This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-998

Tyro Kirven, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 17, 1996

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. 91043209

Tyro Kirven, MCF - Stillwater, Box 55, Stillwater, MN 55082-0055 (Appellant Pro Se)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.[*]

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

KALITOWSKI, Judge

Appellant Tyro Kirven challenges the district court's order denying his petition for postconviction relief. Kirven alleges error in jury instruction, prosecutorial misconduct, and ineffective assistance of trial counsel. We affirm.

D E C I S I O N

An appellate court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the district court's findings, and a district court's decision will not be disturbed absent an abuse of discretion. Miller v. State, 531 N.W.2d 491, 492 (Minn. 1995).

I.

The supreme court has stated

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 post-conviction relief.

Id. at 493 (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). Postconviction relief has been allowed

where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken.

Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).

Here, Kirven's claims of improper jury instructions and prosecutorial misconduct were known at the time of Kirven's direct appeal. Moreover, these claims are not "so novel" that they were not available to counsel at the time of the direct appeal. Accordingly, the district court properly denied Kirven's petition for postconviction relief on these claims.

Further, a review on the merits reveals that Kiven is not entitled to postconviction relief on the following claims: (1) Andrew Kirven, Felicia Price, and Jubilee Blevins are accomplices, as a matter of law; and (2) the trial court erred in not giving cautionary accomplice jury instructions regarding Felicia Price and Jubilee Blevins. See State v. Shoop, 441 N.W.2d 475, 479 (Minn. 1989) (cautionary accomplice jury instructions need be given only where a witness might reasonably be considered an accomplice to the crime); State v. Hanley, 363 N.W.2d 735, 741 (Minn. 1985) (if the "facts are undisputed or compel but a single inference," the question of whether a person is an accomplice need not be put to a jury).

Kirven's prosecutorial misconduct claim based on the prosecutor's closing statement also fails. While we disapprove of prosecutors giving closing statements that attempt to establish the credibility of a witness, we conclude that the statements made by the prosecutor in this case do not reach a threshold of impropriety amounting to prosecutorial misconduct. See State v. Smith, 541 N.W.2d 584, 589 (Minn. 1996) (holding that a prosecutor's closing statements attempting to establish the credibility of witnesses were permissible where they do not reach the threshold of impropriety); State v. Parker, 353 N.W.2d 122, 128 (Minn. 1984) (affirming conviction where the prosecutor's personal endorsement of witness's veracity was nonprejudicial).

II.

To obtain relief for ineffective assistance of counsel, appellant must affirmatively prove that counsel's representation "fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (citation omitted).

Here the evidence supports the district court's finding that "petitioner's counsel represented him effectively." Further, we conclude that even if trial counsel had done all that Kirven suggests, the outcome of the trial would not have changed. See Scruggs v. State, 484 N.W.2d 21, 26 (Minn. 1992) (rejecting ineffective assistance claim because petitioner did not prove that the result of the trial would have been different but for counsel's alleged mistakes); Gates, 398 N.W.2d at 563 (rejecting ineffective assistance claim where defendant failed to show that the results of the trial would have been changed had his attorney represented him differently).

Affirmed.

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