This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-97-362

Eric Dion Davis,

petitioner, Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 21, 1997

Affirmed

Lansing, Judge

Ramsey County District Court

File No. K6943801

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, Ramsey County Government Center West, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102 (for respondent)

Mark D. Nyvold, Suite 654, 386 North Wabasha Street, St. Paul, MN 55102 (for appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.

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

LANSING, Judge

In an appeal from denial of a postconviction petition without a hearing, we affirm. A hearing was not required because the claim of ineffective assistance of trial counsel was waived when it was not raised in the direct appeal, the claim of ineffective assistance of appellate counsel is insufficient to warrant a hearing, and the appointment of a state public defender for an indigent postconviction petitioner is not required when the public defender has already represented the petitioner in a direct appeal.

FACTS

A jury convicted Eric Davis of first degree criminal sexual conduct, second degree assault, and possession of a short-barreled shotgun. Davis challenged his conviction on direct appeal and this court affirmed the conviction for criminal sexual conduct and possession of the shotgun, but vacated the assault because it was a lesser included offense. State v. Davis, 546 N.W.2d 30 (Minn. App. 1996).

Davis filed a pro se petition for postconviction relief, alleging ineffective assistance of trial counsel for failure to cross-examine the victim. He moved for appointment of the state public defender to assist him. He later amended his petition to allege ineffective assistance of appellate counsel for failure to raise the claim of ineffective trial counsel in his direct appeal. The district court denied Davis's petition for postconviction relief without holding an evidentiary hearing, and Davis now appeals.

D E C I S I O N

This court reviews a postconviction proceeding under an abuse of discretion standard to determine only whether sufficient evidence exists to support the postconviction court's findings. Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (citing Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992)). An evidentiary hearing is not required unless facts are alleged which, if proven, would entitle petitioner to relief. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).

I

When a direct appeal has been taken in a criminal case, issues raised in that appeal or claims known, but not raised, will not be considered in a petition for postconviction relief. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see also Minn. Stat. § 590.04, subd. 3 (1996) (postconviction statute). The supreme court has extended the Knaffla bar to claims for ineffective assistance of trial counsel. Hale v. Minnesota, 566 N.W.2d 923, 926 (Minn. 1997). Thus, postconviction claims of ineffective trial counsel assistance are "generally precluded if known at the time of direct appeal." Russell, 562 N.W.2d at 673 (quoting Black v. State, 560 N.W.2d 83, 85 (Minn. 1997)). Preclusion does not apply if the ineffective assistance claim relies on facts not evident on the face of the record. Black, 560 N.W.2d at 85 n.1. In limited situations, when fairness requires, substantive review may be extended to issues that were known at the time of the direct appeal. Russell, 562 N.W.2d at 672.

Davis's claim of ineffective assistance of trial counsel is that his attorney failed to cross-examine the victim at trial. Obviously Davis knew at the time of his direct appeal that his trial attorney had not cross-examined the victim. In fact, the primary issue in his direct appeal was the district court's refusal to allow impeachment of the victim through sexual history evidence. Although the cross-examination issue is not identical, it is a related credibility issue. Neither Davis nor his appellate attorney raised the trial counsel's failure to cross examine as an issue. Davis's attorney on appeal was not the same attorney who represented him at trial and thus the errors of the trial attorney were subject to an independent view prior to the appeal.

The decision not to cross examine is clearly established on the record and would not reasonably be overlooked. The specific areas that Davis alleges his trial counsel should have inquired into were where the sexual assault first began, and why, if the victim was hit on the head with a shotgun, no one commented about an injury to her head. The alleged inconsistencies in the victim's statements were fully explored in the testimony of police officers and specifically emphasized in defense counsel's closing argument. This is not the type of claimed error that would be amplified by additional fact-finding at an evidentiary hearing. Thus, Davis's claim of ineffective assistance of trial counsel has no unusual attributes that warrant a delayed appeal and his claim was effectively waived when it was not raised in the direct appeal. See Robinson v. State, 567 N.W.2d 491, 494 (Minn. 1997) (stating rule that ineffective assistance of counsel claim for failure to elicit testimony barred when claim known at time of direct appeal unless claim needs additional fact development for adequate review).

II

Davis also alleges a claim of ineffective assistance of appellate counsel. Although we agree that this claim could not have been known at the time of the direct appeal, we conclude that the district court did not abuse its discretion in denying the evidentiary hearing because the petition does not allege facts that would entitle Davis to relief. See Hodgson, 540 N.W.2d at 517 (hearing not required unless disputed facts, if proved, warrant relief). Davis's claim of ineffective assistance of appellate counsel is grounded on the same failure to cross-examine the victim that he asserted in his claim for ineffective assistance of trial counsel. Davis claims that because his appellate counsel did not raise this issue in the direct appeal he was denied effective assistance of appellate counsel.

A petition claiming ineffective assistance of counsel must point to errors in the lawyer's performance that are so serious that the lawyer failed to function as the "counsel" guaranteed the defendant by the Sixth Amendment. Fox v. State, 474 N.W.2d 821, 826 (Minn. 1991) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In addition, the petitioner must demonstrate that the deficient performance prejudiced the defense. Id. To show prejudice the petitioner must present a reasonable probability that, but for the counsel's unprofessional errors, the result would have been different. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

Davis has failed to allege facts in his petition that satisfy either Strickland prong. The decision not to raise a claim of ineffective trial counsel in the direct appeal is an objectively reasonable tactical decision. Hodgson, 540 N.W.2d at 518 (whether counsel's performance deficient measured by objective standard of reasonableness); State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993) (denying review of trial counsel's tactical decision on cross-examination). Davis's appellate counsel could reasonably have determined not to raise an ineffective trial counsel issue because it "would detract from other * * * meritorious issues." Black, 560 N.W.2d at 86.

On the second Strickland prong, Davis has not demonstrated prejudice in the failure to raise the issue in the direct appeal. Whether trial counsel should have directly propounded questions to the victim on whether she made inconsistent statements on where the assault began or why no one observed a head injury is certainly subject to reasonable judgment. Even assuming that such questions should have been asked, it was surely a tactical decision for the attorney not to ask the emotionally upset victim, crying on the witness stand, and to instead bring out the victim's allegedly inconsistent statements through other witnesses. Davis has failed to point to evidence that would demonstrate that his appellate counsel acted unreasonably or that the outcome would have been different had appellate counsel raised an ineffective assistance of trial counsel claim in the direct appeal. The postconviction court's decision to deny relief without an evidentiary hearing was appropriate.

III

Davis's final allegation is that the postconviction court erred when it failed to rule on his motion for appointment of counsel to assist with the postconviction proceedings. The state must appoint a public defender when a petitioner appeals a conviction or when a person pursues a postconviction proceeding but has not already directly appealed the conviction. Minn. Stat. § 611.18 (1996). But the postconviction relief statute makes explicit that counsel must be appointed on behalf of indigent defendants only when the defendant "has not already had a direct appeal of the conviction." Minn. Stat. § 590.05 (1996). Because Davis has already appealed his conviction, and neither the postconviction statute nor any other statutory source requires the district court to make findings explaining the denial of a request for postconviction relief, the postconviction court's failure to rule on this issue or appoint counsel was not reversible error. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 1993 (1987) (no federal constitutional right to representation in postconviction proceeding exists when a defendant has had direct appeal).

Affirmed.