Opinion
A20-1406
10-15-2021
David Edward Palmer, petitioner, Appellant, v. State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-17-22612
Considered and decided by Larkin, Presiding Judge; Jesson, Judge; and Bratvold, Judge.
ORDER OPINION
Diane B. Bratvold Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. Appellant David Edward Palmer seeks review of an order denying his petition for postconviction relief. His petition sought to vacate his 2018 convictions for domestic assault-harm and domestic assault-fear under Minn. Stat. § 609.2242 (2018), and domestic assault by strangulation under Minn. Stat. § 609.2247 (2018).
2. The 2018 convictions stem from an incident in September 2017 with Palmer's romantic partner, R.J. After serving the complaint charging the three offenses described above, the state notified Palmer that it would seek an aggravated sentence because a child was present during the incident. Palmer waived his right to a jury trial and, following a bench trial, the district court found R.J.'s testimony credible and found Palmer guilty of all three offenses. The district court also found a child had been present during the incident. The district court convicted Palmer of domestic assault-harm, stated it would not enter a conviction on the other two counts, and sentenced Palmer to 42 months in prison for the domestic assault-harm conviction, an upward departure from the sentencing guidelines. No sentence was imposed on the other two offenses, but the warrant of commitment indicated a conviction for all three offenses.
3. In October 2018, Palmer appealed his judgments of conviction, arguing the evidence was insufficient to support the convictions. Palmer also submitted a pro se supplemental brief where he argued, in part, that the district court, the prosecutor, and his defense attorney committed fraud on the court ("fraud claim") and that his trial attorney provided ineffective assistance of counsel ("ineffective-assistance-of-counsel claim").
4. This court affirmed the judgments in an opinion that summarized the relevant underlying facts and evidence. See State v. Palmer, No. A18-1603, 2019 WL 5304174 (Minn.App. 2019) rev. denied (December 31, 2019) ("Palmer I"). First, we determined the evidence was sufficient to support Palmer's convictions. Id. at *3-5. Second, we determined Palmer's fraud claim failed on its merits. Id. at *5-6. Third, we determined Palmer's ineffective-assistance-of-counsel claim lacked a sufficient record, and we declined to consider it but allowed Palmer to raise the claim in postconviction proceedings. Id.at *6.
5. In June 2020, Palmer filed a pro se petition for postconviction relief, raising claims for fraud and ineffective assistance of counsel for both trial and appellate counsel. Palmer requested an evidentiary hearing.
6. The district court denied Palmer's postconviction petition without a hearing. First, the district court determined Palmer's fraud claim lacked merit and was procedurally barred under State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). Second, the district court determined Palmer's ineffective-assistance-of-counsel claim failed as to both trial and appellate counsel.
7. Palmer seeks review of the district court's order denying postconviction relief. An appellate court reviews the summary denial of postconviction relief for an abuse of discretion. Caldwell v. State, 853 N.W.2d 766, 770 (Minn. 2014).
8. First, we consider Palmer's argument that the district court abused its discretion by rejecting his fraud claim as procedurally barred. "Claims that were raised on direct appeal, or were known or should have been known but were not raised on direct appeal, are procedurally barred." Sontoya v. State, 829 N.W.2d 602, 604 (Minn. 2013) (citing Knaffla, 243 N.W.2d at 741); see also Minn. Stat. § 590.01, subd. 1 (2018). A claim is not Knaffla-barred, however, if "(1) the claim is novel; or (2) the interests of fairness and justice warrant relief." Sontoya, 829 N.W.2d at 604.
9. In the pro se brief filed in his direct appeal, Palmer raised the fraud claim that he later submitted in his postconviction petition. This court rejected the fraud claim on its merits. See Palmer I, 2019 WL 5304171, at *5-6. Thus, we agree with the district court that Palmer's fraud claim is Knaffla-barred, and Palmer does not claim that any exception to the Knaffla bar applies.
10. Second, we consider Palmer's claims that he received ineffective assistance of counsel during trial and in his direct appeal. This court analyzes claims of ineffective assistance of counsel under the test set out in Strickland v. Washington, 466 U.S. 668 (1984). See Nissalke v. State, 861 N.W.2d 88, 93-94 (Minn. 2015) (discussing and applying Strickland). To prevail, a defendant must show two elements. Strickland, 466 U.S. at 687. First, a defendant must show counsel's representation is deficient because it falls below an objective standard of reasonableness. Id. at 688. We presume a counsel's representation is reasonable and generally will not review a lawyer's trial strategy or tactics. State v. Rainer, 502 N.W.2d 784, 788 (Minn. 1993). Second, a defendant must show counsel's deficient representation was prejudicial; prejudice is shown when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A failure on either element is dispositive. Nissalke, 861 N.W.2d at 94.
11. Palmer raises six claims of ineffective assistance of trial counsel, which we discuss in turn. First, Palmer generally argues his trial counsel was ineffective based on strategic decisions, such as failing to investigate R.J.'s "past fabrications" and failing to present evidence that Palmer was sober at the time of the incident. These claims critique trial strategy and therefore do not show deficient performance. "[W]hat evidence to present to the jury, what witnesses to call, and whether to object are part of an attorney's trial strategy which lie within the proper discretion of trial counsel and will generally not be reviewed later for competence." Carridine v. State, 867 N.W.2d 488, 494 (Minn. 2015) (affirming the district court's decision to deny postconviction relief alleging ineffective assistance of counsel because counsel's alleged failures related to trial strategy). Thus, these general claims fail on the first Strickland element.
12. Second, Palmer argues his trial counsel failed to provide him with discovery but cites no legal authority establishing that his trial counsel is obligated to turn over discovery with no request by the defendant. In other words, even if we assume that Palmer's attorney failed to provide discovery, Palmer fails to show his trial counsel's failure was deficient performance. Palmer also fails to satisfy the second Strickland element because he shows no prejudice. Palmer acknowledges the state provided discovery to Palmer's attorney and he later received discovery during postconviction proceedings. Thus, this claim fails on both Strickland elements.
13. Third, Palmer argues his trial counsel coerced him into waiving his Blakely rights to a jury trial on the aggravating factor used at sentencing. To be valid, a defendant's waiver of his right to a jury determination of aggravating factors must be knowing, voluntary, and intelligent. State v. Dettman, 719 N.W.2d 644, 650-51 (Minn. 2006). Here, the transcript shows the district court discussed Palmer's Blakely rights at several hearings. Our review of the hearing transcripts supports the district court's determination that Palmer's waiver was knowing, voluntary, and intelligent. There is no evidence that Palmer's attorney coerced him into waiving his Blakely rights. This claim thus fails on the first Strickland element.
14. Fourth, Palmer argues his trial counsel was ineffective for failing to "challenge the state's evidence before trial," which we understand as an argument that his trial counsel failed to challenge probable cause. Even if we assume Palmer's trial attorney's performance was deficient in this respect, this claim fails on the second Strickland element because Palmer shows no prejudice. As discussed, this court upheld Palmer's convictions for sufficiency of the evidence in his direct appeal. Palmer I, 2019 WL 5304174, at *3-5. Probable cause is largely irrelevant after conviction. See State v. Holmberg, 527 N.W.2d 100, 103 (Minn.App. 1995) (determining a probable-cause argument was irrelevant after conviction because the standard for sufficiency of the evidence to support a conviction "is much higher than probable cause"), rev. denied (Minn. Mar. 21, 1995).
15. Fifth, Palmer argues his trial counsel was ineffective for failing to challenge the entry of multiple convictions. In its postconviction order, the district court found that Palmer is "correct his sentence is not properly reflected by the warrant of commitment." But the district court also stated that Palmer "failed to establish any prejudice resulting from his attorney's actions" because the "bureaucratic error" was corrected by amending the sentencing order. The record supports the district court's determination. As noted in the postconviction order, the warrant of commitment is "a clerical order completed after the sentencing hearing, which the Court does not review." Indeed, this court noted the discrepancy between the district court's pronouncement at sentencing and the warrant of commitment. See Palmer I, 2019 WL 5304174, at *6. As a result of Palmer's postconviction petition, the district court issued an amended sentencing order stating Palmer was convicted of only domestic assault-harm and vacating the other two convictions. Thus, even if we assume Palmer's trial counsel was ineffective for failing to raise the issue, Palmer's claim fails on the second Strickland element.
16. Sixth, Palmer argues his trial counsel was ineffective for failing to object to prosecutorial misconduct when the prosecutor "cried" during closing argument and "begged" the district court to convict him. We have reviewed the state's closing argument and the record does not support this claim. This claim also appears to be Knaffla-barred because it rests on the trial record and was not raised in his direct appeal. See Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).
17. Palmer makes three claims of ineffective assistance by his appellate counsel, who handled his direct appeal. Like our review of trial counsel's performance, we afford appellate counsel wide latitude. Appellate counsel is not obligated "to include all possible claims on direct appeal, but rather [is] permitted to argue only the most meritorious claims." Nunn v. State, 753 N.W.2d 657, 661 (Minn. 2008) (alteration in original) (quotation omitted). And we presume that appellate counsel's "judgment about which issues to raise falls within the wide range of reasonable professional assistance." Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012) (quotation omitted). Counsel "does not act unreasonably" by declining to assert claims that she "could have legitimately concluded would not prevail." Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009).
18. First, Palmer argues his appellate counsel's performance was deficient for failing to challenge the entry of multiple convictions. As discussed above, this error did not prejudice Palmer because it was noted by this court's opinion and the district court amended the warrant of commitment. Thus, this claim fails on the second Strickland element.
19. Second, Palmer argues his appellate counsel was deficient for failing to raise ineffective-assistance-of-trial-counsel claims. Palmer is correct that appellate counsel did not raise these claims, but they were raised in the pro se brief filed in his direct appeal and, after this court declined to decide them, the claims were raised again in postconviction proceedings. We reject Palmer's second claim against his appellate counsel, first, because Palmer is challenging a strategic decision, which we will not review under Strickland. See Nunn, 753 N.W.2d at 661. Second, as discussed above, each of Palmer's ineffective-assistance-of-trial-counsel claims fail. Because Palmer cannot show that his trial counsel was ineffective, his appellate counsel's performance was not deficient for failing to argue the claims.
20. Third, Palmer also argues his appellate counsel was ineffective for failing to inform him about the requirements for filing a pro se brief. Even if we assume Palmer's appellate counsel failed to do so and counsel's performance was deficient, Palmer has failed to show prejudice. Palmer filed a pro se brief in his direct appeal. Thus, this claim fails on the second Strickland element.
21. Finally, Palmer argues the district court erred by denying his petition without an evidentiary hearing. A petitioner is entitled to a hearing "[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 (2020). The district court assumed the truth of Palmer's factual allegations and reasoned his postconviction claims were legally insufficient to grant relief. We agree. See Henderson v. State, 906 N.W.2d 501, 505 (Minn. 2018). We also note that credibility is not an issue because the district court assumed Palmer's factual allegations to be true in rejecting his claims as legally insufficient. See id.
22. In sum, Palmer's fraud claim is procedurally barred under Knaffla and he cannot satisfy the Strickland test for his ineffective-assistance-of-counsel claims related to either trial or appellate counsel. Thus, we conclude the district court did not err by denying Palmer's petition for postconviction relief without an evidentiary hearing.
IT IS HEREBY ORDERED:
1. The district court's order denying postconviction relief 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.