Alan George Olhausen, Jr., petitioner, Appellant, vs. State of Minnesota, Respondent.

Alan George Olhausen, Jr., petitioner, Appellant, vs. State of Minnesota, Respondent. A05-2391, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2391

 

 

Alan George Olhausen, Jr.,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed October 3, 2006

Affirmed
Klaphake, Judge

 

Cottonwood County District Court

File No. KX-01-13

 

 

Daniel S. Adkins, The Adkins Law Group, 175 Lexington Parkway North, Suite #204, St. Paul, MN  55104 (for appellant)

 

Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

L. Douglas Storey, Cottonwood County Attorney, 1044 Third Avenue, Windom, MN  56101 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Alan George Olhausen, Jr. challenges the decision of the postconviction court dismissing his claims alleging ineffective assistance of trial counsel.  Because these claims were known but not raised in appellant's prior direct appeal, the postconviction court did not abuse its discretion in denying appellant's petition for relief.  We therefore affirm.

D E C I S I O N

            On review, a "postconviction court's decision will not be disturbed absent an abuse of discretion."  Zenanko v. State, 688 N.W.2d 861, 864 (Minn. 2004) (quotation omitted); see Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction petition may be dismissed without a hearing if the court concludes that the petition, files, and record "conclusively show that the petitioner is entitled to no relief."  Minn. Stat. § 590.04, subd. 1 (2004).  The petitioner 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); see Minn. Stat. § 590.04, subd. 3 (2004).

            Here, the postconviction court summarily denied appellant's petition for relief, determining that appellant's claims are barred because they were known but not raised in his direct appeal.  See State v. Olhausen, 681 N.W.2d 21 (Minn. 2004), rev'g 669 N.W.2d 385 (Minn. App. 2003).  Once a direct appeal has 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, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976); see Koskela v. State, 690 N.W.2d 133, 134 (Minn. 2004) (Knaffla rule bars "all claims that the appellant should have known of at the time of direct appeal").  The rule applies to claims of ineffective assistance of trial counsel if additional fact-finding is not necessary to consider the claim on its merits.  See Schleicher v. State, 718 N.W.2d 440, 447-48 (Minn. 2006).

            Here, appellant's claim of ineffective assistance of counsel involves decisions made by his attorney during trial.[1]  In particular, appellant criticizes his attorney's failure to (1) raise the defense of entrapment; (2) call appellant as a witness; (3) call other defense witnesses to attack the credibility of the state's informants; (4) seek adequate jury instructions on the state's burden of proof; (5) seek an instruction on what appellant characterizes as a lesser-included offense of fifth-degree controlled substance crime for distributing a counterfeit narcotic; (6) seek a 50% reduction in his sentence when the evidence supported no more than an attempt to distribute any actual controlled substance; and (7) object to the admission of redacted portions of his tape recorded statements to an undercover officer.  Because all of these claims were known to appellant at the time of his direct appeal, appellant is barred under Knaffla from raising them in this postconviction proceeding.

            Two exceptions to Knaffla exist:  a claim previously known but not raised in a direct appeal may nevertheless be considered in a postconviction proceeding "if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal" or when "fairness so requires [consideration of the claim] and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal."  Doppler v. State, 660 N.W.2d 797, 801-02 (Minn. 2003) (quotation omitted).  Neither of these exceptions applies here:  appellant's claims are not novel, and fairness does not require us to consider claims that his attorney could have raised in his direct appeal, particularly when the same attorney has represented appellant in his direct appeal and in these postconviction proceedings.[2]  Thus, appellant's postconviction claims are procedurally barred as known but not raised in his direct appeal.

            Finally, even if appellant's claims of ineffective assistance of counsel are not barred under Knaffla, those claims would fail on their merits also.  Appellant's postconviction petition fails to allege specific facts to support his claims; "mere argumentative assertions that lack factual support" are not enough to sustain a petition for postconviction relief.  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000); Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  Moreover, several of appellant's claims involve matters of reasonable trial strategy that we do not second-guess or review in hindsight.  See Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003); State v. Jones, 392 N.W.2d 224, 236 (Minn. 1983).

            We therefore affirm the decision of the postconviction court summarily denying appellant's petition for relief.

            Affirmed.

[1] Appellant's postconviction petition also questioned the district court judge's conduct during trial.  On appeal here, appellant does not raise any challenge to the postconviction court's rejection of these claims.

[2] At oral arguments before this court, appellant's attorney conceded that he discussed many of these issues with appellant prior to bringing the direct appeal.  This shows that appellant knew of these issues but deliberately chose not to raise them on direct appeal.