State of Minnesota v. Larry Leo Geleneau, Jr.

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0718

State of Minnesota,
Respondent,

vs.

Larry Leo Geleneau, Jr.,
Appellant.

Filed December 21, 2015
Affirmed
Johnson, Judge

Otter Tail County District Court
File No. 56-CR-13-714

Lori Swanson, Attorney General, Karen B. Andrews, Assistant Attorney General,
St. Paul, Minnesota; and

David J. Hauser, Otter Tail County Attorney, Fergus Falls, Minnesota (for respondent)

Mary Moriarty, Hennepin County Public Defender, Paul J. Maravigli, Assistant Public
Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Johnson, Judge; and Bjorkman,

Judge.

SYLLABUS

This court will not consider whether a district court erred by not striking a juror

for cause sua sponte if the appellant expressly waived the right to challenge the juror for

cause.
 OPINION

JOHNSON, Judge

An Otter Tail County jury found Larry Leo Geleneau Jr. guilty of criminal sexual

conduct based on evidence that he sexually abused a child for more than three years. On

appeal, he argues that the district court erred by not dismissing two prospective jurors for

cause sua sponte. He also argues that he received ineffective assistance of counsel

because his trial counsel did not attempt to remove the two prospective jurors from the

venire panel, either by asserting a challenge for cause or by exercising a peremptory

strike. We conclude that appellate review of Geleneau’s first argument is precluded by

his trial counsel’s express waiver of Geleneau’s right to challenge the prospective jurors

for cause. We also conclude that Geleneau has failed to show that his trial counsel’s

performance fell below an objective standard of reasonableness. Therefore, we affirm.

FACTS

In 2006, Geleneau’s sister-in-law lost custody of her young daughter. The girl

subsequently lived in a series of four or five foster homes. In August 2009, the girl, who

then was ten years old, moved into the home that Geleneau shared with his wife and two

children. Between December 2012 and February 2013, a school counselor and one of the

girl’s friends reported that Geleneau had sexually abused the girl. The girl moved to

another foster home.

In March 2013, the state charged Geleneau with three counts of first-degree

criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a), 1(g), 1(h)(iii)

(2012); three counts of second-degree criminal sexual conduct, in violation of Minn. Stat.

2
§ 609.343, subds. 1(a), 1(g), 1(h)(iii) (2012); one count of third-degree criminal sexual

conduct, in violation of Minn. Stat. § 609.344, subd. 1(b) (2012); and one count of

fourth-degree criminal sexual conduct, in violation of Minn. Stat. § 609.345, subd. 1(b)

(2012).

The case went to trial in November 2013. At the beginning of jury selection, the

district court assembled a venire panel of 22 persons. The district court began voir dire

by questioning all prospective jurors in the courtroom. The district court and counsel

also questioned a few prospective jurors in private, outside the presence of other

prospective jurors.

J.T. was among the prospective jurors whom the district court and counsel

questioned in private, in the jury room. J.T. had disclosed in a written answer to a jury

questionnaire that her son had been physically or sexually abused. In response to

questions asked by the district court, J.T. revealed that, in 1983, her then-husband was

convicted of the “same charges” involving a four-year-old victim, who was the husband’s

son and J.T.’s stepson. J.T. expressed her belief that her former husband also abused her

son from a prior relationship. In addition, J.T. stated that someone once posted

photographs of her then-six-year-old granddaughter on the internet. J.T. expressed anger

about the situation because, she said, it caused J.T.’s son, the father of the girl, to receive

a change in his military assignment and subsequently to be deployed overseas.

The district court asked counsel whether they had any questions for J.T. Counsel

for both parties initially declined. The prosecutor said to the district court, “I’ll leave it to

your discretion.” The district court responded by saying, “I leave it to counsel.”

3
Geleneau’s trial counsel commented that “I struggle to hear the connection between the

experience described and this particular case” but that J.T. was “clearly upset about a

related situation,” namely, her son’s reassignment and deployment after photographs of

his daughter were posted on the internet. Counsel for the parties suggested that J.T.’s

suitability for jury service depended on whether her anger about “a related situation”

would “cloud[] her judgment” or whether she could set aside the experiences she

mentioned, follow the district court’s instructions, and fairly evaluate the evidence. The

district court asked J.T. additional follow-up questions concerning whether she could set

aside her experiences and be a fair and impartial juror. Geleneau’s trial counsel then

asked J.T. additional follow-up questions of the same type. After both counsel declined

the opportunity for further questions, J.T. was asked to report to the courtroom at a later

time.

When the prospective jurors were gathered in the courtroom, Geleneau’s trial

counsel asked D.G. whether he believed that the criminal justice system is fair, and D.G.

answered in the affirmative. Geleneau’s trial counsel also questioned D.G. about one of

his written answers on the jury questionnaire, in which he had disclosed that his father-in-

law worked at, and his son had attended, a summer camp at which a volunteer had

committed a sex-based offense against another child. Geleneau’s trial counsel elicited

information from D.G. to the effect that his son had not been harmed by the volunteer.

Geleneau’s trial counsel also took the opportunity to ask J.T. some additional follow-up

questions concerning whether she would “have . . . a difficult time” serving as a juror and

whether she would “hold it against” either party if she were required to serve. After

4
Geleneau’s trial counsel had an opportunity to question all prospective jurors, he stated,

“That’s all the questions I have this afternoon. I pass for cause, Your Honor.”

The district court then gave the prosecutor an opportunity to question the

prospective jurors. The prosecutor asked D.G. whether he could set aside the fact that

she also served as the prosecutor in a criminal case concerning the volunteer at the

summer camp, and D.G. answered in the affirmative. The prosecutor asked J.T. some

additional questions about her prior contact with victims of child sexual abuse when she

worked as a volunteer in a chemical-dependency-rehabilitation program. After the

prosecutor had the opportunity to question all prospective jurors, she stated, “Your

Honor, I believe I’ll pass the jurors for cause.”

Throughout voir dire, the district court dismissed seven prospective jurors for

cause sua sponte. The district court replaced each dismissed prospective juror by adding

another person to the venire panel. At the end of voir dire, the prosecutor and Geleneau’s

trial counsel used their respective allotments of peremptory strikes. See Minn. R. Crim.

P. 26.02, subd. 6. Ultimately, the district court seated twelve jurors, including J.T. and

D.G., and two alternate jurors.

During the evidentiary phase of trial, the state called eight witnesses: the girl; two

employees of the county’s child-protection program; a physician associated with a child-

abuse advocacy center who had examined the girl; two deputy sheriffs; and two forensic

scientists employed by the Bureau of Criminal Apprehension. The girl testified that

Geleneau required her to engage in sexual contact on numerous occasions. Specifically,

the girl testified that Geleneau touched her buttocks, vagina, and breasts; inserted his

5
penis into her mouth; and inserted his penis into her anus. The girl testified that

Geleneau’s sexual abuse occurred “[a] lot,” starting shortly after she moved into

Geleneau’s home and concluding only when she moved out. She testified that she did not

tell anyone about the abuse because she was afraid. The girl’s testimony was

corroborated in part by one of the forensic scientists, who testified that Geleneau’s DNA

was found on the girl’s underwear.

Geleneau testified in his own defense. He denied having any sexual contact with

the girl. He suggested that she had fabricated the allegations of sexual abuse in an effort

to be returned to her mother. He also implied that the girl fabricated the DNA evidence

by retrieving from a wastebasket a condom that he and his wife had used. Geleneau also

called four other witnesses: his wife, his two daughters, and a co-worker.

The jury found Geleneau guilty on all counts. In January 2014, the district court

imposed a sentence of 144 months of imprisonment on count 3. Geleneau filed a timely

notice of appeal and then asked this court to stay the direct appeal to allow him to seek

postconviction relief. This court granted the stay. See Minn. R. Crim. P. 28.02,

subd. (4).

In November 2014, Geleneau filed a postconviction petition in which he alleged

that his trial counsel had provided him with ineffective assistance by not seeking to

remove two prospective jurors whom he alleged were biased, including J.T. In February

2015, the district court denied the petition without an evidentiary hearing. In March

2015, this court dissolved the stay and reinstated the appeal.

6
 ISSUES

I. Did the district court err by not dismissing two prospective jurors for cause

sua sponte?

II. Has Geleneau established that his trial counsel provided ineffective

assistance of counsel by not seeking to remove two prospective jurors from the venire

panel, either by asserting challenges for cause or by using peremptory strikes?

ANALYSIS

I.

Geleneau first argues that the district court erred by not dismissing two

prospective jurors for cause sua sponte. Specifically, Geleneau argues that the district

court should have dismissed J.T. and D.G. for cause because their answers to the written

jury questionnaire and their answers to questions during voir dire revealed biases that

justify dismissal for cause.

A.

The Sixth Amendment to the United States Constitution provides, “In all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed . . . .”

U.S. Const. amend. VI; see also Minn. Const. art. I, § 6. The right to an impartial jury

also is based on a defendant’s right to due process of law. Irvin v. Dowd, 366 U.S. 717,

722, 81 S. Ct. 1639, 1642 (1961). The bias of even a single juror violates a defendant’s

constitutional rights because “the impartiality of the adjudicator goes to the very integrity

7
of the legal system.” State v. Fraga, 864 N.W.2d 615, 623 (Minn. 2015) (quotation

omitted).

In Minnesota, parties may remove a prospective juror who is not impartial

pursuant to rule 26.02, subdivision 5, of the Minnesota Rules of Criminal Procedure. The

rule provides 11 grounds on which a juror may be challenged for cause. Minn. R. Crim.

P. 26.02, subd. 5(1). Among them is the situation in which a prospective juror’s “state of

mind . . . satisfies the court that the juror cannot try the case impartially and without

prejudice to the substantial rights of the challenging party.” Minn. R. Crim. P. 26.02,

subd. 5(1)1. The party challenging a prospective juror on this ground has the burden of

establishing that the prospective juror has “actual bias” toward the case or a party. State

v. Munt, 831 N.W.2d 569, 577 (Minn. 2013). To satisfy that burden, the challenging

party must show more than “‘the mere existence of any preconceived notion as to the

guilt or innocence of an accused’”; the challenging party must show a “‘strong and deep

impression[]’ that would prevent [the prospective juror] from lay[ing] aside [an]

impression or opinion.’” Id. (quoting Irvin, 366 U.S. at 722-23 & n.3, 81 S. Ct. at 1642-

43 & n.3).

To determine whether a juror is biased, courts engage in a two-step process.

Fraga, 864 N.W.2d at 623. First, the court must determine whether the juror expressed

actual bias. Id. Second, the court must determine whether the juror was properly

rehabilitated, which occurs if the juror states unequivocally that he or she will follow the

district court’s instructions and will set aside any preconceived notions and fairly

evaluate the evidence. Id. If a district court has ruled on a for-cause challenge to a

8
prospective juror, an appellate court gives “‘great deference to a district court’s findings

of fact’ regarding juror bias . . . and review[s] a district court’s decision to seat a juror for

abuse of discretion.” Id. (quoting Munt, 831 N.W.2d at 577).

B.

Before considering the substance of Geleneau’s argument, we must consider the

state’s argument that Geleneau “has waived his right to” challenge the jurors’ impartiality

on appeal. The state’s argument is based on the fact that Geleneau’s trial counsel did not

challenge J.T. or D.G. for cause. In fact, Geleneau’s trial counsel affirmatively stated

that he did not wish to challenge any prospective juror for cause.

The state’s argument is consistent with supreme court caselaw. In State v. Thieme,

281 Minn. 47, 160 N.W.2d 396 (1968), the supreme court declined to consider the

appellant’s biased-juror argument because the “defendant, after consultation with his

counsel, chose to make no . . . challenge” to the juror. Id. at 51, 160 N.W.2d at 398. The

supreme court reasoned that “[i]t is too late to raise this issue now” because to allow

appellate review “would extend an invitation to every defendant to leave unchallenged an

objectionable juror only to raise the objection upon appeal.” Id. Since Thieme, neither

the supreme court nor this court has considered a case in which an appellant sought to

establish juror bias on appeal after trial counsel had expressly declined to assert a for-

cause challenge. Cf. State v. Hanson, 286 Minn. 317, 331-32, 176 N.W.2d 607, 616

(1970) (declining to consider biased-juror argument on appeal because “challenge for

cause . . . was not exercised” at trial, “[f]or reasons which we must presume to have been

adequate”).

9
 We are mindful of the fact that the Thieme opinion predates the promulgation of

the rules of criminal procedure. See In re Proposed Rules of Criminal Procedure,

No. 45517 (Minn. Feb. 26, 1975) (order). Nonetheless, it appears that Thieme retains its

vitality. Even after the rules of criminal procedure took effect, the supreme court

continued to insist on the preservation of a biased-juror argument. In State v. Stufflebean,

329 N.W.2d 314 (Minn. 1983), the supreme court stated that an appellant making a

biased-juror argument “must show [1] that the challenged juror was subject to challenge

for cause, [2] that actual prejudice resulted from the failure to dismiss,1 and [3] that

appropriate objection was made by appellant.” Id. at 317 (emphasis added). This

excerpt demonstrates that an objection is necessary for appellate relief, which implies that

the absence of an objection in the district court is a sufficient basis for rejecting a biased-

juror argument on appeal. See id. The requirement that a defendant make a for-cause

challenge in the district court before making a biased-juror argument on appeal is

consistent with the principle that the district court is in the best position to determine

whether a prospective juror can be an impartial juror because the district court can assess

the prospective juror’s demeanor and credibility during voir dire. See Logan, 535

N.W.2d at 323; State v. Drieman, 457 N.W.2d 703, 708-09 (Minn. 1990).

1
Subsequent supreme court opinions have clarified the second part of this
statement by explaining that an appellant need not demonstrate actual prejudice in the
sense that a biased juror caused a result that otherwise would not have obtained; rather,
the presence of a biased juror is a structural error that requires a new trial, without any
inquiry into the consequences of the biased juror’s participation. See Fraga, 864 N.W.2d
at 625-26 (citing Holt v. State, 772 N.W.2d 470, 477 (Minn. 2009), State v. Williams, 593
N.W.2d 227, 238 (Minn. 1999), and State v. Logan, 535 N.W.2d 320, 324 (Minn. 1995)).

10
 In addition, this court previously has stated that a district court has no duty to

dismiss a juror for cause sua sponte. In State v. Gillespie, 710 N.W.2d 289 (Minn. App.

2006), the district court specifically asked the pro se defendant at the conclusion of voir

dire whether he was passing his opportunity to assert a for-cause challenge, and the

defendant responded by saying, “Yes, oh yes.” Id. at 292-93. On appeal, the defendant-

appellant argued that “the district court committed plain error by failing to strike sua

sponte” two prospective jurors. Id. at 296. This court decided the appeal by emphasizing

a defendant’s opportunity to challenge a biased juror for cause pursuant to rule 26.02,

subdivision 5(1); by essentially presuming that the absence of such a challenge is due to

strategic reasons; and by suggesting that a district court might commit plain error if it

were to intervene in jury selection by striking a juror for cause sua sponte. Id. In the

alternative, we analyzed the appellant’s argument on the merits, assuming without

deciding that a district court may have a duty to dismiss a juror for cause sua sponte, and

we rejected the appellant’s argument on the merits as well. Id. at 297. But the primary

basis of our decision was that the appellant was not permitted to make a biased-juror

argument on appeal because he had not made such an argument at the conclusion of voir

dire (and, in fact, had expressly disavowed such an argument). Id. at 296.

Furthermore, the Thieme opinion is consistent with federal law. A majority of the

federal circuit courts of appeals will not consider a biased-juror argument if the appellant

did not object to the allegedly biased juror during the jury-selection process. See United

States v. Johnson, 688 F.3d 494, 500-01 (8th Cir. 2012); Dawson v. Wal-Mart Stores,

Inc., 978 F.2d 205, 210 (5th Cir. 1992); United States v. Joshi, 896 F.2d 1303, 1307-08

11
(11th Cir. 1990); United States v. Reis, 788 F.2d 54, 59 (1st Cir. 1986); United States v.

Diaz-Albertini, 772 F.2d 654, 657 (10th Cir. 1985); United States v. Harris, 530 F.2d

576, 579-80 (4th Cir. 1976); United States v. Ragland, 375 F.2d 471, 475 (2d Cir. 1967).

Our research reveals only one federal circuit court opinion in which it is clear that the

appellant expressly waived a for-cause challenge and asserted a biased-juror argument on

appeal. In United States v. Brazelton, 557 F.3d 750 (7th Cir. 2009), the trial court

specifically asked the appellant’s trial counsel whether he wished to assert a for-cause

challenge to a juror who was a relative of one of the government’s witnesses. Id. at 752.

Appellant’s trial counsel “expressly declined,” stating, “No, Your Honor.” Id. On

appeal, the appellant argued that the trial court erred by allowing the juror to serve. Id. at

753. The United States Court of Appeals for the Seventh Circuit refused to consider the

argument on the ground that it had been waived. Id. at 754-55. The Seventh Circuit

relied on the United States Supreme Court’s opinion in United States v. Olano. Id. at 753

(citing United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993)). The Olano

opinion makes a distinction between “waiver” and “forfeiture” by stating that “forfeiture

is the failure to make the timely assertion of a right,” while “waiver is the intentional

relinquishment or abandonment of a known right.” 507 U.S. at 733, 113 S. Ct. at 1777

(quotation omitted).2 The Seventh Circuit in Brazelton stated, “A more obvious

intentional relinquishment of a known right . . . is hard to imagine.” 557 F.3d at 753

(citing Olano, 507 U.S. at 733, 113 S. Ct. at 1777). The Seventh Circuit added, “If a

2
Our supreme court also has noted and applied Olano’s distinction between
forfeiture and waiver. See State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015);
State v. Jeffries, 806 N.W.2d 56, 64 n.4 (Minn. 2011).

12
defendant is allowed to . . . forego challenges for-cause to a biased juror and then allowed

to have the conviction reversed on appeal because of that juror’s service, that would be

equivalent to allowing the defendant to plant an error and grow a risk-free trial.” Id. at

755 (quotation omitted).

C.

In this case, the record reveals that, at the conclusion of voir dire, Geleneau’s trial

counsel stated, “That’s all the questions I have this afternoon. I pass for cause, Your

Honor.” (Emphasis added.) Geleneau’s trial counsel’s statement indicates that

Geleneau’s counsel “chose to make no . . . challenge” to J.T. or D.G. See Thieme, 281

Minn. at 51, 160 N.W.2d at 398. In addition, Geleneau’s trial counsel’s statement

relieved the district court of any obligation to dismiss any juror for cause sua sponte. See

Gillespie, 710 N.W.2d at 296. Furthermore, Geleneau’s trial counsel’s statement reflects

an “intentional relinquishment or abandonment of” the right to challenge a prospective

juror for cause. See Olano, 507 U.S. at 733, 113 S. Ct. at 1777 (quotation omitted).

Accordingly, Geleneau expressly waived his right to challenge prospective jurors J.T. and

D.G. for cause. Because Geleneau waived that right, this court will not consider on

appeal whether the district court erred by not dismissing J.T. and D.G. for cause sua

sponte.3

3
We need not consider whether an appellant may argue on appeal that a district
court erred by not dismissing a prospective juror for cause sua sponte if the appellant
merely forfeited the issue at trial without expressly waiving it. See Beaulieu, 859 N.W.2d
at 278-79 (discussing plain-error rule generally); Stufflebean, 329 N.W.2d at 317
(requiring objection to prevail on appeal on biased-juror argument); State v. Little, 851
N.W.2d 878, 889 n.3 (Minn. 2014) (Stras, J., concurring in part, dissenting in part) (“It is

13
 II.

Geleneau also argues that he was denied his right to the effective assistance of

counsel because his trial counsel did not seek to remove J.T. or D.G. from the venire

panel, either by asserting a challenge for cause or by using a peremptory strike.

“In all criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. Const. amend. VI. The right to the

assistance of counsel includes the right to the effective assistance of counsel. Strickland

v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2063 (1984). To prevail on a claim

of ineffective assistance of counsel, a petitioner “must affirmatively prove [1] that his

counsel’s representation ‘fell below an objective standard of reasonableness’ and [2] ‘that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” Gates v. State, 398 N.W.2d 558, 561 (Minn.

1987) (quoting Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068). In general,

“there is a strong presumption that counsel’s performance fell within a wide range of

reasonable assistance.” Bruestle v. State, 719 N.W.2d 698, 705 (Minn. 2006) (quotation

omitted). “We give trial counsel wide latitude to determine the best strategy for the

client.” State v. Nicks, 831 N.W.2d 493, 506 (Minn. 2013). Thus, an attorney’s

an open question in Minnesota whether unpreserved structural errors lead to the
automatic reversal of a conviction.”); see also United States v. Mitchell, 568 F.3d 1147,
1150 (9th Cir. 2009) (noting unsettled question whether plain-error rule applies to
unpreserved claims of juror bias). Our analysis is limited to the procedural history of this
case, in which Geleneau’s trial counsel expressly stated that he did not wish to challenge
any prospective juror for cause.

14
“strategic choices made after thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.

The deference that courts give to an attorney’s strategic decisions is especially

strong in matters of jury selection, which “depends heavily on counsel’s experience,

perception of and rapport with prospective jurors.” Jama v. State, 756 N.W.2d 107, 114

(Minn. App. 2008). “Attorneys must make tactical decisions during jury selection, and a

claim of ineffective assistance of counsel cannot be established by merely complaining

about ‘counsel’s failure to challenge certain jurors or his failure to make proper

objections.’” Tsipouras v. State, 567 N.W.2d 271, 276 (Minn. App. 1997), review denied

(Minn. Sept. 18, 1997) (quoting State v. Prettyman, 293 Minn. 493, 494, 198 N.W.2d

156, 156 (1972) (quoting State v. Russell, 272 Minn. 463, 138 N.W.2d 690 (1965)

(quotation marks omitted))). In Prettyman, the supreme court concluded that there was

“no basis for second-guessing the experienced public defender’s jury selection tactics as

mistaken or improvident” given that voir dire revealed no bias and no grounds for

removal for cause. 293 Minn. at 494, 198 N.W.2d at 158. Later, in Dunn v. State, 499

N.W.2d 37 (Minn. 1993), the supreme court concluded that trial counsel’s decision to not

seek to remove a prospective juror was not unreasonable in light of the fact that counsel

questioned the prospective juror about a potential source of bias and, “satisfied that no

real risk of bias existed, reasonably decided not to exercise a peremptory challenge

against him.” Id. at 38 (citing Prettyman, 293 Minn. at 494, 198 N.W.2d at 158). More

recently, in Williams v. State, 764 N.W.2d 21 (Minn. 2009), the supreme court rejected

an argument that trial counsel was ineffective for not seeking to remove a juror,

15
reasoning that “ineffectiveness is not established by complaining that counsel failed to

challenge certain jurors unless the failure to challenge jurors essentially amounts to a

denial of counsel.” Id. at 30 (citing Russell, 272 Minn. at 465, 138 N.W.2d at 692). This

court has held that an attorney’s representation of a defendant in jury selection is below

an objective standard of reasonableness only if the petitioner can prove:

(1) that defense counsel was so inattentive or indifferent
during the jury selection process that the failure to remove a
prospective juror was not the product of a conscious choice or
preference; (2) that a prospective juror expressed bias so
strong or unequivocal that no plausible countervailing
subjective preference could justify failure to remove that
juror; or (3) that there is some other specific evidence clearly
demonstrating that counsel’s choice was not plausibly
justifiable.

Jama, 756 N.W.2d at 114 (quoting State v. Litherland, 12 P.3d 92, 100 (Utah 2000)).

In this case, Geleneau argues on appeal that his trial counsel was ineffective for

not seeking to remove two prospective jurors, J.T. and D.G., from the venire panel. Trial

counsel’s decision concerning J.T. was raised by Geleneau’s postconviction petition; trial

counsel’s decision concerning D.G. was not. Thus, we will review the postconviction

court’s ruling with respect to J.T., and we will review the trial record with respect to D.G.

A.

A postconviction petition filed pursuant to chapter 590 of the Minnesota Statutes

“shall contain . . . a statement of the facts and the grounds upon which the petition is

based and the relief desired,” and “[a]ll grounds for relief must be stated in the petition or

any amendment thereof unless they could not reasonably have been set forth therein.”

Minn. Stat. § 590.02, subd. 1(1) (2014). “[T]he burden of proof of the facts alleged in the

16
petition shall be upon the petitioner to establish the facts by a fair preponderance of the

evidence.” Minn. Stat. § 590.04, subd. 3 (2014). To satisfy the burden of proof, a

petitioner “must do more than offer conclusory, argumentative assertions, without factual

support.” State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007).

The postconviction court wrote a thorough and detailed order in which it rejected

Geleneau’s postconviction claim concerning prospective juror J.T. and the other

prospective juror mentioned in Geleneau’s petition. The relevant portion of the

postconviction court’s order states as follows:

[A]fter a thorough review of the record and reflection upon
the Court’s thoughts and impressions at trial, the Court finds
that the petition, files, and record conclusively show that
Mr. Beitelspacher’s decisions not to move to strike for cause,
or peremptorily strike, the jurors at issue were objectively
reasonable. Mr. Beitelspacher actively participated in the
jury-selection process, questioning jurors and building
rapport. He had the opportunity to interact with the jurors
and acquire the sense of whether each was likely to be
influential with other jurors or easily influenced. Contrary to
Petitioner’s assertions, Mr. Beitelspacher used all five of his
peremptory strikes.

The trial record indicates that Mr. Beitelspacher’s
choices not to move to strike, or strike, the jurors at issue
were consistent with a strategic or tactical decision-making
process, particularly in the case of [J.T.]. None of the jurors
at issue strongly indicated a disqualifying bias and each of
them indicated an intention to perform properly as jurors. At
the time of trial, the victim in this matter was 13 years old, far
older than the young victims described by [J.T.]. Based upon
Mr. Beitelspacher’s closing argument, the defense theory of
the case involved: (1) a teenager who fabricated the sexual
abuse and physical evidence in order to resume living with
her mother; (2) an inadequate police investigation of potential
physical evidence; (3) lack of medical evidence of penetration
or injury; and (4) deficiencies with physical evidence

17
 collected. Counsel had a 33-question juror questionnaire
available for each potential juror, which provided additional
information to help place the juror’s oral statements in
context. Mr. Beitelspacher demonstrated familiarity with
questionnaire answers in his questioning of potential jurors.

Mr. Beitelspacher could reasonably have anticipated
that [J.T.]’s experiences regarding sexual abuse would
sharply contrast with the story of the alleged victim in this
matter, potentially making her apt to hold the alleged victim’s
story to a higher level of scrutiny due to her age. He also
could have reasonably anticipated that [J.T.] would expect
more and better physical evidence due to her previous
experiences. For example, there was photographic evidence
of the abuse involving [J.T.]’s granddaughter. Mr.
Beitelspacher knew that there was no similar evidence in this
matter, and he planned to question the value of the arguably
inconclusive DNA evidence and the lack of medical evidence
in this matter.

All of the challenged jurors heard six other potential
jurors who were questioned and found by the Court to be
unfit to serve on the jury due to bias. Although they each
expressed reservations, none of the challenged jurors stated
that he/she could not serve as a juror under these standards.
In the context of the full voir dire process, their responses
show that it was reasonable for defense counsel both to not
move to strike them for cause and, in the case of [J.T. and
another prospective juror], to peremptorily strike other
potential jurors.

On appeal, Geleneau does not argue that the postconviction court’s factual

findings are unsupported by the record. Instead, Geleneau essentially disregards the

postconviction court’s order and argues that the trial record supports different factual

findings. In light of the deference that we must give to a postconviction court’s findings

of fact if they are supported by the record, see Nicks, 831 N.W.2d at 503-04, we have no

basis for disturbing the postconviction court’s conclusion that Geleneau’s trial counsel

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was not ineffective. In fact, our analysis of the relevant factors confirms the

postconviction court’s analysis. First, the postconviction court’s order does not describe

an attorney who was “inattentive or indifferent during the jury selection process” or

whose decision to not seek to remove J.T. was not “the product of a conscious choice or

preference.” See Jama, 756 N.W.2d at 114. Rather, the postconviction court’s order

describes Geleneau’s trial counsel as well prepared and engaged. Second, the trial record

does not indicate that J.T. “expressed bias so strong or unequivocal that no plausible

countervailing subjective preference could justify failure to remove that juror.” See id.

During voir dire, both counsel and the district court were more concerned about her anger

about her son’s military reassignment and deployment, not about her attitudes concerning

persons who are accused of sexually abusing children. In addition, the postconviction

court identified reasons why J.T. might be a favorable juror for the defense. Third, there

is no “other specific evidence clearly demonstrating that counsel’s choice was not

plausibly justifiable.” See id. This simply is not one of those rare cases in which a

postconviction petitioner can prove that trial counsel was ineffective in not seeking to

remove a prospective juror.

Geleneau argues in the alternative that the postconviction court erred by denying

his postconviction petition without conducting an evidentiary hearing. A postconviction

petition may be denied without an evidentiary hearing if the petition, files, and record

conclusively show that the petitioner is entitled to no relief. Minn. Stat. § 590.04, subd. 1

(2014). An evidentiary hearing should be held if “material facts are in dispute that . . .

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must be resolved in order to determine the issues raised on the merits.” Voorhees v.

State, 627 N.W.2d 642, 648 (Minn. 2001) (quotation omitted) (alteration in original).

In this case, the petition and the accompanying affidavits submitted by Geleneau

do not contain facts that, if proved to be true, would allow him to satisfy the Strickland

test. In Geleneau’s affidavit, the most pertinent allegation is that “he adamantly told his

trial attorney to strike [J.T.], but he did not do so.” But Geleneau does not argue on

appeal that an attorney representing a criminal defendant is obligated to allow the

defendant to make decisions concerning which prospective jurors to keep or strike, and

we are aware of no such caselaw. Accordingly, Geleneau’s allegation does not overcome

the principle that courts are deferential toward the well-considered strategic decisions of

trial counsel. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066; Nicks, 831 N.W.2d

at 506; Bruestle, 719 N.W.2d at 705. Geleneau also submitted an affidavit of an

experienced criminal defense attorney, but that attorney was familiar with the case only

to the extent that he had reviewed a three-page summary of the transcript of voir dire,

which had been prepared by postconviction counsel. Accordingly, the opinions offered

by the experienced criminal defense attorney are incapable of proving that the strategic

decisions of trial counsel, who was present in the courtroom and undoubtedly had

multiple sources of information about the prospective jurors, were below an objectively

reasonable standard of performance. Given the applicable law and the facts alleged by

Geleneau, an evidentiary hearing would not have allowed him to prove his

ineffectiveness claim with respect to prospective juror J.T.

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 B.

Because Geleneau did not include any allegations in his postconviction petition

with respect to D.G., we will consider that part of his ineffectiveness argument as part of

his direct appeal by reviewing the trial record.

D.G.’s statements in voir dire do not reveal any basis for a challenge for cause.

D.G. made a written comment in response to the jury questionnaire that cases involving

sexual abuse of a child are “the worst” type of case, but that comment does not exhibit a

“strong and deep impression[]” that he could not “lay aside his impression or opinion and

render a verdict based on the evidence.” Irvin, 366 U.S. at 722-23 & n.3, 81 S. Ct. at

1642-43; see also Munt, 831 N.W.2d at 577. In addition, D.G. made clear during voir

dire that he could set aside his feelings about a related incident, and he expressed faith in

the jury system. In light of this record, there is no basis for concluding that Geleneau’s

trial counsel’s decision to not seek to remove D.G. from the venire panel was below an

objective standard of reasonableness. See State v. Caldwell, 803 N.W.2d 373, 386-87

(Minn. 2011) (concluding that appellant failed to rebut presumption that trial counsel’s

performance was reasonable during voir dire because trial counsel was well prepared,

asked questions of prospective jurors, and challenged several jurors for cause).

DECISION

We will not consider Geleneau’s argument that the district court erred by not

dismissing two prospective jurors for cause sua sponte because Geleneau expressly

waived his right to assert a challenge for cause. Geleneau’s trial counsel did not provide

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ineffective assistance by not seeking to remove prospective jurors J.T. and D.G. from the

venire panel.

Affirmed.

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