A05-240

Frank Edward Johnson, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 17, 2006

Affirmed

Willis, Judge

Olmsted County District Court

File No. K2-02-3562

Frank Edward Johnson, MCF - Moose Lake # 210996, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Raymond F. Schmitz, Olmsted County Attorney, 151 Southeast Fourth Street, Rochester, MN 55904 (for respondent)

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Worke, Judge.

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

WILLIS, Judge

Pro se appellant challenges the denial of his petition for postconviction relief. Because appellant either raised or could have raised on direct appeal all of his claims except for his claim of ineffective assistance of appellate counsel, and because that claim lacks merit, we affirm.

FACTS

In November 2002, appellant Frank Johnson was convicted of fifth-degree assault, third-degree criminal sexual conduct, and first-degree burglary. Johnson appealed, and this court reversed the conviction of first-degree burglary and affirmed the remaining convictions. State v. Johnson, 679 N.W.2d 378, 389 (Minn. App. 2004), review denied (Minn. Aug. 17, 2004). Johnson subsequently filed a petition for postconviction relief, which the postconviction court denied. This appeal follows.

D E C I S I O N

We review a postconviction court’s denial of relief for an abuse of discretion. Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).

In his appeal from the denial of his petition for postconviction relief, Johnson raises several claims that he either already raised or could have raised in his direct appeal. 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 (2004). When a direct appeal has been taken, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Claims that should have been known at the time of the direct appeal are also barred from consideration. Quick, 692 N.W.2d at 439. But a postconviction court may consider a claim that was previously known but not raised if (1) “the claim presents a novel legal issue” or (2) “fairness requires review of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.” Id. To present a novel legal issue, the “claim must be so novel that its legal basis was not reasonably available to petitioner at the time [of] the direct appeal.” Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). For a claim to be decided in the interests of fairness and justice, it must have substantive merit. Id.

Here, Johnson raises several claims that he already argued on direct appeal, including ineffective assistance of trial counsel, prosecutorial misconduct, and insufficient evidence to support his conviction of third-degree criminal sexual conduct. Because these claims were raised on direct appeal, either in the brief submitted by Johnson’s appellate counsel or in Johnson’s pro se supplemental brief, and because this court has already reviewed and decided these claims, Johnson, 679 N.W.2d at 387, 389, the postconviction court did not abuse its discretion by summarily denying relief on these claims.

Johnson also raises several claims that he failed to raise on direct appeal but that were known, or should have been known, to him at that time. These include (1) a claim that the warrant for Johnson’s arrest was insufficient because there was no “affidavit of oath” attached to the warrant or, in the alternative, that Johnson was arrested without a warrant, (2) a claim that the police failed to give Johnson a Miranda warning, (3) a claim that Johnson’s due-process rights were violated because he was not indicted by a grand jury, (4) a claim that the district court lacked personal or subject-matter jurisdiction, and (5) a claim that the district court wrongly failed to dismiss several jurors for cause. None of these claims presents a novel legal issue, and Johnson does not argue that they should be reviewed in the interest of justice. But for the sake of completeness, we nevertheless will consider each of Johnson’s claims to the extent that the record allows.

First, two of Johnson’s claims are not susceptible of appellate review: Johnson argues that he was not given a Miranda warning and that the warrant for his arrest was insufficient because it did not have an “affidavit of oath” attached or, in the alternative, that he was arrested without a warrant. These claims involve questions of fact, and because Johnson did not raise them in an omnibus hearing, the state has not had the opportunity to present evidence on these issues. We do not address on appeal issues that involve undeveloped questions of fact. See, e.g., State v. Lieberg, 553 N.W.2d 51, 56 (Minn. App. 1996) (concluding that the appellant’s discussion of suppression issues that were not raised in an omnibus hearing was particularly inappropriate because the issues involved undeveloped questions of fact); State v. Brunes, 373 N.W.2d 381, 386 (Minn. App. 1985) (declining to address the propriety of an unannounced nighttime search because the defendant first raised it after the omnibus hearing and, thus, deprived the state of an opportunity to present evidence), review denied (Minn. Oct. 11, 1985). Because Johnson did not raise these issues in the district court, the record is undeveloped, and we are unable to review the claims.

Johnson’s remaining claims lack merit. Johnson argues that his due-process rights were violated because he was not indicted by a grand jury. In Minnesota, a defendant must be prosecuted by indictment only if the offense with which he is charged could result in the punishment of life imprisonment; all other offenses may be charged in a properly executed complaint. Minn. R. Crim. P. 17.01; see Minn. R. Crim. P. 2.03. Here, Johnson was charged by a detailed complaint with fifth-degree assault, third-degree criminal sexual conduct, and first-degree burglary. None of the offenses with which Johnson was charged carries a maximum penalty of life imprisonment. See Minn. Stat. § 609.224 (2002) (fifth-degree assault); Minn. Stat. § 609.344, subd. 2 (2002) (third-degree criminal sexual conduct); Minn. Stat. § 609.582, subd. 1 (2002) (first-degree burglary). Further, Johnson does not specify how his due-process rights were violated because he was charged by a complaint instead of by indictment. There is no merit to his claim.

Johnson also argues that the district court lacked personal or subject-matter jurisdiction in this matter. Whether a district court has jurisdiction is a question of law, which this court reviews de novo. Johnson v. Murray, 648 N.W.2d 664, 670 (Minn. 2002). A district court has original jurisdiction over all criminal offenses committed within its district. Minn. Const. art. VI, § 3; Minn. Stat. § 484.01, subd. 1 (2004). Here, the state charged Johnson with criminal offenses arising from events that occurred in Rochester, Minnesota, which is in Olmsted County. The district court in Olmsted County had both personal and subject-matter jurisdiction over Johnson and the criminal offenses.

Finally, Johnson argues that the district court erred by failing to dismiss for causeseven people from the jury pool because of bias. When juror bias is alleged, reviewing courts have traditionally followed a three-part analysis that requires an appellant to show that (1) the juror in question was subject to challenge for cause, (2) actual prejudice resulted from the failure to dismiss, and (3) the appellant made the appropriate objection in the district court. State v. Stufflebean, 329 N.W.2d 314, 317 (Minn. 1983). Minn. R. Crim. P. 26.02, subd. 5, contains an exclusive list of the grounds on which a juror may be challenged for cause. State v. Anderson, 603 N.W.2d 354, 356 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000). One such ground is “[t]he existence of a state of mind on the part of the juror … which satisfies the court that the juror cannot try the case impartially and without prejudice.” Minn. R. Crim. P. 26.02, subd. 5(1)1. The district court is in the best position to determine whether prospective jurors can be impartial because it hears their testimony and observes their demeanor. State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990). The district court’s determination of a prospective juror’s impartiality or lack thereof is entitled to special deference because it is a determination of credibility and of demeanor. State v. Logan, 535 N.W.2d 320, 323 (Minn. 1995).

Here, Johnson argues that seven prospective jurors were biased because they either had an acquaintance or relative who had been sexually assaulted or worked with or knew someone who worked with victims of sexual assault. None of these reasons alone is a ground for a challenge for cause. See Minn. R. Crim. P. 26.02, subd. 5. And the record shows that either the district court or the attorneys questioned these seven prospective jurors and that the district court was satisfied, despite Johnson’s motions to strike two of them for cause, that each could try the case impartially and without prejudice. We defer to the district court’s credibility determinations. Johnson, therefore, fails to show that these seven prospective jurors were subject to challenge for cause. In addition, Johnson does not show how actual prejudice resulted from the failure to dismiss the seven prospective jurors, of whom six were empanelled and one was dismissed by Johnson using a peremptory strike, and Minnesota courts have rejected automatically presuming bias on grounds not contained in Minn. R. Crim. P. 26.02, subd. 5. See Anderson, 603 N.W.2d at 356-57 (declining to presume bias when nine empanelled jurors had been victims of crimes similar to that committed by defendant). Finally, Johnson did not object to five of these seven prospective jurors in the district court. Johnson, therefore, fails to satisfy the three-part test applied to juror-bias claims as to all seven prospective jurors.

The postconviction court did not abuse its discretion by summarily denying relief to Johnson on the above claims.

II.

Johnson argues that he was denied effective assistance of appellate counsel in his direct appeal. A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and, therefore, is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). “To establish ineffective assistance of appellate counsel a petitioner must demonstrate that appellate counsel’s performance was objectively unreasonable and that the unreasonable performance prejudiced him.” McDonough v. State, 675 N.W.2d 53, 56 (Minn. 2004)(citing Strickland v. Washington, 466 U.S. 668, 691-92, 104 S. Ct. 2052, 2066-67 (1984)) (other citation omitted). “[A]n attorney acts within the objective standard of reasonableness when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.” Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quotation omitted). There is a strong presumption that an attorney’s performance is reasonable. Id. When an appellant and his attorney disagree over what issues to raise on appeal, it is not ineffective assistance of counsel for the attorney to choose not to pursue issues that, in his or her judgment, would detract from other, more meritorious claims. Id. at 579-80.

Johnson argues that he was denied effective assistance of appellate counsel because his counsel failed to secure the reversal of his convictions and failed to order a transcript of the voir dire until after the time for direct appeal had expired. The failure of Johnson’s appellate counsel to secure a reversal of all of Johnson’s convictions is not ineffective assistance of counsel. And Johnson’s appellate counsel did succeed in obtaining the reversal of one of Johnson’s three convictions. Johnson, 679 N.W.2d at 389. Also, it was not ineffective assistance for Johnson’s appellate counsel to choose not to pursue claims based on the voir dire, and therefore to not request the voir dire transcript, and instead to pursue what were in counsel’s judgment more meritorious claims. In addition, because Johnson’s claims of juror bias lack merit, Johnson is unable to show how the lack of the transcript of the voir dire prejudiced him on direct appeal. Because Johnson fails to show that his appellate counsel’s performance was objectively unreasonable or that it prejudiced Johnson, we conclude that the postconviction court did not err by denying Johnson relief on the claim that he was denied effective assistance of appellate counsel.

Affirmed.