Opinion
A22-1739
09-27-2023
Brock William Fredin, petitioner, Appellant, v. State of Minnesota, Respondent.
Ramsey County District Court File No. 62-CR-17-3156
Considered and decided by Wheelock, Presiding Judge; Larkin, Judge; and Halbrooks, Judge. [*]
ORDER OPINION
Michelle A. Larkin Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant Brock Fredin challenges the district court's denial of his petition for postconviction relief Fredin argues that the district court abused its discretion by denying his petition for postconviction relief without an evidentiary hearing.
2. Respondent State of Minnesota charged Fredin with gross-misdemeanor stalking by mail and misdemeanor violation of a harassment restraining order (HRO) in 2017. A jury found Fredin guilty of both charges. The district court entered a judgment of conviction for stalking and imposed a 365-day sentence, but it did not enter judgment on the HRO-violation offense. Fredin appealed. Counsel filed an initial brief arguing that the evidence was insufficient to convict Fredin of stalking and that the district court prejudicially erred by giving a no-adverse-inference instruction without Fredin's consent. After the Minnesota Supreme Court held that the stalking statute was facially overbroad in In re Welfare of A.J.B., 929 N.W.2d 840 (Minn. 2019), this court granted counsel's motion to stay the appeal to permit Fredin to pursue postconviction proceedings. State v. Fredin, No. A19-0085, 2020 WL 1983050, at *2 (Minn.App. Apr. 27, 2020), rev. denied (Minn. July 23, 2020). The district court vacated the stalking conviction and entered a judgment of conviction and imposed a sentence for the HRO-violation offense. Id.
3. After this court reinstated the appeal, Fredin filed a pro se supplemental brief arguing that (a) the HRO-violation statute, Minn. Stat. § 609.748, subd. 6 (2016), is unconstitutionally overbroad and vague as applied in violation of the First Amendment; (b) the district court erred by denying his request for a "fighting words" jury instruction to support his First Amendment defense; and (c) the district court violated his due-process rights by granting his privately retained counsel's motion to withdraw from representation before sentencing. Fredin also argued that the district court's 365-day sentence was vindictive, and that he was deprived of his right to an impartial judge.
Fredin was represented by an assistant public defender at sentencing.
In a reply brief, Fredin argued that the prosecutor committed a Brady violation by failing to disclose exculpatory emails between the Minneapolis and St. Paul City attorneys that show that the prosecution was vindictive and acted in retaliation for his exercise of his First Amendment rights.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, regardless of the good or bad faith of the prosecution).
4. In a nonprecedential opinion, we affirmed Fredin's conviction for violating the HRO, concluding that (a) although the district court erred by reading a no-adverse-inference instruction to the jury "without first obtaining Fredin's personal consent on the record . . . the error was not plain and, even if it was, it did not affect his substantial rights"; (b) Fredin forfeited his as-applied challenge to the constitutionality of the HRO-violation statute because he did not raise the constitutional issue at trial and inadequately briefed the issue on appeal; (c) the district court did not err by denying his requested jury instruction because the instruction is a defense to the crime of stalking, which is moot because his stalking conviction was vacated; (d) Fredin failed to show actual bias by the district court judge in sentencing; (e) Fredin's challenge to the 365-day sentence for stalking is moot because the conviction was vacated; and (f) the district court did not err by granting counsel's motion to withdraw based on "an irreconcilable breakdown in the attorney-client relationship." Id. at *2-6. The supreme court denied Fredin's petition for further review on July 23, 2020.
5. On July 19, 2022, Fredin filed a petition for postconviction relief alleging (a) ineffective assistance of trial and appellate counsel, (b) prosecutorial misconduct, (c) a Brady violation involving the state's failure to disclose exculpatory emails, (d) juror bias, (e) judicial bias, (f) district court error in denying his request for a "fighting words" jury instruction, (g) Minn. Stat. § 609.748 is unconstitutionally overbroad and void for vagueness, (h) newly discovered evidence, (i) witness perjury, and (j) unfair media coverage. The state responded that Fredin's claims are procedurally barred because they were either raised or known at the time of his direct appeal.
Although Fredin referenced ineffective assistance of his appellate counsel in his petition, his argument only identified examples of unreasonable representation by trial counsel.
Fredin also filed a motion to disqualify the district court judge who presided over his trial. The chief judge did not rule on this motion but presided over the postconviction proceeding because the trial judge was not available. Fredin also sought to remove the chief judge. The chief judge found no affirmative showing of prejudice and declined to disqualify himself.
6. The district court denied postconviction relief without an evidentiary hearing, concluding that the petition and "files and records of this proceeding conclusively show" that he is not entitled to relief.
7. If 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." State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). The Knaffla-bar also applies to postconviction claims that should have been known at the time of the direct appeal. Reed v. State, 793 N.W.2d 725, 729-30 (Minn. 2010); see also Minn. Stat. § 590.01, subd. 1(2) (2022) ("A petition for postconviction relief after a direct appeal has been completed may not be based on grounds that could have been raised on direct appeal of the conviction or sentence."). There are two exceptions to this rule: "if the claim presents a novel legal issue" or "if fairness requires review of the claim and petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal." Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005). Appellate courts review a denial of a postconviction petition based on the Knaffla-bar for an abuse of discretion and will not reverse the decision "unless the postconviction court exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings." Reed, 793 N.W.2d at 729. A district court "shall" hold an evidentiary hearing on a postconviction petition "[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 (2022). Appellate courts review a decision to grant or deny an evidentiary hearing for an abuse of discretion. Caldwell v. State, 853 N.W.2d 766, 770 (Minn. 2014).
8. Fredin argues that the state violated Brady and committed prosecutorial misconduct by failing to disclose exculpatory emails from the Minneapolis and St. Paul city attorneys that he contends show the state fabricated evidence to build a criminal case against him in retaliation. He asserts as well that the state's witness committed perjury, and the district court abused its discretion by failing to grant an evidentiary hearing to review his newly-discovered-evidence claim. The district court concluded that Fredin did not meet his burden under the newly-discovered-evidence test articulated in Rainer v. State, because "there is nothing indicating [that the emails] would have led to an acquittal or a more favorable result." 566 N.W.2d 692, 695 (Minn. 1997). The district court also concluded that the issue was Knaffla-barred because Fredin "raised these arguments" in his reply brief on direct appeal so the claims were "raised, known, or should have been known" and are procedurally barred. Based on our review of the record and of Fredin's arguments on direct appeal, the district court did not abuse its discretion in concluding that the evidence does not meet the newly-discovered-evidence test and is Knaffla-barred.
Fredin references Minn. Stat. § 590.01, subd. 4(b)(2) (2022), the newly-discovered-evidence exception to the two-year time limit for filing a postconviction petition and argues that the statutory language is overbroad and unconstitutional. But the state did not argue, and the district court did not conclude, that Fredin's petition was untimely; the district court denied the petition because the claims were procedurally barred by Knaffla. We therefore decline to consider this argument.
9. Fredin next argues that the district court judge who presided at trial deprived him of his due-process right to an impartial judge by allowing his retained attorney to withdraw and by engaging in ex parte communications with the prosecutor and an investigator, among other complaints. Fredin challenged the district court judge's partiality in his direct appeal, and this court concluded that Fredin failed to show actual bias. This claim is therefore also barred by Knaffla as well as by the law-of-the-case doctrine. Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008) ("Because on direct appeal we explicitly considered, addressed, and made a holding regarding Lynch's current postconviction claim, we conclude that in addition to being barred by Knaffla, the claim is barred by the doctrine of 'law of the case.'"). To the extent Fredin advances additional arguments related to the district court judge's bias, he has not shown that those claims were previously unknown to him such that they could not have been raised in his direct appeal. The district court did not abuse its discretion by denying this claim for postconviction relief.
10. Fredin argues that two jurors who deliberated his guilt were biased against him. The district court concluded that this claim was Knaffla-barred because it was known and could have been raised in his direct appeal. The court also concluded that the claim failed on the merits because Fredin did not show that the jurors were actually biased. On appeal, Fredin appears to rely on the doctrine of implied bias. "Implied bias is a bias that is conclusively presumed as a matter of law" and assumes "certain relationships or experiences create a mindset that cannot be changed or set aside." State v. Fraga, 864 N.W.2d 615, 621 (Minn. 2015). In Fraga the supreme court declined to extend the doctrine of implied bias to circumstances other than those described in Minn. R. Crim. P. 26.02, subd. 5(1), but concluded that the juror was actually biased because he knew about the case, had read about it, and discussed the details with friends and family. Id. at 622-24. Fredin's brief does not identify any responses the two jurors made to questions during voir dire that demonstrate actual bias. And we will not extend the doctrine of implied bias to the circumstances Fredin describes because the supreme court has expressly declined to do so. See State v. McCormick, 835 N.W.2d 498, 510 (Minn.App. 2013) (describing court of appeals role as "an error-correcting court" as limited to finding the law and applying it to the facts), rev. denied (Minn. Oct. 15, 2013).
11. Moreover, we are satisfied that the district court did not abuse its discretion by concluding that the claim is Knaffla-barred. Fredin's pro se supplemental brief in his direct appeal referenced that "the jury was suspiciously comprised of several First Amendment experts," in a case where he "was not afforded the right to present a First Amendment defense," showing he was aware of this claim at the time of his direct appeal. We also note that, now that Fredin's stalking conviction is reversed, arguments related to his First Amendment defense are moot. See Fredin, No. A19-0085, 2020 WL 1983050, at *5.
12. Fredin argues that the HRO-violation statute, Minn. Stat. § 609.748, subd. 6, is unconstitutionally overbroad and void for vagueness. Although Fredin raised this issue in his postconviction petition, the district court's order does not appear to have addressed this claim. Nevertheless, the claim is both Knaffla-barred and barred by the law-of-the-case doctrine because it was raised on direct appeal, and we have already concluded that Fredin forfeited this argument because he did not challenge the constitutionality of the statute in district court. See Fredin, No. A19-0085, 2020 WL 1983050, at *4; see also Lynch, 749 N.W.2d at 321.
13. Fredin argues that his trial and appellate counsel were ineffective. The claims involving trial counsel relate to counsel failing to (a) raise the First Amendment defense, (b) file a motion for sanctions against the prosecutor's office for failing to disclose exculpatory evidence, (c) file post-verdict motions, (d) identify sentencing issues, and (e) return his file when he requested it. Fredin does not identify any examples of appellate counsel's unreasonable representation, nor did he do so in his petition for postconviction relief. Fredin's claims involving ineffective assistance of appellate counsel are, therefore, not properly before this court. See Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (noting that a claim of ineffective assistance of appellate counsel that does not identify the specific issue about which appellate counsel should have claimed error will not be considered by the appellate court); see also State v. German, 929 N.W.2d 466, 477 (Minn.App. 2019) ("Arguments are forfeited if they are presented in a summary and conclusory form, do not cite to applicable law, and fail to analyze the law when claiming that errors of law occurred.").
Minn. R. Prof. Conduct 1.16 governs the return of a client's papers and property upon termination of representation. The supreme court is vested with the exclusive authority to supervise and discipline lawyers. Minn. Stat. § 480.05 (2022). Because this court does not have the authority to supervise and discipline lawyers, we do not address Fredin's arguments concerning the return of his files.
14. In his reply brief, Fredin references pending discipline matters involving trial counsel as newly discovered evidence of ineffective assistance of counsel. But the recent discovery of a discipline matter involving former counsel was not necessary to support the examples of ineffective assistance of counsel regarding the failure to file motions and identify issues.
15. The district court addressed Fredin's claims involving trial counsel and concluded that they were Knaffla-barred. We agree. Fredin's direct appeal was stayed to allow him to pursue postconviction relief from the district court. Our order did not limit the scope of the remand to a particular issue. Fredin knew, or should have known, of the claims involving trial counsel's alleged deficiencies in failing to file the identified motions at the time of his direct appeal and initial postconviction proceeding. And Fredin has not shown that the claims are novel or that fairness requires this court to review the claims. The claims are, therefore, Knaffla-barred.
16. Fredin argues that the state violated his due-process rights by its "blatant manipulation of media coverage," which led to the "false charges" against him and impacted the jury's decision-making process, and that a Schwartz hearing is necessary. Fredin's postconviction petition references a City Pages article and numerous tweets "by and through the Minneapolis City Attorneys' Office" that contributed to errors at trial requiring a Schwartz hearing to "assess the impact of prejudicial media coverage on individual jurors." The district court's order denying postconviction relief did not expressly address any argument about the media coverage but denied his motion for a change of venue.
Fredin filed a separate motion for a change of venue of the postconviction proceedings to Traverse County. Fredin's reasons for seeking a change of venue are based on allegations of unfairness and do not appear to have been based on media coverage regarding his case. The district court denied the motion because none of the circumstances for a change of venue under Minn. R. Crim. P. 25.02 exist. Fredin does not raise the denial of the change of venue motion in this appeal.
17. Exposure to potentially prejudicial material, such as news articles regarding a case, can warrant a Schwartz hearing. State v. Usee, 800 N.W.2d 192, 201 (Minn.App. 2011). Although the district court did not squarely address Fredin's argument that a Schwartz hearing is necessary, the declarations and attachments Fredin submitted to the district court in support of his memorandum show that he was aware of the media coverage at the time of his direct appeal and first postconviction proceeding. The issue is therefore also Knaffla-barred.
18. In sum, the district court did not abuse its discretion by denying Fredin's postconviction claims because the claims were either raised and decided in his direct appeal or were known and could have been raised either on appeal or in his initial petition for postconviction relief. Because the record conclusively shows that Fredin was not entitled to relief, the district court did not abuse its discretion by denying postconviction relief without an evidentiary hearing.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel. --------- Notes: [*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.