This opinion will be unpublished and

may not be cited except as provided by

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






Alfonso Rodriguez, Jr., petitioner,


State of Minnesota,


Filed September 5, 2006


Parker, Judge*


Polk County District Court

File No. K5-80-6192


Robert G. Hoy, Ohnstad Twichell, P.C., 901 13th Avenue East, P.O. Box 458, West Fargo, ND  58078-0458 (for appellant)


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


Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney, 223 East Seventh Street, Suite 101, Crookston, MN  56716 (for respondent)


            Considered and decided by Minge, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Alfonso Rodriguez, Jr. challenges the district court’s denial of his petition for postconviction relief, arguing that the district court erred in failing to apply State v. Mack, 292 N.W.2d 764, 772 (Minn. 1980), and that his trial and appellate counsel were ineffective.  We affirm.


            Petitions for 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 (Minn. 2002).  This court will not disturb the decision of a postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.”  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). 

            Appellant claims that the district court erred in denying his postconviction petition by failing to address the application of State v. Mack, 292 N.W.2d 764, 772 (Minn. 1980).  After his conviction for first-degree assault and attempted kidnapping in 1980, appellant filed a petition for postconviction relief in 1982.  The district court denied his petition for postconviction relief after thoroughly discussing the application of Mack and concluding that the previously hypnotized victim could testify about statements, portrait sketches, and the photographic line-up identifications she had made prior to hypnosis.  Upon appeal, this court affirmed the district court’s denial of the petition for postconviction relief.  Rodriguez v. State, 345 N.W.2d 781 (Minn. App. 1984), review denied (Minn. May 15, 1984).[1]  We explained that Mack excludes “only those recollections that are recalled for the first time during the hypnosis.”  Id. at 785.  We concluded that the victim’s description of her assailant under hypnosis did not significantly differ from her prehypnotic descriptions and that the district court properly excluded testimony concerning new recollections produced by the hypnosis.  Id. at 785-86.

            A postconviction petitioner who has raised claims in previous postconviction petitions is procedurally barred from bringing claims raised or that could have been raised in the previous petitions.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (applying rule from State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), to situation in which petitioner did not raise issues in his previous petitions for postconviction relief).  Only when a claim is so novel that it can be said that its legal basis was not reasonably available at the time direct appeal was taken and decided will postconviction relief be allowed.  Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).

            In this appeal, appellant contends that his argument is different from the first petition for postconviction relief.  He states that upon review of his first petition, the district court addressed whether Mack should be extended, not whether Mack should be applied to his case.  We disagree.  Appellant argues a distinction without a difference.  As stated, the district court thoroughly discussed Mack in its denial of his first petition for postconviction relief, and in State v. Rodriguez, we specifically addressed Mack and its application to appellant’s case.  We stated:

            The standard governing the admissibility of evidence gained through hypnosis is contained in State v. Mack, 292 N.W.2d 764 (Minn. 1980).  In Mack, the Minnesota Supreme Court held testimony of a “previously hypnotized witness concerning the subject matter adduced at the pretrial hypnotic interview may not be admitted in a criminal proceeding.”  Id. at 772.


            The Mack standard is interpreted to exclude from trial only those recollections that are recalled for the first time during the hypnosis.  “[O]nly matters disclosed under hypnosis which have not been previously and unequivocally disclosed in prehypnotic statements are barred from being testified to at a criminal trial.”  In re J.R.D., 342 N.W.2d 162 (Minn. App. 1984); see also State v. Blanchard, 315 N.W.2d 427, 430-31 (Minn. 1982); State v. Koehler, 312 N.W.2d 108, 110 (Minn. 1981).


Rodriguez, 345 N.W.2d at 785 (alteration in original).  Clearly, this matter was considered by the court in his first petition for postconviction relief and he is procedurally barred from bringing the claim again.  See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (stating rule that when direct appeal is taken, claims that were raised or could have been raised are barred).  The district court did not err in denying his petition for postconviction relief.

            Appellant also argues he was denied effective assistance of counsel because of numerous errors made at all levels of the court proceedings by his trial and appellate counsel.  “[W]here 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.”  Id.  This rule applies to ineffective-assistance-of-counsel claims unless an evidentiary hearing is necessary to develop additional facts to explain the attorney’s decisions.  Black v. State, 560 N.W.2d 83, 85 & n.1 (Minn. 1997).  We conclude appellant’s claim is barred and did not require additional fact-finding.

            First, appellant’s claim is barred under Knaffla by his failure to raise the ineffective-assistance-of-counsel issue on appeal.  Second, appellant’s ineffective-assistance claim is based on his counsel’s strategic decision not to call an expert witness to impeach the victim’s testimony; 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).  Appellant’s challenge to his counsel’s strategic decisions does not require additional fact-finding and is therefore procedurally barred under Knaffla.

            Finally, as to appellant’s claim of ineffective assistance of appellate counsel, the supreme court has held that when a claim for 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.  Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998).  We conclude, therefore, the postconviction court did not abuse discretion in finding that appellant was not denied effective assistance of counsel either at the trial or appellate court level.


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  Rodriguez was implicitly overruled by State v. Grimmett, 459 N.W.2d 515, 517 (Minn. App. 1990), on grounds not relevant to Rodriguez’s postconviction petition.