This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C1-96-474

Ronaldo S. Ligons,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 17, 1996
Affirmed
Short, Judge

Hennepin County District Court
File No. 92002108

Ronaldo S. Ligons, MCF-Stillwater, Box 55, Stillwater, MN 55082 (Pro Se Appellant)

Hubert H. Humphrey, III, Attorney General, 102 State Capitol, St. Paul, MN 55155 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Donna J. Wolfson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Short, Judge.

U N P U B L I S H E D O P I N I O N

SHORT, Judge
After a jury found him guilty of second-degree intentional murder and second-degree felony murder, Ronaldo S. Ligons filed a direct appeal. On that initial appeal, this court decided Ligons's ineffective assistance of counsel claim on the merits, but declined to address his argument concerning the jury's racial composition because Ligons waived the issue by failing to raise it at trial. State v. Ligons, No. C5-93-1354 (Minn. App. June 14, 1994), review denied (Minn. Aug. 24, 1994). Following his direct appeal, Ligons filed a petition for postconviction relief, which alleged ineffective assistance of initial and substitute trial counsel. Relief was denied without an evidentiary hearing in light of our consideration of an ineffective assistance claim on direct appeal. Ligons then filed a second petition, which addressed ineffective assistance of appellate counsel and underrepresentation of minorities on the jury panel. That second petition was summarily denied. On appeal, Ligons argues the postconviction court abused its discretion by denying his first petition without an evidentiary hearing and by summarily denying his second petition. We affirm.
D E C I S I O N

Postconviction actions present an opportunity for collateral review after expiration of the time for direct appeal. 8 Henry W. McCarr, Minnesota Practice § 43.1, at 675 (2d ed. 1990). A direct appeal does not entirely foreclose postconviction relief, but does limit its scope. Thus, a prisoner may not seek postconviction relief for issues either raised on direct appeal or known to the prisoner at the time of direct appeal. Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995) (quoting Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989)). Nor may a prisoner request similar relief in successive postconviction proceedings. Minn. Stat. § 590.04, subd. 3 (1994). In reviewing the order of a postconviction court, our function is to determine whether the record sustains the findings or whether the decision constitutes an abuse of discretion. Miller, 531 N.W.2d at 492.
Ligons argues the postconviction court abused its discretion by denying his first petition without an evidentiary hearing because it relied on this court's previous decision, which erroneously reached the merits of his ineffective assistance claim instead of requiring the issue's development at a postconviction hearing. See State v. Steele, 449 N.W.2d 157, 157 (Minn. 1989) (stating that prisoners should raise an ineffective assistance claim on direct appeal and request dismissal without prejudice in order to permit development of factual issues at a postconviction hearing). We disagree. When the record provides an adequate basis for decision, a direct appeal becomes the appropriate vehicle for consideration of an ineffective assistance claim. See United States v. Pratt, 52 F.3d 671, 674 (7th Cir.) (noting the propriety of deciding an ineffective assistance claim on direct appeal when the issue is "sufficiently clear-cut and can be conclusively determined from the record"), cert. denied, 116 S. Ct. 216 (1995); Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (requiring dismissal and postconviction hearings only "[w]hen an expanded record is needed"). Thus, this court acted properly in deciding the ineffective assistance claim on direct appeal because Ligons challenged only the work of initial counsel, and his apparent satisfaction with the performance of substitute counsel rendered their predecessors' conduct legally irrelevant. See Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (involving an ineffective assistance claim and requiring an evidentiary hearing only upon the presentation of allegations that, if proven, would establish actual prejudice). Furthermore, postconviction courts lack authority to review the decisions of an appellate court. See Miller, 531 N.W.2d at 493 (quoting Dent, 441 N.W.2d at 499, and recognizing that postconviction relief is not available for issues that were previously decided on appeal); Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (applying this rule to an ineffective assistance claim raised in the prisoner's supplemental pro se brief on direct appeal).
Ligons also argues that our prior decision did not address, and does not bar litigation of, substitute counsels' failure to call eight witnesses. Although we never examined this particular ineffective assistance claim on direct appeal, it is undisputed that Ligons considered the issue before filing his supplemental pro se brief, but chose to rely on a different ineffective assistance claim. Having made this election, Ligons waived the remaining argument for purposes of postconviction relief. See Hanley v. State, 534 N.W.2d 277, 279 n.3 (Minn. 1995) (recognizing that if a defendant knows of several ineffective assistance claims, but argues only a portion of them on direct appeal, he or she waives the balance for purposes of postconviction relief); Lakin v. State, 406 N.W.2d 616, 618-19 (Minn. App. 1987) (same); see also Fratzke, 450 N.W.2d at 102 (applying a similar rule to a case in which the petitioner did not raise his only known ineffective assistance claim on direct appeal); Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (following Fratzke). But see Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992) (allowing a prisoner to raise an ineffective assistance claim for the first time in a postconviction action, but not overruling Fratzke or Marhoun).
In addition, Ligons's first petition failed to allege facts demonstrating a reasonable probability that the claimed errors affected the outcome at trial. See Fratzke, 450 N.W.2d at 102 (authorizing an evidentiary hearing only when a prisoner makes allegations that, if proven, would establish actual prejudice). First, while Ligons asserts his initial attorneys conducted an inadequate investigation of the facts, he has not identified the evidence they failed to uncover. See Crisler v. State, 520 N.W.2d 22, 26 (Minn. App. 1994) (stating the failure to investigate does not constitute ineffective assistance absent a showing that a proper inquiry would have produced significant exculpatory proof), review denied (Minn. Sept. 28, 1994). Second, although Ligons disapproves of substitute counsels' failure to consult a blood-spatter analyst, he does not affirmatively allege the existence of an expert who would have given favorable testimony. See Gates v. State, 398 N.W.2d 558, 563 (Minn. 1987) (rejecting an ineffective assistance claim because the petitioner did not establish that adequate trial preparation would have produced a favorable witness whose testimony would have changed the trial's outcome). And third, even though substitute counsel might have called additional witnesses, their testimony would have been inadmissible, cumulative, or only mildly probative. Decisions regarding the presentation of such evidence involve the exercise of tactical judgment and generally will not support an ineffective assistance of counsel theory. See Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991) (quoting State v. Bliss, 457 N.W.2d 385, 392 (Minn. 1990), for the proposition that the choice of witnesses lies within the discretion of trial counsel); State v. Buchanan, 431 N.W.2d 542, 553 (Minn. 1988) (noting the choice of trial tactics generally will not serve as a basis for finding ineffective assistance of counsel).
Moreover, Ligons has not explained how the additional testimony would have overcome the facts that: (1) the victim was unable to enter his apartment without Ligons, who had the victim's keys; (2) after seeing Ligons enter the building, the victim left another resident's apartment with the intention of meeting him; (3) within a few minutes, residents heard a violent struggle in the victim's apartment and decided to call the police; (4) shortly thereafter, two security officers entered the victim's apartment, where the victim identified Ligons several times as his assailant; (5) blood covered the floors and walls of the victim's apartment; (6) witnesses saw blood on Ligons's hands, face, shoes, as well as on the front and back of his jacket and trousers; (7) no blood was found outside the victim's apartment; and (8) Ligons told his jailers, "But you know what? He had it coming." Thus, even in the absence of procedural obstacles, the first petition could not have established the need for an evidentiary hearing. See Fratzke, 450 N.W.2d at 102 (authorizing an evidentiary hearing on ineffective assistance claims only after the proponent alleges facts sufficient to establish a reasonable probability that the claimed errors altered the result at trial); Miles v. State, 512 N.W.2d 601, 603 (Minn. App. 1994) (noting the existence of a substantial body of inculpatory evidence and rejecting an ineffective assistance claim that was based on the failure to introduce favorable proof), review denied (Minn. May 17, 1994).
Ligons further argues the postconviction court abused its discretion by summarily denying his second petition, which neither constituted a successive request for similar relief nor raised issues previously decided on appeal. See Minn. Stat. § 590.04, subd. 3 (authorizing summary denial only on these grounds); State v. O'Leary, 359 N.W.2d 703, 704 (Minn. App. 1984) (remanding for entry of findings and conclusions because the case's procedural history did not warrant summary denial). We disagree. Although the second petition raises ineffective assistance of appellate counsel for the first time, it does so only by: (1) describing the performance of initial and substitute trial counsel; and (2) arguing that appellate counsel unreasonably refused to seek relief based on their collective incompetence. Under these circumstances, we conclude the second petition embodies a successive request for similar relief. Cf. Miles, 512 N.W.2d at 603 (noting an ineffective assistance of appellate counsel argument became untenable after the postconviction court decided there was no merit to the underlying allegations regarding the performance of trial counsel).
Ligons's second petition also discussed the underrepresentation of minorities on his jury panel. Because we previously recognized Ligons's waiver of the issue, the postconviction court properly ordered summary denial. See Minn. Stat. § 590.04, subd. 3 (permitting summary denial of petitions that raise issues previously decided on direct appeal). In the present appeal, Ligons recognizes the procedural bar to litigation of the underrepresentation claim on the merits, but argues this defect establishes the inadequacy of his representation at trial and on appeal. However, in his second petition, Ligons addressed only the merits of the underrepresentation claim, and his reformulation of the issue constitutes an improper attempt to switch theories on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (prohibiting litigants from changing theories on appeal).
Affirmed.