IN SUPREME COURT
Anderson, G. Barry, J.
Reginald Gail, petitioner,
Filed: June 7, 2007
Office of Appellate Courts
S Y L L A B U S
1. Postconviction court did not abuse its discretion by rejecting postconviction claims that were Knaffla-barred.
2. Postconviction court did not abuse its discretion by rejecting claims of ineffective assistance of appellate counsel where petitioner failed to demonstrate that his appellate counsel’s conduct fell below an objective standard of reasonableness.
Heard, considered, and decided by the court en banc.
O P I N I O N
ANDERSON, G. Barry, Justice.
appellant Reginald Gail was convicted in
The underlying facts of Gail’s crime
are laid out in State v. Gail, 713
N.W.2d 851 (
1. Was the search warrant issued for the search of the
2. Should the cell phone records provided by Verizon have been suppressed?
3. Did the court err in denying Gail’s motions to empanel a different jury venire because of underrepresentation of African-Americans or in denying Gail’s motion for additional discovery relating to the selection process for petit jury pools?
4. Was the evidence sufficient to support Gail’s conviction of first-degree felony murder?
5. Did the district court commit reversible error by failing, sua sponte, to allow the jury to decide whether a witness was an accomplice for purposes of giving an accomplice corroboration instruction?
6. Did the district court err in ordering that the jury be sequestered or in ordering that the jury begin deliberations on a Friday afternoon?
7. Did the State commit prosecutorial misconduct in closing argument?
1. Jury selection procedures in his case resulted in a venire in which African-Americans were underrepresented;
2. Ineffective assistance of trial and appellate counsel in failing to challenge the racial composition of the grand jury;
3. Grand jury procedures unconstitutionally undermined the independence of the grand jury;
4. The trial court erred in instructing the jury regarding the requirement of a unanimous verdict;
5. The trial court erred in failing to suppress the gun
seized from the
6. The trial court erred in failing to include an accomplice corroboration instruction with respect to witnesses Hollingsworth and Hill;
7. The trial court erred in failing to suppress the cell phone records;
8. The trial court erred in sequestering the jury and thereby causing the jury undue hardship;
9. The evidence was insufficient to uphold Gail’s conviction;
10.The trial court erred in its instruction on circumstantial evidence;
11.The prosecutor committed misconduct in introducing character evidence to prove Gail’s guilt;
12.The prosecutor committed misconduct in the closing argument by stating a personal opinion and vouching for the credibility of state witnesses; and
13.Ineffective assistance of trial and appellate counsel.
The postconviction court concluded that claims (1), (5), (6), (7), (8), (9), (11), and (12) are identical or substantially similar to the claims Gail pursued on direct appeal and that therefore they were procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). The postconviction court also concluded that claims (3), (4), and (10) were procedurally barred because Gail knew or should have known of them when he raised his direct appeal and they do not fall under any exception to the Knaffla rule. Finally, the postconviction court concluded that with respect to claims (2) and (13) as those claims relate to ineffective assistance of appellate counsel, Gail did not prove that his counsel’s performance fell below an objective standard of reasonableness or that he was prejudiced by counsel’s performance. Gail appealed the postconviction court’s denial of postconviction relief.
On review of a postconviction
decision, we determine whether there is sufficient evidence to support the
postconviction court’s findings. White v. State, 711 N.W.2d 106, 109 (
“[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.” Knaffla,
The bulk of Gail’s claims are
identical or substantially similar to those that we rejected on his direct appeal. Regarding claim (1), that the jury selection
procedures resulted in a venire in which African-Americans were
underrepresented, we held that “the district court did not err in denying
Gail’s motions for a new venire” or “when it denied Gail’s request that the court
gather information on Gail’s behalf.” Gail, 713 N.W.2d. at 862. Regarding claim
(5), that the trial court erred in suppressing the gun found in the
The rest of Gail’s claims—(2), (3), (4), (10), (11), and (13)—are not the same or substantially similar to claims already litigated on direct appeal, but most are Knaffla-barred because they could have been raised on direct appeal.
Gail’s claim that the grand jury procedures unconstitutionally undermined the independence of the grand jury, claim (3), could have been raised on direct appeal. See Townsend v. State, 723 N.W.2d 14, 18 (Minn. 2006) (“Problems with * * * the grand jury process * * * were known or available after trial and should have been raised in [petitioner’s] direct appeal.”); White, 711 N.W.2d at 109 (“[W]e conclude that [petitioner’s] claims of racial discrimination in the selection of the grand jury * * * are also barred by the Knaffla rule because [petitioner] knew or should have known of these claims at the time of his direct appeal.”); Mckenzie v. State, 707 N.W.2d 643, 644-45 (Minn. 2005) (holding that the petitioner could have raised the claim that grand jury procedures systematically excluded African-Americans in his direct appeal and that the postconviction court properly barred the claims under Knaffla). Because Gail knew or should have known about the grand jury procedures after his trial and at the time of his direct appeal, his claim is Knaffla-barred. Gail argues that his appellate counsel refused to raise these issues. But Gail submitted a pro se brief on direct appeal and could have raised the grand jury issues himself.
Gail’s challenge to the grand jury
selection process does not fall under either of the Knaffla exceptions. See Mckenzie,
707 N.W.2d at 645 (“[I]n light of our determination in Roan that a Hennepin County jury selection process, which, like the
grand jury selection process in question, used registered voters, driver’s
licenses, and registered Minnesota identification card holders, was
constitutional, [petitioner’s] claim is not reviewable under either [Knaffla exception].”) (citing State v. Roan, 532 N.W.2d 563, 569 (
Gail also claims that the prosecutor committed misconduct during the grand jury testimony by identifying Gail as “the shooter” 27 times. Gail did not provide this court with a transcript of the grand jury proceedings. Without a transcript, we cannot analyze the merits of Gail’s claim. See State v. Durante, 406 N.W.2d 80, 83 (Minn. App. 1987) (holding that because the state did not provide the court with a grand jury transcript, the court could not determine whether the district court erred in excluding certain trial testimony).
Gail’s claims that the trial court erred in instructing the jury regarding the requirement of a unanimous jury and on circumstantial evidence, claims (4) and (10), were either known or should have been known after trial and should have been raised in his direct appeal. See Townsend, 723 N.W.2d at 18 (“Problems with * * * the jury instructions * * * were known or available after trial and should have been raised in [petitioner’s] direct appeal.”); McDonough v. State, 707 N.W.2d 384, 388 (Minn. 2006) (concluding that postconviction claim of district court error in providing jury instructions was barred by Knaffla because petitioner knew or should have known of it at the time of his direct appeal). Gail’s claims regarding jury instructions are not novel and Gail has not demonstrated that we should consider them in the interests of justice. The claims therefore do not fall under either of the Knaffla exceptions.
Gail’s claim of prosecutorial misconduct in introducing character evidence to prove guilt, claim (11), is Knaffla-barred because he knew or should have known of the prosecutor’s alleged misconduct after the trial and at the time of his direct appeal. Additionally, Gail does not explain which witnesses testified about Gail’s character and does not cite to the record to support his claim. It would therefore be difficult, if not impossible, for us to review the merits of his claim.
Gail claims that his trial counsel was ineffective for failing to challenge the grand jury proceedings, for failing to raise objections at trial, and for failing to interview witnesses and fully investigate his case, claims (2) and (13). Gail’s claims of ineffective assistance of trial counsel are Knaffla-barred because he knew or should have known of them after trial and before his direct appeal. Gail submitted a pro se brief on his direct appeal and could have included his ineffective assistance of counsel claims at that time. The claims do not fall under the exceptions to Knaffla.
Even if not Knaffla-barred, Gail’s claims of ineffective assistance of trial
counsel have no merit. In order to
prevail on a claim of ineffective assistance of counsel, Gail must show that
his attorney’s performance fell below an objective standard of reasonableness
and that a reasonable probability exists that the outcome would have been
different, but for counsel’s errors. Bruestle v. State, 719 N.W.2d 698, 704 (
We rejected a claim that African-Americans are systemically excluded from grand juries and trial juries in Mckenzie, 707 N.W.2d at 645, where we held that because the grand jury procedures were constitutional and the issue did not fall under either Knaffla exception, petitioner’s “ineffective assistance of counsel claim with respect to the grand jury selection process also fails.” Because the claim itself has no merit, Gail’s trial counsel was not ineffective for failing to raise it.
Gail has not provided any factual
support for his other assertions of ineffective assistance of trial
counsel. Gail has not provided a record
of his trial counsel’s failure to challenge the indictment due to prosecutorial
misconduct, nor has Gail provided any factual support for his assertions that
his trial counsel failed to investigate, speak with witnesses, and prepare his
case. Gail is not entitled to a postconviction
evidentiary hearing, because a petitioner requesting an evidentiary hearing cannot
depend on mere argumentative assertions without factual support.
Gail’s claims of ineffective assistance of appellate counsel, claims (2) and (13), are not Knaffla-barred. However, just like the ineffective assistance of trial counsel claims, they have no merit. Appellate counsel’s decision not to challenge the grand jury procedures was reasonable for the same reason that trial counsel’s decision was reasonable – the claim had no merit. Because Gail did not provide a factual basis for his other claims of errors by trial counsel or the district court, appellate counsel’s failure to raise those issues on appeal was reasonable. Gail has failed to allege any facts that would support his assertion that his appellate counsel’s representation was ineffective. Because all of Gail’s claims are either Knaffla-barred or have no merit, the postconviction court did not abuse its discretion by denying Gail’s motion for postconviction relief.