may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jeffrey Jay Rusthoven, petitioner,
State of Minnesota,
Filed July 6, 1999
Toussaint, Chief Judge
Dakota County District Court
File No. K894895
Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and
Lawrence F. Clark, Assistant Dakota County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)
Considered and decided by Toussaint, Chief Judge, Schumacher, and Huspeni, Judge.[*]
TOUSSAINT, Chief Judge
Appellant Jeffrey Rusthoven challenges the summary denial of his petition for postconviction relief, arguing that the postconviction court abused its discretion by not providing him with an evidentiary hearing on his prosecutorial misconduct and ineffective assistance of counsel claims. The postconviction court found that Rusthoven's claims were either raised or known at the time of a previous direct appeal and thus, Rusthoven was precluded from raising them in postconviction proceedings. Because the postconviction court did not abuse its discretion in denying Rusthoven's petition without an evidentiary hearing, we affirm.
Rusthoven was convicted of criminal sexual conduct in the first degree for abusing K.K., the eight-year-old daughter of his domestic partner. Rusthoven filed a direct appeal to this court challenging his conviction on several grounds, one of which was the prosecutor's use of improper opinions on the credibility of the state's witnesses in closing argument. This court affirmed the conviction and the supreme court denied review. Rusthoven then filed a petition for postconviction relief alleging that: (1) the prosecutor committed misconduct by eliciting improper "vouching" testimony relating to the victim's credibility and used this testimony, along with his own "vouching" opinions, in closing argument; and (2) his trial counsel was ineffective because he failed to call two witnesses in the second trial who were called in the first trial, which resulted in a hung jury, and he failed to request an independent examination of the victim. The postconviction court summarily denied his petition and Rusthoven now appeals.
In a postconviction appeal decision we determine whether there is sufficient evidence to sustain the postconviction court's findings. And we will not reverse the postconviction court's decision absent an abuse of discretion. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).
A postconviction court shall order a hearing on a petition for postconviction relief unless "the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1998). A hearing is not required unless facts are alleged which, if proved by a fair preponderance of the evidence, would entitle a petitioner to the requested relief. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). A postconviction court may summarily deny a petition "when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case." Minn. Stat. § 590.04, subd. 3 (1998). In addition, once an appellant has directly appealed his conviction, "any matter raised and any claim known but not raised, will not be considered upon a subsequent petition for postconviction relief." Black v. State, 560 N.W.2d 83, 85 (Minn. 1997); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (Knaffla rule).
Only where 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 post-conviction relief be allowed.
Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991) (citing Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)).
A. Prosecutorial misconduct claims
The postconviction court concluded that the Knaffla rule applied to bar Rusthoven's prosecutorial misconduct claims. Specifically, the court determined that: (1) Rusthoven's claim that the prosecutor made improper "vouching" statements in closing argument was raised and decided on his direct appeal; and (2) his claim that the prosecutor elicited "vouching" testimony from two witnesses was sufficiently similar to his claim on direct appeal to preclude its being raised in a postconviction proceeding.
Rusthoven concedes that the issue of the prosecutor's use of "vouching" statements in closing argument was raised on direct appeal, and he does not appeal the court's determination that his second claim was sufficiently similar so as to be barred under the Knaffla rule. Rather, Rusthoven argues that because the rule on "vouching" was changed by a case that was filed only four months before his direct appeal, he should not be barred from raising the issue again in a postconviction petition. He cites Pladson v. State, 385 N.W.2d 406, 408-09 (Minn. App. 1986), for the proposition that a postconviction petitioner should not be barred from reasserting claims otherwise barred under the Knaffla rule when the petitioner relies in his postconviction petition on a case that was only months old at the time of his direct appeal.
First, we decline to consider whether the rule on "vouching" was changed before Rusthoven's direct appeal. Further, we conclude that Pladson is distinguishable because the present case addresses the ability of a petitioner to reassert a claim in an initial postconviction proceeding that was already raised and decided on direct appeal. Pladson, in contrast, dealt with the effect of a petitioner's failure to raise a claim in an initial postconviction petition on a subsequent postconviction proceeding. Therefore, we conclude that the postconviction court did not abuse its discretion in determining that Rusthoven's prosecutorial misconduct claims were barred.
B. Ineffective assistance of counsel claims
The postconviction court also concluded that the Knaffla rule applied to bar Rusthoven's two ineffective assistance of counsel claims. The postconviction court concluded, he must "have certainly been aware of [these] claims at the time of [his direct] appeal." The Knaffla rule applies to bar claims that an appellant knew or should have known about at the time of direct appeal. Black, 560 N.W.2d at 85. The Black court charged the petitioner with constructive knowledge of his prosecutorial misconduct claim at the time of his direct appeal, which was based on the prosecutor's introduction of two witnesses. Here, Rusthoven's ineffective assistance claims are based on his counsel's failure to call two witnesses, and failure to request an independent expert examination of the victim. The facts giving rise to Rusthoven's ineffective assistance claims were equally as evident as those giving rise to the prosecutorial misconduct claim in Black, and they are not so novel that their legal basis was not reasonably available at the time of his direct appeal.
Rusthoven argues that "appellate courts have made it clear that ineffective assistance of counsel issues are to be raised in post-conviction proceedings, and not on appeal," and cites Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990), in support of his proposition. To the contrary, Fratzke specifically states that the Knaffla rule "includes claims of ineffective assistance of trial counsel." Id. (citing Dent v. State, 441 N.W.2d 497 (Minn. 1989)); Black, 560 N.W.2d at 85-86 (stating that ineffective assistance of trial counsel claims are generally precluded if known at the time of direct appeal).
Rusthoven also argues that "the issue of ineffective assistance of counsel, to be effectively presented, generally requires an attorney's training and review." His assertion is confusing in light of the fact that he had new legal counsel for his direct appeal. Furthermore, because Rusthoven fails to make any further argument or cite any authority in support of the argument he is attempting to make, he has waived it on appeal. State, Pollution Control Agency v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (holding that an assignment of error based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)). Therefore, we conclude that the postconviction court did not abuse its discretion in applying the Knaffla rule to bar Rusthoven's ineffective assistance of counsel claims because Rusthoven knew or should have known about the claims at the time of his direct appeal.
Because the Knaffla rule bars Rusthoven's postconviction claims, we need not address whether the postconviction court abused its discretion by determining that Rusthoven failed to allege facts that, if proved, would establish that his counsel's assistance was ineffective.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.