June 17, 2013
Hassan Mohamed Abdillahi, petitioner, Appellant,
State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-08-52463.
Hassan M. Abdillahi, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Cleary, Judge; and Hooten, Judge.
Appellant challenges the district court's denial of his postconviction petition following a direct appeal, arguing that the district court erred by concluding that: (1) he failed to meet his burden of proof in support of his claim that he received ineffective assistance of both trial and appellant counsel; and (2) his allegations of error pertaining to the complaint and the admission of Spreigl evidence at trial were meritless and Knaffla-barred. We affirm.
Appellant Hassan Mohamed Abdillahi was charged by complaint with second-degree intentional murder. A jury trial was held over several days in June 2009, during which appellant was represented by a private attorney, Ira Whitlock. Appellant was convicted of second-degree intentional murder.
At trial, the jury was presented with surveillance recordings showing a hooded individual walk past the victim, A.I., and S.M. as they stood in front of a commercial building, and then, less than one minute after A.I. and S.M. went inside the building, this same individual shot the victim. A.I. testified that appellant, whom he had known for ten years, walked by S.M. and him shortly before the shooting and he identified appellant as the hooded individual on the surveillance recordings. Another witness, K.O., testified that in September 2008, appellant told him that his cousin had been killed by S.A., a friend of the victim, and he intended to retaliate by killing the victim at the end of September. State v. Abdillahi, No. A09-2011, 2011 WL 691623, at *1–2 (Minn.App. Mar. 1, 2011), review denied (Minn. May 17, 2011).
Appellant directly appealed his conviction to this court in November 2009 and was initially represented by the appellate public defender. After his appellate public defender filed a brief on March 23, 2010, appellant requested that she file a motion for disclosure of certain documents by the state and "a motion for a stay and remand for an evidentiary hearing" relative to his claim that he received ineffective legal assistance from his trial attorney. The appellate public defender responded that she would not file those motions because no further documents were needed for the appeal and because she did not believe that appellant's trial attorney was ineffective. Appellant subsequently filed a pro se supplemental brief, arguing, among other things, that he received ineffective assistance of trial counsel. A nonoral hearing was set before this court on September 8, 2010.
On August 16, 2010, appellant filed, pro se, a motion to stay the appellate proceedings pending a postconviction proceeding. Appellant subsequently filed a waiver of his right to representation by the appellate public defender's office, and filed a second pro se motion to stay appellate proceedings pending a postconviction proceeding.
On September 7, 2010, appellant's newly retained appellate counsel, Ronald Sieloff, filed a motion requesting a continuance of the nonoral hearing, leave to have oral argument and file an enlarged reply brief, and a stay of the appellate proceedings until there was a decision on appellant's pro se motion to stay. This court granted the request for oral argument and additional briefing, and scheduled oral argument for December 13, 2010, but denied appellant's request for a stay. Appellant subsequently sent Sieloff two letters, again asking him to request a stay from this court. Sieloff responded that he would like to have appellant's trial counsel, Whitlock, review the supplemental brief to be filed with this court, because Sieloff was not at the trial and had limited knowledge of the trial. Sieloff filed his supplemental brief on October 15, 2010.
On November 29, 2010, appellant sent a letter to Sieloff indicating that he had recently received an affidavit from a witness to the April 8, 2008, shooting and death of appellant's cousin, which indicated that the witness, not appellant's cousin, was the intended target of the shooting. Appellant wanted to present this evidence to indicate that he was not motivated by his cousin's murder to kill the victim in this case. Sieloff responded that this affidavit did not have the significance appellant placed on it, that this court had already denied a motion for a stay and was unlikely to grant a second motion, and that appellant's alleged newly discovered evidence would be properly addressed in a petition for postconviction relief. On December 10, 2010, Sieloff nonetheless filed a motion for a stay of the appellate proceedings based on the affidavit and trial counsel's allegedly ineffective assistance. Sieloff also forwarded for filing appellant's "pro se 'memorandum concerning appellant's counsel' and an amended pro se supplemental brief arguing ineffective assistance of appellate counsel." On December 17, 2010, this court denied appellant's request for a stay and deemed the appeal submitted for nonoral consideration as of December 13, 2010. Moreover, we refused appellant's new filings on the grounds that "[t]his court cannot address a claim of ineffective assistance of appellate counsel on direct appeal." Appellant petitioned the supreme court for further review, but that petition was denied.
On March 1, 2011, this court filed its opinion on direct appeal. We concluded that the district court did not err in allowing Spreigl evidence that appellant shot S.A. in September 2007 to show a pattern of violence between S.A. and his associates and appellant and his family, and that this evidence was "relevant and material because it would assist the jurors in understanding the pattern of retaliatory violence that preceded the charged offense." Abdillahi, 2011 WL 691623, at *2–4. This court also concluded that (1) the evidence was sufficient to sustain the verdict; (2) the district court did not err in its instructions to the jury regarding the Spreigl evidence; (3) several statements by the prosecutor did not constitute misconduct and a reference to appellant's religion was harmless; (4) the district court did not abuse its discretion by denying appellant's discovery request for police files in other investigations; and (5) cumulative error did not entitle appellant to a new trial. Id. at *2, 4–9.
Finally, this court found meritless appellant's pro se arguments that
the district court: (1) abused its discretion by denying his motion for a mistrial related to an outburst by K.O.; (2)committed plain error by allowing a witness to testify about statements A.I. made shortly after the murder; (3)abused its discretion by granting the jury's request to view the surveillance recordings of the murder during deliberations; and (4) should have questioned all jurors separately about a comment made to them by a member of the public during the last day of deliberations.
Id. at *8. We also rejected appellant's arguments that his trial counsel was ineffective, that the prosecutor committed misconduct, and that the district court erred in ordering restitution. Id. at *9. The supreme court denied appellant's petition for further review.
Appellant filed a pro se petition for postconviction relief in October 2011, arguing that (1) newly discovered evidence (the affidavit of the witness to the shooting and death of appellant's cousin) established that the Spreigl evidence was not probative and was therefore erroneously admitted at trial; (2) he did not have an opportunity to challenge the Spreigl evidence given this court's characterization of the events as part of a pattern of violence; (3) this court deprived him of his constitutional rights by declining to "inquire upon" or stay and remand for proceedings "regarding appellate counsel's potential conflict of interest" and allegedly ineffective assistance; (4) there was an unreasonable delay in judicially confirming probable cause; (5) the complaint contained misrepresentations of fact material to probable cause; (6) the prosecution suppressed or failed to disclose evidence in the complaint to support probable cause; (7) he was deprived of effective assistance of trial counsel; and (8) he was deprived of effective assistance of appellate counsel.
The district court held an evidentiary hearing on May 11, 2012, solely on whether Sieloff failed to present the ineffective-assistance-of-trial-counsel claim as a result of a conflict of interest. Appellant testified that Sieloff told him he had a viable ineffective-counsel claim. He also called his uncle and grandfather to testify about their knowledge of Sieloff's representation during the appeal. Appellant and his witnesses claimed that Sieloff told them that he was good friends with Whitlock, that Sieloff did not initially inform appellant that he did not do postconviction proceedings, and that Sieloff told appellant that he would argue against him at oral argument unless he was paid.
Sieloff denied that he told appellant that he had a viable ineffective-trial-counsel claim and testified that he would have declined to handle a postconviction proceeding because he focuses on appeals and only agreed to represent appellant in an appeal to this court. Sieloff testified that, after this court denied his first motion for a stay, he refused to appeal this decision to the supreme court because it was unlikely to succeed and was outside the scope of his representation. Sieloff also testified that he believed the ineffective-assistance-of-trial-counsel claim was a "sure loser" on direct appeal and would be better presented in a petition for postconviction relief. As to a potential conflict of interest, Sieloff testified that he was not friends with appellant's trial counsel, although he knew him from some time ago, and that he would not have declined to pursue a viable ineffective-assistance-of-trial-counsel claim if it were presented in the record. Sieloff "emphatically" stated that he "did not tell [appellant] that [he] had to pay the bill, " and "certainly didn't tell [appellant] that [he] would argue against [appellant], " calling that allegation "absurd and false." On cross-examination, Sieloff denied any relationship with Whitlock, but acknowledged that he knew that, years earlier, Whitlock was a law clerk for an attorney with an office in the same building as Sieloff's office.
The district court denied appellant's petition for postconviction relief, noting his challenges to his conviction and direct appeal, and concluded that several issues were previously argued to this court, or were known or should have been known by appellant during his direct appeal. Specifically, the district court found that appellant's arguments implicating ineffective assistance of counsel, an inappropriate use of Spreigl evidence, and misrepresentations of fact in the complaint were barred because they were already addressed by this court. The district court also found that the newly discovered evidence as set forth in appellant's witness affidavit would not have produced a different result because that evidence was not known to appellant until after trial and could not have altered the jury's perception of his motive.
The district court also concluded, largely on the basis of credibility determinations, that there was no conflict of interest preventing Sieloff from providing effective representation. Because it determined that there was no conflict of interest, the district court found appellant's arguments that this court committed constitutional error by not allowing his ineffective-assistance-of-appellate-counsel claim in his direct appeal were moot. Finding that there was no merit to appellant's arguments of ineffective assistance from his trial or appellant counsel, and rejecting the other arguments raised by appellant, the district court denied appellant's petition for postconviction relief. This appeal follows.
Appellant challenges several aspects of the district court's decision and this court's previous decision. Appellant again argues that his trial counsel was ineffective, and that his appellate counsel rendered ineffective assistance by refusing to claim that his trial counsel provided ineffective assistance. Appellant argues that his appellate counsel refused to make that claim because of a purported conflict of interest. Appellant also argues that this court erred by refusing to determine whether a conflict of interest affected his appellate counsel's representation.
In addition to his ineffective assistance of counsel claims, appellant argues that the Spreigl evidence was erroneously admitted and had a prejudicial effect upon his defense, that his newly discovered evidence undermines the probative nature of the Spreigl evidence, and that he did not receive adequate notice or opportunity to challenge the Spreigl evidence. Appellant also argues that he is entitled to a new trial because he did not receive a copy of a statement cited in the complaint as supporting probable cause.
"In postconviction proceedings, the burden is on the petitioner to establish, by a fair preponderance of the evidence, facts that warrant relief." Williams v. State, 692 N.W.2d 893, 896 (Minn. 2005). "Allegations in a postconviction petition must be more than argumentative assertions without factual support." McKenzie v. State, 754 N.W.2d 366, 369 (Minn. 2008) (quotation omitted). An appellate court "will reverse a decision of the postconviction court only if that court abused its discretion." Lussier v. State, 821 N.W.2d 581, 588 (Minn. 2012) (quotation and alteration omitted). "A postconviction court abuses its discretion when its decision is based on an erroneous view of the law or is against logic and the facts in the record." Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation omitted). We review the postconviction court's legal conclusions de novo and factual determinations under a clearly erroneous standard. Id.
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." State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Knaffla also bars raising, in a postconviction appeal, issues that are "essentially the same" as issues raised on direct appeal. Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007). "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." Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006) (quotation omitted). The second exception is only available when the petitioner's failure to raise the issue on direct appeal was not deliberate and inexcusable. Perry v. State, 731 N.W.2d 143, 146 (Minn. 2007). "The exceptions are limited to the extent that fairness requires consideration of such a claim." Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).
Appellant primarily argues that his appellate counsel provided ineffective assistance by refusing to argue that appellant received ineffective assistance from his trial counsel, by refusing to repeatedly seek a stay and remand of the direct appeal, and by telling appellant that he would argue against him at oral argument unless appellant paid his bill. Appellant argues that his appellate counsel's refusal to assert the ineffective-assistance-of-trial-counsel claim resulted from a conflict of interest—specifically, that his appellate counsel was good friends with his trial counsel.
"The basic standard for judging a claim of ineffective assistance of appellate counsel is the same as that applied to trial counsel's performance." Jama v. State, 756 N.W.2d 107, 113 n.2 (Minn.App. 2008). "An attorney's performance is substandard when the attorney does not exercise the customary skills and diligence that a reasonably competent attorney would exercise under the circumstances." Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007) (quotation and alteration omitted). An ineffective-assistance-of-appellate-counsel claim "is not barred by Knaffla because [appellant] could not have known of ineffective assistance of his appellate counsel at the time of his direct appeal." Schneider v. State, 725 N.W.2d 516, 521 (Minn. 2007). Postconviction appeals involving ineffective-assistance-of-counsel claims present mixed questions of fact and law, which we review de novo. Erickson v. State, 725 N.W.2d 532, 534 (Minn. 2007).
The Sixth Amendment right to counsel includes the "right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103 (1981). To establish a Sixth Amendment violation based on a conflict of interest, a defendant must show "an actual conflict of interest" that adversely affected the adequacy of counsel's representation. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718 (1980); see also Cuypers v. State, 711 N.W.2d 100, 104 (Minn. 2006) ("A Sixth Amendment violation can be demonstrated by showing that an actual conflict of interest adversely affected counsel's performance."). Because the "possibility of conflict" is insufficient to establish a violation, appellant cannot establish an ineffective-assistance claim unless the defendant "shows that his counsel actively represented conflicting interests." Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719.
In this case, the district court noted the conflicting testimony and found
Sieloff's testimony credible, and finds that Sieloff did not have a personal relationship with Whitlock. Because the Court finds that Sieloff did not have any kind of personal relationship with Whitlock, let alone a close friendship, the Court finds that Sieloff was not acting pursuant to a conflict of interest when he declined to raise the ineffective assistance of trial counsel claims that [appellant] wished him to raise.
This court "defer[s] to the district court's credibility determination in resolving conflicting testimony" because "[i]t is the province of the fact-finder to determine the weight and credibility to be afforded the testimony of each witness." State v. Kramer, 668 N.W.2d 32, 38 (Minn.App. 2003), review denied (Minn. Nov. 18, 2003). Moreover, findings of fact are reviewed under a clearly erroneous standard, and will not be reversed unless they are not factually supported by the record. Riley, 819 N.W.2d at 167.
The district court's finding that Sieloff and Whitlock did not have a personal relationship is supported by Sieloff's testimony at the postconviction hearing, where he specifically described his limited knowledge of, and limited contacts with, Whitlock. On the other hand, neither appellant nor his family members provided any detail or additional evidence about the alleged relationship between Sieloff and Whitlock. Because this court defers to the credibility determinations of the district court, we cannot conclude that this finding is erroneous.
Appellant also argues that Sieloff did not adequately seek a stay of the appeal and remand to the district court for an evidentiary hearing on whether appellant's trial counsel was ineffective. Sieloff's certificate of representation expressly limited his representation to the appeal before this court and appellant cannot show he was prejudiced by Sieloff's alleged disinterest in seeking a stay of appellate proceedings, as no less than three unsuccessful motions for a stay were filed with this court.
Appellant also argues that Sieloff threatened to argue against him at oral argument before this court unless appellant paid about $52, 000 in attorney fees. Sieloff denied this allegation and wrote that he "was anticipating spending a considerable amount of time preparing for the oral argument on December 13, 2010 to give [appellant] my best in the oral argument, " in a letter dated approximately one month after the date of these alleged statements.
Appellant has the burden of proving facts supporting relief, but the evidence in support of his claims is minimal and the district court explicitly found Sieloff's testimony credible. On this record, substantial evidence supports the district court's findings that a conflict of interest did not affect Sieloff's representation.
Appellant also argues that Sieloff rendered ineffective assistance because he failed to argue that his trial counsel provided ineffective assistance. "[T]o prevail on [an] ineffective assistance of appellate counsel claim" premised on appellate counsel's failure to raise a claim of ineffective assistance of trial counsel, appellant "must first show that his trial counsel was ineffective." Schneider, 725 N.W.2d at 521. To establish ineffective assistance of counsel, appellant "must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that the outcome would have been different but for counsel's errors." State v. Caldwell, 803 N.W.2d 373, 386 (Minn. 2011).
Appellant claims that his trial counsel was ineffective because he failed to investigate a witness statement in the complaint and the circumstances of an incident prior to the murder. Appellant's pro se arguments on direct appeal included these same assertions. Abdillahi, 2011 WL 691623, at *9. This court "thoroughly reviewed" those claims and "conclude[d] they are entirely without merit." Id.
Appellant's ineffective-assistance-of-trial-counsel claim is therefore Knaffla-barred. When this "court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Lynch v. State, 749 N.W.2d 318, 321 (Minn. 2008) (quotation omitted) (applying the "law of the case" doctrine in addition to the Knaffla rule on appeal from the denial of a postconviction claim); see also State v. LaRose, 673
N.W.2d 157, 161 (Minn.App. 2003) ("When an appellate court has ruled on an issue of law, the issue decided becomes law of the case and may not be relitigated or reexamined." (quotations and alteration omitted)), review denied (Minn. Aug. 17, 2004). This doctrine coincides with this court's procedural rules, which state that "[n]o petition for rehearing shall be allowed in the Court of Appeals." Minn. R. Civ. App. P. 140.01. Thus, we will not re-address our previous determinations that appellant's trial counsel did not render ineffective assistance.
On the other hand, appellant's ineffective-assistance-of-appellate-counsel claim is not Knaffla-barred because it could not have been argued on direct appeal. See Leake, 737 N.W.2d at 536. But, because appellant's ineffective-assistance-of-trial-counsel claim is meritless, Sieloff did not provide ineffective assistance by failing to raise that claim. When a claim for ineffective assistance of trial counsel has no legal merit, an appellant may not base his ineffectiveness of appellate counsel upon his failure to raise that claim. Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998). Moreover, "[w]hen an appellant and his counsel have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues." Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Because an ineffective-assistance-of-appellate-counsel claim cannot be predicated on declining to make a meritless argument, the district court did not err in denying appellant's postconviction petition on this ground.
Finally, appellant argues that this court erred in his prior appeal by declining to hear his claims that Sieloff had a conflict of interest and that he received ineffective assistance of appellate counsel. As noted, we denied appellant's submission of a "memorandum concerning appellant's [appellate] counsel and an amended pro se supplemental brief arguing ineffective assistance of appellate counsel, " because "[t]his court cannot address a claim of ineffective assistance of appellate counsel on direct appeal."
That decision was plainly required by Leake and Schneider, which state that ineffective-assistance-of-appellate-counsel claims should be addressed in postconviction petitions. See Leake, 737 N.W.2d at 536; Schneider, 725 N.W.2d at 521. This court is "bound to follow Minnesota Supreme Court precedent." Brainerd Daily Dispatch v. Dehen, 693 N.W.2d 435, 439–40 (Minn.App. 2005), review denied (Minn. June 14, 2005). Moreover, this court does not rehear its decisions. Minn. R. Civ. App. P. 140.01; State v. Vonderharr, 733 N.W.2d 847, 850 n.2 (Minn.App. 2007) (applying this rule in a criminal case to preclude reconsideration of a decision in a special term order).
There are several other problems with this argument. First, appellant unsuccessfully petitioned the supreme court for further review of our decision not to review his ineffective-assistance-of-appellate-counsel claim on direct appeal. Also, we are bound to review an appeal on the record before us. Minn. R. Civ. App. P. 110.01. Reviewing appellant's claim that he received ineffective assistance of appellate counsel would have required this court to receive new evidence because the appellate record could not contain evidence pertaining to appellate counsel's representation on appeal. Moreover, appellant cannot show that he was prejudiced by our decision because his argument was properly addressed in a postconviction evidentiary hearing by the district court. Finally, it would be impossible for this court to simultaneously hear appellate counsel's arguments and evidence on appeal at the same time we address the issue of whether appellant counsel was rendering ineffective assistance. There is no merit to appellant's argument that this court erred by not remanding for a determination of whether appellate counsel effectively assisted in an appeal that had not yet occurred.
In addition to his claims of ineffective assistance of counsel, appellant argues that the district court erred by not granting him a new trial because of errors related to the admission, as Spreigl evidence, of a video of him shooting S.A. in September of 2007. That video was admitted to show "a pattern of revenge among those involved" and assist the jury in understanding "the totality of events leading up to the shooting in this case." The prosecution argued that, in response to the Spreigl incident, S.A. shot and killed appellant's cousin in April 2008, which led appellant to kill the victim in this case. Appellant now contends that he has newly discovered evidence that S.A. intended to kill someone other than appellant's cousin in April 2008, and that this evidence "break[s] the presumed chain linking the [September 4, 2007] incident to" this offense and "proves that . . . there was no pattern of revenge between Appellant and S.A. that led to the murder charged because the intermediate event, the killing of [appellant's cousin, ] was an accident and not an act of retaliation."
Appellant argues that the Spreigl evidence was not relevant because of this new evidence and was therefore erroneously admitted because the prejudicial nature of the video outweighed the probative value of the evidence as part of a pattern of revenge. Appellant also maintains that, because the district court admitted the Spreigl evidence to show a "pattern of revenge" and this court termed the evidence part of a "pattern of violence, " he has not had an opportunity to defend this court's "relevance determination."
There is no merit to appellant's arguments. First, this court determined "that the district court did not abuse its discretion by admitting the Spreigl evidence." Abdillahi, 2011 WL 691623, at *4. Thus, appellant's argument, to the extent that it does not rely on newly discovered evidence, is barred. Second, appellant's semantic argument that a pattern of revenge is different from a pattern of violence is without merit. This court, in describing these events, used the terms "pattern of retaliatory violence, " "pattern of violence, " "a series of violent events, " and "violent rivalry." Id. at *2–4. These do not differ meaningfully from "pattern of revenge, " and there is no indication in this court's previous opinion that the Spreigl evidence was relevant to anything other than a "pattern of revenge." Thus, appellant's argument that there is a new holding that he can now challenge is meritless, and any other argument that he did not have a meaningful opportunity to address the admission of the Spreigl evidence is Knaffla-barred.
Also, newly discovered evidence that is irrelevant to a conviction does not require any relief because it could not establish that the defendant is innocent. Berkovitz v. State, 826 N.W.2d 203, 208 (Minn. 2013) (holding that newly discovered evidence that defendant's public defender later became a member of the prosecuting authority's office does not require relief from defendant's murder convictions). The district court noted that "it is not probable that the affidavit [of the witness to the shooting of appellant's cousin] would produce a different or more favorable result for" appellant. The Spreigl evidence at issue was introduced to prove appellant's motive for committing the crime. This newly discovered evidence could not have affected evidence of appellant's motive because appellant did not discover it until after the trial. Because the affidavit of the witness would have been irrelevant to appellant's state of mind at the time of the criminal act, it would have been inadmissible and therefore could not have changed the result of the trial.
Because appellant's ineffective-assistance-of-trial-counsel claim is Knaffla barred, and the district court did not abuse its discretion in rejecting appellant's ineffective-assistance-of-appellant-counsel claim, and because appellant's other claims are either barred under Knaffla or are without merit, the district court did not err in denying appellant's postconviction petition for relief.
Affirmed; motion denied.