an “affidavit of oath”
attached or, in the alternative, that he was arrested without a warrant. These claims involve questions of fact, and because
Johnson did not raise them in an omnibus hearing, the state has not had the
opportunity to present evidence on these issues. We do not address on appeal issues that involve
undeveloped questions of fact. See, e.g., State v. Lieberg, 553 N.W.2d 51, 56 (
remaining claims lack merit. Johnson
argues that his due-process rights were violated because he was not indicted by
a grand jury. In
Johnson also argues that the
district court lacked personal or subject-matter jurisdiction in this
matter. Whether a district court
has jurisdiction is a question of law, which this court reviews de novo. Johnson v.
Johnson argues that the district court erred by failing to dismiss for causeseven people from the jury pool because of
bias. When juror bias is alleged,
reviewing courts have traditionally followed a three-part analysis that
requires an appellant to show that (1) the juror in question was subject to
challenge for cause, (2) actual prejudice resulted from the failure to dismiss,
and (3) the appellant made the appropriate objection in the district court. State v.
Stufflebean, 329 N.W.2d 314, 317 (
Johnson argues that seven prospective jurors were biased because they either had
an acquaintance or relative who had been sexually assaulted or worked with or
knew someone who worked with victims of sexual assault. None of these reasons alone is a ground for a
challenge for cause. See Minn. R. Crim. P. 26.02, subd.
5. And the record shows that either the
district court or the attorneys questioned these seven prospective jurors and that
the district court was satisfied, despite Johnson’s motions to strike two of
them for cause, that each could try the case impartially and without prejudice. We defer to the district court’s credibility
determinations. Johnson, therefore,
fails to show that these seven prospective jurors were subject to challenge for
cause. In addition, Johnson does not show
how actual prejudice resulted from the failure to dismiss the seven prospective
jurors, of whom six were empanelled and one was dismissed by Johnson using a
peremptory strike, and
The postconviction court did not abuse its discretion by summarily denying relief to Johnson on the above claims.
argues that he was denied effective assistance of appellate counsel in his
direct appeal. A postconviction decision
regarding a claim of ineffective assistance of counsel involves mixed questions
of fact and law and, therefore, is reviewed de novo. Opsahl
v. State, 677 N.W.2d 414, 420 (
Johnson argues that he was denied effective assistance of appellate counsel because his counsel failed to secure the reversal of his convictions and failed to order a transcript of the voir dire until after the time for direct appeal had expired. The failure of Johnson’s appellate counsel to secure a reversal of all of Johnson’s convictions is not ineffective assistance of counsel. And Johnson’s appellate counsel did succeed in obtaining the reversal of one of Johnson’s three convictions. Johnson, 679 N.W.2d at 389. Also, it was not ineffective assistance for Johnson’s appellate counsel to choose not to pursue claims based on the voir dire, and therefore to not request the voir dire transcript, and instead to pursue what were in counsel’s judgment more meritorious claims. In addition, because Johnson’s claims of juror bias lack merit, Johnson is unable to show how the lack of the transcript of the voir dire prejudiced him on direct appeal. Because Johnson fails to show that his appellate counsel’s performance was objectively unreasonable or that it prejudiced Johnson, we conclude that the postconviction court did not err by denying Johnson relief on the claim that he was denied effective assistance of appellate counsel.