This opinion will be unpublished and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

A05-937

 

 

James D. Pilot, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 2, 2006

Affirmed

Toussaint, Chief Judge

 

Hennepin County District Court

File No. 96040844

 

 

James D. Pilot, MCF – OID # 190627, 5329 Osgood Avenue North, Stillwater, MN 55082-1117 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant James D. Pilot challenges the district court’s summary denial of his November 2004 petition for postconviction relief, in which he requested reversal of his sexual-assault conviction on the grounds that a recently discovered police report proved that he had received ineffective assistance of trial and appellate counsel.  Because the district court did not abuse its discretion by denying appellant’s petition, we affirm. 

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 absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  “The scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings, and a postconviction court’s decision will not be disturbed absent an abuse of discretion.”  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).  The petitioner bears the burden of establishing facts that, if proved by a fair preponderance of the evidence at an evidentiary hearing, would warrant the reopening of the case.  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).  Generally, a postconviction court need not grant a hearing when 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). 

State v. Knaffla held that “where 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.”  309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  This rule applies if the defendant knew or should have known about the issue at the time of appeal, Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005), and applies to ineffective-assistance-of-counsel claims unless an evidentiary hearing is necessary to develop additional facts to explain the attorney’s decisions.  Black v. State, 560 N.W.2d 83, 85 & n.1 (Minn. 1997).  In order to be granted a new trial based on newly discovered evidence, the petitioner bears the burden of proving that he did not know of the evidence at trial, his failure to discover it was not due to a lack of diligence, the evidence is material, and the evidence would probably produce a more favorable result for him on retrial.  Race v. State, 504 N.W.2d 214, 217 (Minn. 1993).   

Here, appellant contends that his trial counsel ineffectively represented him by failing to impeach the victim’s mother with a police report that appellant claims to have recently discovered.  He argues that his appellate counsel inadequately served him by failing to raise the issue on appeal.  We conclude appellant’s claim is barred and did not require additional fact-finding. 

First, appellant’s claim is barred under Knaffla by his failure to raise the police-report issue on direct appeal or in a previous petition for postconviction relief.[1]  It is undisputed that the police report on which appellant based the ineffective-assistance claim was in his counsel’s possession at opening argument.  Appellant knew or should have known about the report at trial, and his failure to raise the issue in his first appeal or in a previous postconviction petition precludes him from doing so now.  See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

Second, appellant’s ineffective-assistance claim is based solely on his counsel’s strategic decision not to impeach a witness; that decision is not subject to appellate review for competency.  See Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (stating that appellate courts generally will not review claims of ineffective assistance of counsel based on trial strategy); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986) (observing that strategic questions such as “[w]hich witnesses to call at trial and what information to present to the jury are questions that lie within the proper discretion of the trial counsel”).  Appellant’s challenge to his counsel’s strategic decisions does not require additional fact finding and is therefore procedurally barred under Knaffla.  Compare Dukes, 621 N.W.2d at 255 (concluding claim was not Knaffla-barred when evidentiary hearing was required to establish whether appellant had consented to attorney's decision to concede appellant's guilt), with Robinson v. State, 567 N.W.2d 491, 494-95 (Minn. 1997) (concluding that all but two of petitioner's ineffective-assistance-of-counsel claims were Knaffla-barred because claims involved issues of trial strategy, while claims involving client-attorney communication required evidentiary hearing).

Finally, as to Pilot’s claim of ineffective assistance of appellate counsel, the supreme court has held that when a claim of ineffective assistance of trial counsel has no legal merit, an appellant may not base a claim of ineffectiveness of appellate counsel on the failure to raise the claim.  Sutherin v. State, 574 N.W.2d 428, 435 (Minn. 1998).

            Affirmed.