This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1144

 

Ronny Auburn Doran, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed April 18, 2006

Affirmed

Dietzen, Judge

 

Clay County District Court

File No. K7-02-1247

 

Ronny Auburn Doran, OID # 210357, MCF-Faribault, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)

 

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

 

Lisa N. Borgen, Clay County Attorney, Jenny M. Samarzja, Assistant County Attorney, 807 North 11th Street, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)

 

            Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that (1) his trial counsel was ineffective; (2) the trial transcripts were purposely altered by court personnel; (3) the courtroom was improperly closed during trial; (4) the district court committed prejudicial errors during trial; (5) prosecutorial misconduct occurred at trial; and (6) he was entitled to an evidentiary hearing on his petition.  We affirm. 

FACTS

            In June 2002, appellant Ronny Auburn Doran and his wife Kathryn Doran had a heated argument after a day of drinking.  Kathryn went to neighbor Tom Davis’s apartment in an attempt to de-escalate the dispute.   Approximately 20 minutes later, appellant burst into Davis’s apartment wielding a knife.  Appellant immediately cornered Kathryn and held a knife to her throat, shouting, “If you ever try to f--k and run from me, I’ll hunt you down and I’ll f--king kill you.”  Appellant also threatened to kill himself and Davis.  Davis shouted for them to leave his apartment, and when appellant turned his attention to Davis, Kathryn fled the apartment, and appellant followed.

            Officers arrived at appellant’s residence and explained that they were responding to a report that appellant had been in a neighbor’s apartment with a knife.  Appellant refused to cooperate and became physically aggressive toward the officers, requiring the use of non-lethal force.  After appellant was restrained, the officers located the knife described by the victims under the couch where appellant had been sitting. 

            Appellant was charged with first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(a); first-degree burglary in violation of Minn. Stat. § 609.582, subd. 1(c), second-degree assault with a dangerous weapon in violation of Minn. Stat. § 609.222, subd. 1; two counts of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1; and obstruction of legal process in violation of Minn. Stat. § 609.50, subds. 1(2) and 2(2).   

            At trial, respondent called both victims and the police officers who responded to the incident to testify.  Both victims testified to a similar version of events.  Kathryn admitted that she had initially lied to the officers to protect appellant.   Defense counsel called appellant and appellant’s friend, Aaron Jensen, as witnesses.  Appellant testified that the incident did not occur and that the state’s witnesses were lying.  Jensen testified that Kathryn’s version of events had been inconsistent following the incident.  Jensen admitted that he had no personal, first-hand knowledge of the incident.

Following trial, appellant was found guilty on all counts and received consecutive sentences totaling 121 months.  In his direct appeal, appellant, through counsel, challenged his convictions of first-degree burglary and second-degree assault, arguing that the district court erred in its jury instructions.  Appellant’s pro se brief included claims of ineffective assistance of counsel, altered trial transcripts, and an improperly closed courtroom during trial.  This court affirmed the convictions and sentence, but preserved appellant’s pro se issues of ineffective assistance of counsel, altered trial transcripts, and improperly closed courtroom to be pursued in a petition for postconviction relief.  State v. Doran, 2003 WL 22480310, *6 (Nov. 4, 2003), review denied (Minn. Jan 20, 2004). 

In February 2005, appellant petitioned for postconviction relief, arguing that he was entitled to relief on the issues preserved on direct appeal and on new claims of prosecutorial misconduct and trial court errors.  Appellant requested an evidentiary hearing on these claims. 

            The district court summarily denied the petition without holding an evidentiary hearing, concluding that appellant failed to demonstrate ineffective assistance of counsel; that the alleged alteration of transcripts and closed-courtroom arguments had no basis in the record; and that the other claims were procedurally barred because they were known, but not raised, in appellant’s direct appeal. Appellant’s subsequent request for reconsideration of the petition was denied.  This appeal follows. 

D E C I S I O N

 

Petitions for postconviction relief are collateral attacks on judgments, which carry a presumption of regularity and, therefore, cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court will not disturb the decision of a postconviction court unless the court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  This court reviews “a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record” and will not reverse a district court’s findings of fact unless they are clearly erroneous.  Id.  Additionally, conclusions of law are reviewed de novo.  Butala v. State, 664 N.W.2d 333, 338 (Minn. 2003).[1] 

I.

            Appellant raises six issues on appeal.  Appellant argues that the district court erred by denying his petition for postconviction relief on the three issues preserved for a postconviction appeal, i.e., ineffective assistance of counsel, altered trial transcripts, and an improperly closed courtroom. 

            Ineffective Assistance of Counsel

First, appellant argues that he was provided ineffective assistance of counsel at trial because defense counsel failed to make objections and present evidence, to request an omnibus hearing, and to express a conflict of interest.  Respondent contends that appellant’s allegations fail to satisfy the Strickland test for ineffective assistance of counsel. 

            In Strickland v. Washington, the United States Supreme Court established a two-part test to determine whether defense counsel has provided ineffective assistance.  466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).  First, the defendant must demonstrate that counsel failed to provide an objectively reasonable level of representation.  Id. at 687-88, 104 S. Ct. at 2064.  Second, the defendant must demonstrate that, but for the unreasonable representation, the outcome of the proceeding would have been different.  Id. at 694, 104 S. Ct. at 2068.  There is a strong presumption that a counsel’s performance falls within the range of reasonableness, and this court does not find ineffective assistance of counsel unless the defendant was prejudiced as a result of the errors.  State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986). 

            Appellant raises multiple defense-counsel errors, but even assuming that appellant was able to satisfy the first prong of the Strickland test, he presents no evidence to support the second prong, i.e., “that a reasonable probability exists that the outcome would have been different but for counsel’s errors.”  State v. Blanche, 696 N.W.2d 351, 376 (Minn. 2005).  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068). 

Here, the alleged errors would not have affected the outcome, given the overwhelming evidence supporting appellant’s conviction.  See State v. Haglund, 267 N.W.2d 503, 506 (Minn. 1978) (finding no prejudice when evidence overwhelmingly established guilt).  The state called four witnesses, including two police officers, who all testified to a similar version of events directly implicating appellant.  The weapon used in the offenses was found near appellant and was identified as the knife that appellant frequently carries.  The only rebuttal evidence was appellant’s testimony that the other witnesses fabricated their stories and the testimony of appellant’s friend who admittedly had no personal knowledge of the events. 

            Because appellant’s ineffective-assistance-of-counsel argument fails to meet the Strickland test, the district court did not err in denying appellant’s petition for postconviction relief on that claim. 

            Altered Transcripts

            Second, appellant argues that the district court erred in denying his petition for postconviction relief because certain portions of the pretrial and trial transcripts were purposely altered by court personnel.  The alleged alterations include re-ordering the appearance of witnesses, and omissions of words and objections. 

But appellant’s argument is unsubstantiated, and mere allegations with no factual support are insufficient to support this claim, particularly in light of the fact that the transcripts were certified by the reporter as correct.  See Sivertson v. Sims Sec., Inc., 390 N.W.2d 868, 872 (Minn. App. 1986) (certified transcripts provide some indicia of reliability), review denied (Minn. Aug. 20, 1986).  Further, appellant fails to articulate how the alleged alterations prejudiced him or entitled him to relief.  Therefore, the district court did not abuse its discretion in denying appellant’s petition on this claim.  

            Closed Courtroom

            Appellant argues that his constitutional right to a public trial was violated because the courtroom was improperly closed.  But there is nothing in the record that supports his assertion that the public was barred from the courtroom.  The only mention in the record of restrictions on courtroom activity involved defense counsel’s request that witnesses be sequestered.  Moreover, even if appellant could establish error, he has not asserted any prejudice as a result of a closure.  See State v. Bashire, 606 N.W.2d 449, 452 (Minn. App. 2000) (noting that defendant failed to show prejudice as a result of closure), review denied (Minn. Mar. 28, 2000).  Therefore, the postconviction court did not abuse its discretion in finding that the courtroom was not closed to the public. 

II.

Appellant also raises two new arguments on appeal.  Appellant argues that the district court erred in denying his petition for postconviction relief because the district court committed numerous trial errors and the prosecutor engaged in misconduct.  Respondent contends that appellant is barred from raising these arguments under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because appellant should have raised them in his direct appeal. 

            The Knaffla court held that “where a 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.”  Id. at 252, 243 N.W.2d at 741.  This includes all claims that appellant should have known at the time of appeal.  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005).  The two recognized exceptions to this rule involve (1) claims that are so novel that their legal basis was not available on direct appeal, and (2) claims that the petitioner did not “deliberately and inexcusably” fail to raise on direct appeal and fairness requires its consideration.  Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (citation omitted).

            Here, appellant raises a myriad of alleged trial court errors, including misleading jury instructions, improper courtroom disruptions, and erroneous admission of evidence; and allegations of prosecutorial misconduct.  But these alleged errors and misconduct occurred during trial and, thus, were known at the time of direct appeal.  Further, appellant’s claims are not novel, and appellant provides no reasons, other than his pro se status, for the invocation of the fairness exception.  But pro se litigants are generally held to the same standards as attorneys, Liptak v. State, 340 N.W.2d 366, 367 (Minn. App. 1983), and the supreme court has declined to invoke the fairness exception to the Knaffla rule when the appellant provides no adequate reasons for its application.  E.g., Hale v. State, 566 N.W.2d 923, 926-27 (Minn. 1997).  Consequently, appellant is barred from raising these arguments on appeal under Knaffla.

            Regardless, appellant’s arguments are without merit.  We have reviewed the record and conclude that the alleged trial court errors and prosecutorial misconduct constituted either permissible conduct or harmless errors. 

            Because appellant’s claims of trial court errors and prosecutorial misconduct are procedurally barred under Knaffla, and are without merit, the district court did not abuse its discretion by denying appellant postconviction relief on these claims.  

III.

            Appellant argues that the district court abused its discretion by denying his request for an evidentiary hearing because he placed material facts in dispute regarding ineffective assistance of defense counsel, alteration of transcripts, prosecutorial misconduct, and trial court errors that entitled him to a hearing. 

            The district court must grant an evidentiary hearing in a postconviction proceeding “[u]nless 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 (2004).  An evidentiary hearing is necessary when there is a material issue of fact in dispute.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).  “[A]llegations raised in the petition must be more than argumentative assertions without factual support.”  Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998) (quotation omitted). 

            Here, appellant’s ineffective-assistance claim fails as a matter of law because appellant failed to allege facts sufficient to satisfy the Strickland test.  Appellant’s other  postconviction claims are based solely on argumentative assertions without factual support or are procedurally barred.  Consequently, the district court did not abuse its discretion by denying the request for an evidentiary hearing.

            Affirmed.