The post-conviction court did not abuse its discretion in concluding that appellant's ineffective assistance of appellate counsel claims are procedurally barred on the ground that appellant knew the basis of his claim at the time of his direct appeal.
Considered and decided by the court en banc without oral argument.
The opinion of the court was delivered by: Anderson, Paul H., Justice.
Took no part, Gilbert, J.
David James Doppler seeks review of an order from the Crow Wing County District Court denying his second petition for post-conviction relief. In June 1996, a jury found Doppler guilty of first-degree premeditated murder. Doppler filed a direct appeal with this court, but asked that his case be remanded for an evidentiary hearing regarding ineffective assistance of trial counsel. We granted the motion and the district court denied relief, concluding that trial counsel was not ineffective. Doppler then filed both a post-conviction and a direct appeal with this court.*fn1 We affirmed the conviction. In March 2001, Doppler filed a second petition for post-conviction relief alleging, among other claims, ineffective assistance of appellate counsel. After a post-conviction hearing was held, Doppler filed a motion to reopen the record. The post-conviction court denied both the motion to reopen and the petition for post-conviction relief, concluding that the ineffective assistance of appellate counsel claim was procedurally barred. Doppler appealed both rulings and we affirm.
The facts of appellant David James Doppler's conviction were fully described in State v. Doppler; therefore, we will review only the facts relevant to provide context for the issues presented here. 590 N.W.2d 627 (Minn. 1999). In April 1995, Michael L. Sargent's body was found near an access road to Little Blackhoof Lake in Crow Wing County. Id. at 629. Four gunshot wounds were discovered on Sargent's body—one to the right leg, one to the chin, and two to the head. An extensive investigation led the police to Doppler. During an interview with agents from the Bureau of Criminal Apprehension (BCA), Doppler confessed to killing Sargent. In May 1995, Doppler was charged with second-degree murder. Id. at 632. Four months later, a grand jury indicted him for first-degree premeditated murder and conspiracy to commit first-degree premeditated murder. The conspiracy charge was subsequently dropped and a jury trial for first-degree premeditated murder began in May 1996. At trial, Doppler admitted that he shot Sargent, but claimed he was acting in self defense. Id. at 631. The jury found Doppler guilty of first-degree premeditated murder. Id. at 632.
Doppler appealed directly to this court. Through an attorney, he filed a motion asking that we remand his case for a post-conviction evidentiary hearing on his claim of ineffective assistance of counsel. We granted the motion. During the evidentiary hearing, Doppler argued that his trial counsel failed to attack the grand jury indictment, present an intoxication defense, and raise Schwartz issues.*fn2 The post-conviction court found that these decisions did not render Doppler's trial counsel ineffective and denied Doppler's request for relief.
Doppler then appealed to this court and was represented by the same attorney who represented him in the first post-conviction hearing. Doppler requested a new trial, arguing that his trial counsel was ineffective because he failed to: (1) object to the grand jury indictment; (2) present evidence of Doppler's intoxication; and (3) request a jury instruction on intoxication. Id. Doppler also appealed his first-degree murder conviction, claiming there was insufficient evidence to support the conviction. We concluded that Doppler's ineffective assistance of trial counsel claims failed and that the state presented evidence sufficient to support the jury's verdict. Id. at 635, 636.
In March 2001, Doppler filed a second petition for post-conviction relief requesting that his conviction be vacated. He initially appeared pro se. Doppler alleged the following grounds for post-conviction relief: (1) ineffective assistance of trial counsel based on a conflict of interest and failure to uncover evidence about the murder victim's prior criminal record; (2) the state's failure to disclose evidence favorable to the defense; (3) ineffective assistance of appellate counsel based on appellate counsel's failure to raise on direct appeal the conflict of interest claim, the failure to uncover evidence claim, and the state's withholding of evidence claim; and (4) newly discovered evidence. The post-conviction court granted a hearing. By the time of the hearing, Doppler was represented by counsel and the basis for the petition for post-conviction relief was changed. Doppler now argued ineffective assistance of appellate counsel predicated on appellate counsel's failure to raise on appeal trial counsel's decision to not call three witnesses. Specifically, Doppler argued that trial counsel failed to call Dr. John Plunkett, an expert witness who could have supported Doppler's self-defense claim, and Rhonda and Scott Hanestad, who would have testified to Sargent's propensity for violence. Doppler, his mother, and his brother testified at the hearing.
Doppler testified that before the trial he was told by his counsel that Dr. Plunkett reviewed photos of Sargent and the autopsy report and was of the opinion that the evidence supported Doppler's self-defense claim. Doppler was under the impression that his counsel would call Plunkett as a defense witness. However, his counsel did not call Plunkett to testify.
During trial when the state's expert witness was on the stand, Doppler asked his counsel whether he was going to call Plunkett. Counsel indicated that there was no reason to call Plunkett as long as the state's expert witness testified that Sargent's wounds could have been inflicted in a manner different than the one he described on direct examination. More particularly, Doppler stated that his counsel replied "as long as [the state's expert witness] agreed that [the murder] could have happened in another way * * * that was fine."
Doppler also testified that before the first post-conviction hearing and before the direct appeal, he spoke often with his appellate counsel about his trial counsel's failure to call Plunkett. Doppler testified that he reviewed both the post-conviction memorandum and the brief to this court and that his trial counsel's failure to call Plunkett was not raised in either. He asserts that those briefs were submitted to the court before he had an opportunity to give feedback to his appellate counsel. Finally, ...