State of Minnesota, Respondent, vs. Abdallah A. Osman, Appellant.

Minn. Stat. § 480 A. 08, subd. 3 (2000).

State of Minnesota,
Respondent,
 
vs.
 
Abdallah A. Osman,
Appellant.

Filed May 1, 2001

Affirmed

Peterson, Judge

Hennepin County District Court

File No. 984996

Mike Hatch, Attorney General, 525 Park Avenue, Suite 500, St. Paul, MN  55103-2106; and

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

Mark D. Nyvold, Special Assistant State Public Defender, 46 East 4th Street, Suite 1030, St. Paul, MN  55101 (for appellant)

            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.

PETERSON, Judge

            A jury convicted appellant Abdallah Adam Osman of attempted second-degree murder and first and second-degree assault, and he was sentenced to an executed term of 163 months in prison.  Osman appealed, arguing that he was entitled to a new trial based on prosecutorial misconduct.  This court affirmed.  State v. Osman, 2000 WL 228418 (Minn. App. Feb. 29, 2000), review denied (Minn. Apr. 25, 2000).

            Osman filed a petition for postconviction relief, claiming ineffective assistance of trial and appellate counsel.  The district court denied the petition without conducting an evidentiary hearing.  We affirm.

            This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction court's findings and will affirm the postconviction court's decision absent an abuse of discretion.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

A petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts which would warrant a reopening of the case.

State v. Warren, 592 N.W.2d 440, 449 (Minn. 1999) (quotation omitted).

An evidentiary hearing on a petition for postconviction relief is not required unless the petitioner alleges facts that, "if proved by a fair preponderance of the evidence, would entitle [the petitioner] to the requested relief."  Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996) (citations omitted); see also Townsend v. State, 582 N.W.2d 225, 229 (Minn. 1998) (applying rule to ineffective assistance of counsel claim).

To prevail on a claim of ineffective assistance of counsel, [defendant] must affirmatively show that his attorney's representation fell below an objective standard of reasonableness and so prejudiced him that there is a reasonable probability that, but for counsel's errors, the trial outcome would have been different.

State v. Anderson, 603 N.W.2d 354, 357 (Minn. App. 1999) (citation omitted), review denied (Minn. Mar. 14, 2000).

            Osman argues that his trial counsel was ineffective in failing to request a competency hearing.  The record supports the district court's finding that Osman's mental competence to proceed was never an issue before, during, or after trial.  Osman has not alleged any facts that would support a finding that he was incompetent.

            Osman also argues that trial counsel was ineffective in failing to move for a mistrial based on a note from the jury to the trial court, sent during the first morning of deliberations, stating that a juror saw two witnesses talking together after the trial ended.  In response, pursuant to the parties' agreement, the trial court reinstructed the jury to limit their deliberations to evidence in the record and admonished them to not consider any other information.  A Schwartz hearing is not required on a claim of juror misconduct unless the defendant submits sufficient evidence that, if unchallenged, would warrant the conclusion of jury misconduct.  State v. Rainer, 411 N.W.2d 490, 498 (Minn. 1987).  There is no evidence that any jurors heard anything that was said by the two witnesses talking together after trial, and Osman does not allege any facts that would warrant the conclusion that the observation of the two witnesses talking together influenced the jury's verdict.[1]

            Osman next contends that his appellate counsel was ineffective in failing to raise the ineffective assistance of trial counsel argument.  Because the facts alleged by Osman are insufficient to prove his ineffective assistance of trial counsel claim, his claim against appellate counsel automatically fails.  Sullivan v. State, 585 N.W.2d 782, 784 (Minn. 1998).

            In a pro se supplemental brief, Osman argues that he is entitled to postconviction relief because the district court failed to provide an interpreter.  The record, however, supports the district court's finding that Osman spoke English well enough to understand the proceedings.

            Osman also raises issues regarding the exclusion of defense evidence and witness credibility.  These issues were or should have been known to Osman at the time of direct appeal.  A defendant who has already made a direct appeal is barred from seeking postconviction review of all matters that were known or should have been known at the time of the appeal.  Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998).  Osman could have raised these issues on direct appeal in a pro se supplemental brief.  See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (when appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims that would detract from other more meritorious issues; a dissatisfied appellant should raise additional claims in a supplemental brief).

            Regarding the merits of the evidentiary issues, Osman has not alleged any facts that would support a conclusion that the district court erred by excluding the testimony of the defense witnesses.  Nor has he alleged any facts that would support a conclusion that the excluded testimony would have affected the outcome of the trial.  See State v. Lee, 494 N.W.2d 475, 479 (Minn. 1992) (defendant must make an offer of proof showing the nature of the evidence excluded so that appellate court can determine if it was error to exclude the evidence and whether the error, if any, was prejudicial).  Osman also argues that the testimony of Dave Anderson and Diane Brutger was incredible.  But it is the jury's function to determine the weight and credibility of individual witnesses.  State v. Oates, 611 N.W.2d 580, 586 (Minn. App. 2000).

            The district court did not err by denying Osman's petition for postconviction relief without an evidentiary hearing on the ineffective assistance of trial and appellate counsel claims or on the issues raised in his pro se brief.  Osman raised several other issues in his petition for postconviction relief that he does not address on appeal.  Those issues are deemed waived.  Scruggs, 484 N.W.2d at 24 n.1.

            Affirmed.

[1] In a pro se supplemental brief, Osman asserts that the jury overheard conversations between witnesses.  But a hearing is not required in a postconviction proceeding based on mere "argumentative assertions without factual support."  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).