This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Joel Millard Peterson,




State of Minnesota,


Filed June 22, 1999


Klaphake, Judge

Polk County District Court

File No. K8-97-1206

Harlan Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange Bldg., 10 S. Fifth St., Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; and

Wayne H. Swanson, Polk County Attorney, 101 Crookston Professional Center, 223 E. Seventh St., Crookston, MN 56716 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.



Appellant Joel Millard Peterson was convicted of making terroristic threats and third-degree assault of his ex-girlfriend. In this petition for postconviction relief, Peterson claims he received ineffective assistance of counsel because his trial attorney, James Beuning, failed to disclose that he was also representing the victim's new boyfriend, James McDonald, on an unrelated drug charge.

Peterson appeals from the district court's dismissal of his petition without an evidentiary hearing. Because the petition for postconviction relief consists of broad assertions and fails to place any material facts in dispute that, if proven, would entitle Peterson to relief, we affirm.


Generally, to obtain a reversal based on a claim of ineffective assistance of counsel, a petitioner must prove that counsel's representation fell below an objective standard of reasonableness, and, but for counsel's errors, the result of the trial would have been different. State v. Ecker, 524 N.W.2d 712, 718 (Minn. 1994) (claim of ineffective assistance of counsel in context of guilty plea) (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)). Although prejudice is presumed when a conflict is not disclosed and the issue is not timely brought to the trial court's attention, a defendant must still show that his attorney "actively represented conflicting interests" and that this actual conflict "adversely affected [his attorney's] performance." Cooper v. State, 565 N.W.2d 27, 32 (Minn. App. 1997) (quoting Cuyler v. Sullivan, 446 U.S. 348, 350, 100 S. Ct. 1708, 1719 (1980)), review denied, (Minn. Aug. 5, 1997); see also Crouse v. State, 335 N.W.2d 236, 237 (Minn. 1983). Peterson's allegations fail to meet this burden.

No Actual Conflict

The mere possibility or potential for conflict is insufficient to impugn a criminal conviction. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719. A conflict must materially limit an attorney's responsibilities to another client or to a third person. Minn. R. Prof. Conduct 1.7(b); cf. United States v. Gambino, 864 F.2d 1064, 1070 (3rd Cir. 1988) (where attorney represents individual defendants in different matters, actual conflict exists if defendants' interests diverge with respect to material factual or legal issue or to course of action).

Peterson alleges that Beuning's representation of both Peterson and McDonald presented a clear "potential for conflicting interests, divided loyalties, or breaches of confidence." In particular, Peterson claims that the victim may have had contact with Beuning and that McDonald would have been a key witness in Peterson's trial.

These allegations are insufficient to establish an actual conflict existed. Peterson fails to claim that Beuning and the victim ever discussed Peterson's case or that Beuning "actually learned particular confidential information" while representing McDonald. See Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1993) (when two cases are substantially unrelated, inappropriate communications may not be presumed). In addition, McDonald was not present during Peterson's crimes, and the state claimed he would not be called to testify; he thus was not a "key" witness.[1] Further, because there was no trial and McDonald never testified, at most Peterson raises a potential, not an actual, conflict of interest. See id. at 865 (prosecutor's decision not to call witness removed hypothetical conflict of interest).

Finally, Peterson's personal animosity towards McDonald does not constitute a conflict of interest for Beuning. The fact that McDonald is the victim's current boyfriend did not create conflict for Beuning: Beuning represented Peterson and McDonald on entirely unrelated cases, and McDonald was not a co-defendant or an accomplice to Peterson's crimes. Although we agree with Peterson that it would have been preferable for Beuning to disclose his representation of McDonald, Beuning's failure to do so did not violate his duties as an attorney or make his representation of Peterson ineffective.

Beuning's Performance Not Adversely Affected

To prove an alleged conflict adversely affected an attorney's performance, a defendant must allege that a plausible, alternative defense strategy or tactic existed and that this defense strategy or tactic was not undertaken due to the attorney's other loyalties or interests. Freund, 165 F.3d at 860; United States v. Fahey, 769 F.2d 829, 836 (1st Cir. 1985). Peterson fails to present any alternative defense strategy that could have been undertaken by Beuning. Given the strength of the evidence against Peterson, it was reasonable for Beuning to seek the plea agreement under which Peterson received concurrent sentencing and dismissal of the more serious kidnapping charge.

Thus, Peterson fails to allege material facts that, if proved, would entitle him to relief. See Berg v. State, 403 N.W.2d 316, 318 (Minn. App. 1987) (defendant's assertions that public defender's office had persuaded two of his cell mates to search his cell, obtain his legal notes, and pass those notes onto the county attorney did not warrant hearing), review denied (Minn. May 18, 1987). The broad assertions made by Peterson in support of his petition for postconviction relief are insufficient to require a hearing. See Morrissey v. State, 286 Minn. 14, 16, 174 N.W.2d 131, 133-34 (1970) (petitioner "may not subject the judicial process to an exploratory investigation in the hope that some fortuitous reason may be discovered" for granting relief). The district court therefore did not abuse its discretion in dismissing Peterson's petition without an evidentiary hearing. See Miller v. State, 531 N.W.2d 491, 493 (Minn. 1995); Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (if facts alleged in postconviction petition conclusively show petitioner is entitled to no relief, evidentiary hearing not required); Minn. Stat. § 590.04, subd. 1 (1998) (postconviction court required to set hearing "[u]nless the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief").


[1] While McDonald's testimony regarding his alleged sexual encounter with Peterson's ex-girlfriend the night before Peterson's offenses could have established a motive for Peterson's crimes, it would not legally justify or excuse Peterson's conduct, as Peterson claims.