Travis Gregory Kadel, petitioner, Appellant, vs. State of Minnesota, Respondent.

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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010). STATE OF MINNESOTA IN COURT OF APPEALS A10-1408 Travis Gregory Kadel, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed April 5, 2011 Affirmed Stoneburner, Judge Otter Tail County District Court File No. 56K807340 Travis Gregory Kadel, Faribault, Minnesota (pro se appellant) Lori Swanson, Attorney General, St. Paul, Minnesota; and David J. Hauser, Otter Tail County Attorney, Michelle M. Eldien, Assistant County Attorney, Fergus Falls, Minnesota (for respondent) Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Randall, Judge.* * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10. UNPUBLISHED OPINION STONEBURNER, Judge In this pro se appeal from an order denying his petition for postconviction relief, appellant argues that the postconviction court erred by concluding that his claim of ineffective assistance of trial counsel is procedurally barred and that his claim of ineffective assistance of appellate counsel is without merit. Because appellant asserted ineffective assistance of trial counsel on direct appeal, we affirm the determination that the current claim is procedurally barred. We also affirm the decision that appellant s claim of ineffective appellate counsel is without merit. FACTS Appellant Travis Gregory Kadel was convicted in 2007 of first-degree assault and sentenced to 189 months in prison for punching his girlfriend and causing injuries that required facial-reconstructive surgery in which metal plates were permanently placed in her cheekbone and eyebrow. On direct appeal, Kadel s appellate counsel raised several evidentiary issues, and appellant, by pro se supplemental brief, challenged the effectiveness of trial counsel. This court affirmed appellant s conviction. State v. Kadel, A07-1468 (Minn. App. Dec. 9, 2008), review denied (Minn. Feb. 17, 2009). Appellant then filed a pro se petition for postconviction relief, alleging different grounds than he alleged on direct appeal to support his claim of ineffective assistance of trial counsel, and alleging that appellate counsel was ineffective for failing to challenge 2 the effectiveness of trial counsel and failing to challenge sufficiency of the evidence to support a finding of great bodily harm. The district court denied the petition without an evidentiary hearing, concluding that appellant s claim of ineffective assistance of trial counsel is procedurally barred and that his claim of ineffective appellate counsel is without merit. This appeal followed. DECISION When reviewing a postconviction decision, this court will determine whether there is sufficient evidence to support the findings. Pippitt v. State, 737 N.W.2d 221, 226 (Minn. 2007). The postconviction court s factual findings will not be set aside unless clearly erroneous, but its legal determinations are reviewed de novo. Id. The postconviction court s decision will not be overturned unless the postconviction court abused its discretion. Id. It is well settled that when . . . 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. Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions to the Knaffla rule: (1) if a novel legal issue is presented, or (2) if the interests of justice require review. Id. at 502. When postconviction relief is denied as procedurally barred under Knaffla, this court reviews the denial for an abuse of discretion. Powers v. State, 695 N.W.2d 371, 373 74 (Minn. 2005). Because Kadel raised a claim of ineffective assistance of counsel in his direct appeal, and because all of the bases underlying the current claim of ineffectiveness of 3 trial counsel were known at the time of Kadel s direct appeal, and neither of the exceptions to the Knaffla rule apply, the district court did not abuse its discretion by holding that the current claim is procedurally barred. Kadel s claims of ineffective assistance of appellate counsel are based on his assertion that appellate counsel failed to raise issues on appeal that Kadel now asserts should have been raised. Kadel did not raise any of these issues in his supplemental pro se brief on direct appeal, and a claim of ineffective assistance of appellate counsel generally cannot be raised on direct appeal. A strong presumption exists that counsel s performance falls within the wide range of reasonable professional assistance. Pierson v. State, 637 N.W.2d 571, 579 (Minn. 2002) (quoting Dukes v. State, 621 N.W.2d 246, 252 (Minn. 2001)). In evaluating a claim of ineffective assistance of counsel, appellate courts do not review matters of trial strategy. State v. Doppler, 590 N.W.2d 627, 633 (Minn. 1999). To demonstrate ineffective assistance of counsel, [petitioner] must show that his counsel s performance fell below an objective standard of reasonableness and that a reasonable probability exists that, but for his counsel s unprofessional errors, the result of the proceedings would have been different. Davis v. State, 784 N.W.2d 387, 391 (Minn. 2010) (citing Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). Kadel has presented his claims of ineffective assistance of appellate counsel only in the form of argumentative assertions without factual support. And Kadel s counsel in direct appeal ha[d] no duty to include claims which would detract from other more meritorious issues. Id. (quoting Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)). The 4 postconviction court correctly concluded that Kadel failed to demonstrate that his appellate counsel s performance fell below an objective standard of reasonableness or that the outcome would have been different had counsel raised the additional issues asserted by Kadel. Affirmed. 5

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