A06-1540

Juan White Corona, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed September 18, 2007

Affirmed

Willis, Judge

Cass County District Court

File No. K9-94-0463

Juan White Corona, OID #179543, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (pro se appellant)

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

Earl E. Maus, Cass County Attorney, Cass County Courthouse, P.O. Box 3000, 300 Minnesota Avenue, Walker, MN 56484 (for respondent)

Considered and decided by Willis, 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

WILLIS, Judge

Pro se appellant appeals from the district court’s denial of his second petition for postconviction relief after a direct appeal, arguing that prosecutorial misconduct, newly discovered evidence, ineffective assistance of counsel, and an erroneous jury instruction warrant a new trial. We affirm.

FACTS

On September 29, 1994, appellant Juan White Corona was convicted by a jury of second-degree murder for shooting and killing his girlfriend’s brother in March 1994. He was sentenced to 312 months’ imprisonment. Corona appealed to this court, arguing that the evidence at trial was insufficient to support his conviction. This court affirmed the conviction, and the supreme court denied his petition for further review. State v. Corona, No. C0-95-276, 1995 WL 479565 (Minn. App. Aug. 15, 1995), review denied (Minn. Sept. 20, 1995).

In August 2000, Corona filed a pro se petition for postconviction relief, arguing “judicial biasness,” “prosecutorial misconduct,” and “attorney-client conflict.” The district court denied the petition on the ground that Corona’s claims were known or should have been known at the time of his direct appeal and therefore he was required to have raised them then. Corona appealed to this court, arguing (1) that he was unlawfully denied counsel for the postconviction proceedings and (2) that the district-court judge who reviewed his petition for postconviction relief should have recused himself because of public pressure relating to the case. This court affirmed the district court’s denial of Corona’s petition, and the supreme court denied his petition for further review. Corona v. State, C9-00-1927 (Minn. App. July 17, 2001), review denied (Minn. Sept. 14, 2001).

On January 9, 2006, Corona filed a second pro se petition for postconviction relief.[1] The district court summarily denied Corona’s second petition for postconviction relief on the ground that it “fails to raise issues that could not have been raised in the appellant’s direct appeal of his conviction . . . .” Corona appeals.

D E C I S I O N

Corona argues on appeal that the district court abused its discretion when it summarily denied his second petition for postconviction relief. He contends that (1) the prosecutor committed misconduct by referring to the victim’s “Good Character” and describing him as a “‘Happy-go-lucky’ guy who had a ‘calming effect of People’” without allowing appellant to present “rebuttal evidence”; (2) “there is newly discovered evidence, which the State failed to disclose” at trial regarding the victim’s criminal history and prior bad acts; (3) his defense counsel at trial was ineffective because he failed to investigate the victim’s history of violent behavior; and (4) the district court erroneously instructed the jury, for the purpose of his self-defense claim, that he had a duty to retreat from his home. He seeks “a hearing at which Witnesses could be called to testify, and also requests that a Subpoena be issued to produce all records, (criminal and medical) in regards to [the victim’s] history.”

A summary denial of a postconviction petition is reviewed for an abuse of discretion. Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). An evidentiary hearing is required, and a summary denial is therefore an abuse of discretion, only if the petitioner alleges facts that, if proved, would entitle the petitioner to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

Under the rule described in State v. Knaffla, if a petitioner has directly appealed a conviction, any matter raised in the direct appeal, and any claim known to the petitioner at that time but not raised, will not be considered by a court when presented in a subsequent petition for postconviction relief. 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Minn. Stat. § 590.04, subd. 3 (2006). An exception to the Knaffla rule provides that a claim that was known but not raised may be considered if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). Even if the legal basis of the claim was reasonably available, this court may allow substantive review of the claim in limited situations when fairness so requires and when the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal. Id. A denial of postconviction relief based on the Knaffla rule is also reviewed for an abuse of discretion. Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).

Prosecutorial misconduct

The district court rejected, under the Knaffla rule, Corona’s argument that the prosecutor committed misconduct at trial. The state asserts, and we agree, that this argument was available to Corona at the time of his direct appeal and does not fall under the exception to the Knaffla rule. 309 Minn. at 252, 243 N.W.2d at 741. Therefore, the argument is barred, and the district court did not abuse its discretion in so concluding. Even if we were to consider Corona’s prosecutorial-misconduct argument, it does not warrant reversal because he merely makes an assertion without any argument or supporting authority. See State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”).

Newly discovered evidence of the victim’s criminal history

Corona argues next that newly discovered evidence of the victim’s criminal history requires reversal. A new trial based on newly discovered evidence may be granted when an appellant proves

(1) that the evidence was not known to the defendant or his/her counsel at the time of the trial; (2) that the evidence could not have been discovered through due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful; and (4) that the evidence would probably produce an acquittal or a more favorable result.

Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).

Although his argument is somewhat unclear, our interpretation of Corona’s brief is that he claims to have discovered recently that the victim had an “arrest record for crimes of violence,” “[s]ome of which [the victim] had revealed to Appellant in the past,” and that these past crimes “include but are not limited to” (1) the victim attempting to hit his girlfriend with a vehicle; (2) the victim kicking a woman in the face in a fight outside a bar; and (3) the victim assaulting Corona.

At least two of the three incidents were known to Corona at the time of trial. The jury heard evidence of the fact that the victim had assaulted Corona eight years earlier. And Corona concedes that the victim “told Appellant about [the incident outside the bar] himself, at the time it happened.” It is unclear from Corona’s brief whether he claims that the victim was arrested for each of the three incidents, but if the victim was arrested for either of the incidents about which Corona was aware, evidence of those arrests could have been discovered through due diligence before trial.

The only incident that may not have been known to Corona at the time of trial is the victim allegedly attempting to hit his girlfriend with a vehicle. It appears from Corona’s brief that he may have known that the incident occurred but discovered only recently that the victim “had an arrest record” related to the incident. But even if neither Corona nor his defense counsel knew about the incident at the time of trial, which would satisfy the first of the four elements described in Rainer, at least two of the other three elements are not satisfied here. Corona has not established that evidence of any arrest in connection with the incident could not have been discovered through due diligence before trial. If he was aware of the incident, the fact that the victim was arrested in connection with the incident could have been discovered with minimal effort. The second element is therefore not met here. And regarding the fourth element, although Corona asserts that the evidence would have supported his self-defense claim and allowed him to rebut character evidence that was complimentary to the victim, he does not establish that the evidence would “probably” have produced a more favorable result. As we concluded on direct appeal, there is ample evidence in the record to support Corona’s conviction. Further, even though the jury heard evidence that the victim had assaulted Corona in the past, it convicted Corona. It is unlikely that hearing evidence that the victim had also assaulted his girlfriend would have persuaded the jury to acquit Corona of the murder.

Corona also argues that the prosecution had an affirmative duty to disclose evidence of the victim’s criminal history and that the state’s failure to do so violated Brady v. Maryland and denied him a fair trial. See 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963). But unlike the appellant in Brady, Corona offers no evidence that the prosecution knew about or suppressed the evidence in question. 373 U.S. at 84, 83 S. Ct. at 1195. He merely presumes that because the victim “had been arrested and detained in Cass County on at least one occasion,” the prosecutor here knew about and withheld evidence of the victim’s criminal record. His presumption is unsupported by the record.

Ineffective Assistance of Counsel

Corona argues next that his defense counsel was ineffective because he “failed to investigate” the victim’s history of “violence against people.” The state asserts that the argument is barred by the Knaffla rule. If Corona was not aware of the victim’s “arrest record from crimes of violence” at the time of his direct appeal, however, the basis for the ineffective-assistance-of-counsel argument that Corona makes here was not available to him at the time of his direct appeal and is not barred by Knaffla.

But even if Corona’s ineffective-assistance argument is not barred by Knaffla, it does not warrant reversal. An appellant claiming ineffective assistance of counsel must “affirmatively prove that his counsel’s representation ‘fell below an objective standard of reasonableness’ and ‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 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 v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).

Corona does not provide authority for or even make the assertion that his defense counsel’s performance fell below an objective standard of reasonableness when he allegedly did not investigate the victim’s criminal history. See Modern Recycling, Inc., 558 N.W.2d at 772 (“An assignment of error based on mere assertion and not supported by any argument or authorities in appellant’s brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.”). And further, we are not persuaded that there is a reasonable probability that defense counsel’s discovery of the victim’s “arrest record” would have resulted in a different outcome at trial, particularly when the jury heard evidence of the most relevant of the victim’s violent acts.

Jury instruction regarding appellant’s duty to retreat

Corona argues finally that the district court committed plain error by instructing the jury that he had a duty to retreat from his home when acting in self-defense. He argues that State v. Glowacki, 630 N.W.2d 392 (Minn. 2001), holds that there is no duty to retreat from one’s home, and State v. Baird, 654 N.W.2d 105 (Minn. 2002), provides that Glowacki should be given retroactive application.

But if a defendant’s conviction is final when a new rule of law is announced, the defendant may not avail himself of the new rule. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). And a case is final when a “‘judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed . . . .’” Id. (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708 (1987)) (alteration in original).

The supreme court denied Corona’s petition for further review on September 19, 1995, and his conviction became final 90 days later (the date on which the time elapsed for filing a petition for certiorari review of his conviction in the U.S. Supreme Court). See Spears v. State, 725 N.W.2d 696, 700 (Minn. 2006). Glowacki was not decided until 2001, well after Corona’s conviction became final. He is therefore not entitled to a new trial on the ground that the district court gave a jury instruction contrary to the holding in Glowacki. He does not argue that the instruction was otherwise improper at the time of trial.

Because none of the arguments in Corona’s second petition for postconviction relief required the district court to hold an evidentiary hearing and because those of his arguments that are not barred by the Knaffla rule lack merit, we conclude that the district court did not abuse its discretion by denying Corona’s second petition for postconviction relief.

Affirmed.

[1] Corona also petitioned the district court and then the supreme court to appoint counsel for his postconviction proceeding, but his petition was denied in both instances. Under Minnesota law, a person who has already had representation by a public defender in a direct appeal from a criminal conviction is not entitled to representation by a public defender in a postconviction proceeding. See Minn. Stat. § 611.14(2).