This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed May 2, 2006
Toussaint, Chief Judge
Mike Hatch, Attorney General, 1800 Bremer 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)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant James D. Pilot challenges the district court’s summary denial of his November 2004 petition for postconviction relief, in which he requested reversal of his sexual-assault conviction on the grounds that a recently discovered police report proved that he had received ineffective assistance of trial and appellate counsel. Because the district court did not abuse its discretion by denying appellant’s petition, we affirm.
postconviction relief are collateral attacks on judgments, which carry a
presumption of regularity and, therefore, cannot be lightly set aside. Pederson
v. State, 649 N.W.2d 161, 163 (
State v. Knaffla held that “where direct
appeal has once been taken, all matters raised therein, and all claims known
but not raised, will not be considered upon a subsequent petition for
postconviction relief.” 309
Here, appellant contends that his trial counsel ineffectively represented him by failing to impeach the victim’s mother with a police report that appellant claims to have recently discovered. He argues that his appellate counsel inadequately served him by failing to raise the issue on appeal. We conclude appellant’s claim is barred and did not require additional fact-finding.
claim is barred under Knaffla by his
failure to raise the police-report issue on direct appeal or in a previous
petition for postconviction relief. It is undisputed that the police report on
which appellant based the ineffective-assistance claim was in his counsel’s
possession at opening argument.
Appellant knew or should have known about the report at trial, and his
failure to raise the issue in his first appeal or in a previous postconviction
petition precludes him from doing so now.
See Knaffla, 309
Second, appellant’s ineffective-assistance claim is based solely on his counsel’s strategic decision not to impeach a witness; that decision is not subject to appellate review for competency. See Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (stating that appellate courts generally will not review claims of ineffective assistance of counsel based on trial strategy); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (observing that strategic questions such as “[w]hich witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel”). Appellant’s challenge to his counsel’s strategic decisions does not require additional fact finding and is therefore procedurally barred under Knaffla. Compare Dukes, 621 N.W.2d at 255 (concluding claim was not Knaffla-barred when evidentiary hearing was required to establish whether appellant had consented to attorney's decision to concede appellant's guilt), with Robinson v. State, 567 N.W.2d 491, 494-95 (Minn. 1997) (concluding that all but two of petitioner's ineffective-assistance-of-counsel claims were Knaffla-barred because claims involved issues of trial strategy, while claims involving client-attorney communication required evidentiary hearing).
Finally, as to
Pilot’s claim of ineffective assistance of appellate counsel, the supreme court
has held that when a claim of ineffective assistance of trial counsel has no legal
merit, an appellant may not base a claim of ineffectiveness of appellate
counsel on the failure to raise the claim. Sutherin
v. State, 574 N.W.2d 428, 435 (
 In June
1999, the Minnesota Supreme Court affirmed appellant’s convictions of first-degree
criminal sexual conduct and attempted first-degree murder on direct
review. State v. Pilot, 595 N.W.2d 511, 513 (