A16-1713

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1630
A16-1713

Wesley Eugene Brooks, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed May 15, 2017
Affirmed
Larkin, Judge

Scott County District Court
File Nos. 70-CR-09-17926; 70-CR-10-2169
Hennepin County District Court
File No. 27-CR-10-2851

Charles L. Hawkins, Arthur J. Waldon, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorn ey, Brittany D. Lawonn, Assistant County
Attorney, Minneapolis, Minnesota; and

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorney,
Shakopee, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Connolly, Judge; and Larkin,
Judge.
S Y L L A B U S
The rules announced in Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), State v.
Thompson, 886 N.W.2d 224 (Minn. 2016), cert. denied, 2017 WL 131941 (U.S. Mar. 20,
2
2017), and State v. Trahan, 886 N.W.2d 216 (Minn. 2016), regarding the search-incident-
to-arrest exception to the Fourth Amendment’s warrant requirement, are new rule s of
federal constitutional criminal procedure t hat generally do not apply retroactively on
collateral review of a final conviction.
O P I N I O N
LARKIN, Judge
Appellant challenges decisions of postconviction courts in Scott and Hennepin
Counties, which summarily den ied his requests for relief from three driving -while-
impaired convictions. Appellant argues that the postconviction courts erred by refusing to
retroactively apply Birchfield, 136 S. Ct. at 2160, Thompson, 886 N.W.2d at 224, and
Trahan, 886 N.W.2d at 216,1 and by denying his ineffective-assistance-of-counsel claims.
We conclude that the rules announced in Birchfield, Thompson, and Trahan regarding the
search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement are
new rules of federal constitutional criminal procedure that do not apply retroactively on
collateral review of appellant’s final convictions. And because the record conclusively
shows that appellant is not entitled to relief on his ineffective-assistance-of-counsel claims,
we affirm.

1 In the postconviction proceedings, as well as his brief to this court, Brooks relied on this
court’s decisions in State v. Thompson, 873 N.W.2d 873 (Minn. App. 2015), aff’d on other
grounds, 886 N.W.2d 224 (Minn. 2016), cert. denied, 2017 WL 131941 (U.S. Mar. 20,
2017), and State v. Trahan, 870 N.W.2d 396 (Minn. App. 2015), aff’d on other grounds,
886 N.W.2d 216 (Minn. 2016). Because the Minnesota Supreme Court affirmed this
court’s decisions in Thompson and Trahan, we cite the supreme court’s decisions i n our
analysis. See Thompson, 886 N.W.2d at 234; Trahan, 886 N.W.2d at 224.
3
FACTS
These appeals stem from appellant Wesley Euge ne Brooks’s three convictions of
first-degree driving while impaired (DWI). A detailed factual history of the convictions is
set forth in State v. Brooks, 838 N.W.2d 563, 565-66 (Minn. 2013). The facts relevant to
these appeals follow.
On July 31, 2009, Brooks was arrested for DWI in Scott County. An officer read
Brooks Minnesota’s implied-consent advisory, which informed him, in part, that refusing
to take a chemical test is a crime. Brooks agreed to provide a urine sample, which revealed
an alcohol concentration of 0.14.
On January 16, 2010, Brooks was arrested for DWI in Hennepin County. An officer
read Brooks Minnesota’s implied-consent advisory , and he agreed to provide a blood
sample. The sample revealed an alcohol concentration of 0.16.
On January 25, 2010, Brooks was arrested for DWI in Scott County. An officer
read Brooks Minnesota’s implied-consent advisory , and he agreed to provide a urine
sample. The sample revealed an alcohol concentration of 0.16.
The state charged Brooks with two counts of first -degree DWI based on each test
result. Brooks moved to suppress the results of the tests because the police obtained the
blood and urine samples without a warrant. The Scott County District Court denied
Brooks’s motion to suppress the urine tests, concluding that the underlying warrantless
searches were reasonable under the exigent -circumstances exception to the Fourth
Amendment’s warrant req uirement, based on the natural dissipation of alcohol. The
Hennepin County District Court denied Brooks’s motion to suppress the blood -test result,
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concluding that Brooks consented to the test. Brooks waived his right to a jury trial in each
case, and the cases proceeded to trial on stipulated facts. Brooks was convicted of one
count of first-degree DWI in each case.
Brooks appealed,2 and this court affirmed his convictions, reasoning that the natural
dissipation of alcohol constituted an exigent circumstance and that the warrantless searches
were therefore reasonable under the exigent -circumstances exception to the warrant
requirement. State v. Brooks , No. A11-1043, 2012 WL 1914073, at *2 (Minn. App.
May 29, 2012) (Hennepin County case) , vacated, 133 S. Ct. 1996 (2013), aff’d on other
grounds, 838 N.W.2d 563 (Minn. 2013) ; Brooks, 2012 WL 1570064, at *3 (Scott County
cases).
The Minnesota Supreme Court denied Brooks’s petition s for further review.
Brooks, 838 N.W.2d at 567. The United States Supreme Court granted certiorari review,
vacated the judgments of conviction , and remanded the cases to this court for further
consideration in light of Missouri v. McNeely , which held that the natural dissipation of
alcohol in the blood does not constitute a per se exigency justifying a warrantless search .
Brooks v. Minnesota, 133 S. Ct. 1996 (2013); Missouri v. McNeely, 133 S. Ct. 1552, 1556
(2013).
This court reinstated Brooks’s appeals. Brooks, 838 N.W.2d at 567. The Minnesota
Supreme Court granted the state’s petition s for accelerated review , concluded that the

2 The Scott County cases were consolidated. State v. Brooks , No. A11-1042, 2012 WL
1570064, at *1 (Minn. App. May 7, 2012), vacated, 133 S. Ct. 1996 (2013), aff’d on other
grounds, 838 N.W.2d 563 (Minn. 2013).
5
warrantless searches were reasonable under the consent exception to the warrant
requirement, and affirmed Brooks’s convictions. Id. at 567, 572-73.
Brooks petitioned for postconviction relief in Scott and Hennepin counties. Brooks
asserted, in part, that his consent to chemical testing was involuntary because it was based
on misleading and inaccurate implied-consent advisories. He relied on Birchfield, 136 S.
Ct. at 2160, and this court’s decisions in Thompson, 873 N.W.2d at 873, and Trahan, 870
N.W.2d at 396. He also asserted that he received ineffective assistance from his trial and
appellate attorneys.
The postconviction courts denied relief. The Scott County postconviction court
ruled that , with the exception of Brooks’s claim of ineffective assistance of appellate
counsel, all of his claims were procedurally barred under State v. Knaffla, 309 Minn. 246,
243 N.W.2d 737 (1976) . The postconviction court also ruled that “[e]ven if [Brooks’s]
claims were not barred by Knaffla, they lack merit.” In so ruling, the court concluded that
this court’s decision in Thompson did not apply retroactively to Brooks’s convictions.
The Hennepin County postconviction court similarly ruled that Brooks’s “claims,
other than ineffective assistance of appellate counsel, are barred under Knaffla” and that
his “claims fail on the merits.” In so ruling, the court concluded that Birchfield, as well as
this court’s decisions in Thompson and Trahan, “do not apply retroactively to a conviction
that, like [Brooks’s], was final before the cases were decided.”
Brooks appeals, challenging the decisions of the postconviction courts.
6
ISSUES
I. Did the postconviction courts err by refusing to retroactively apply Birchfield,
Thompson, and Trahan to Brooks’s convictions?
II. Did the postconviction courts err by summarily denying Brooks’s claim s of
ineffective assistance of trial counsel?
III. Did the postco nviction courts err by summarily denying Brooks’s claim s of
ineffective assistance of appellate counsel?
ANALYSIS
Appellate courts review the denial of postconviction relief without an evidentiary
hearing for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013). In
doing so, we review the postconviction court’s legal determinations de novo and its factual
findings for clear error . Bonga v. State , 797 N.W.2d 712, 718 (Minn. 2011). When a
petition for postconviction relief foll ows a direct appeal of a conviction, all claims raised
in the direct appeal and all claims that the defendant knew or should have known of at the
time of the direct appeal are procedurally barred. Knaffla, 309 Minn. at 252, 243 N.W.2d
at 741; see also Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007).
I.
Brooks contends that the postconviction courts “erred in concluding [that Birchfield,
Thompson, and Trahan] do not apply retroactively to [his] claim that the [Minnesota
implied-consent advisory] produced nothing more than coerced consent to his blood
alcohol tests.” Brooks argues that these “cases have clarified DWI law, holding a state
cannot criminalize an individual’s refusal to submit to a warrantless search of his blood or
7
urine, and [that] such cases must be applied retroactively to [his] case.” More specifically,
he argues that the cases “would have had a drastic impact on [his] appeal, [because] the
law now bolsters [his] initial assertion that his blood alcohol tests were coerced.” He
concludes that the cases “render the warrantless searches of his blood and urine illegal.”
Whether Birchfield, Thompson, and Trahan apply retroactively to Brooks’s
convictions is a legal question that we review de novo. See O’Meara v. State, 679 N.W.2d
334, 338 (Minn. 2004), overruled on other grounds by Danforth v. Minnesota , 552 U.S.
264, 128 S. Ct. 1029 (2008). It is also a question of first impression.
As is relevant here, Birchfield, Thompson, and Trahan announced rules regarding
application of the search-incident-to-arrest exception to the Fourth Amendment ’s warrant
requirement in the context of chemical testing in DWI cases . In Birchfield, the United
States Supreme Court held that the Fourth Amendment permi ts a warrantless breath test,
but not a w arrantless blood test, incident to a lawful arrest for DWI . 136 S. Ct. at 2185.
The Supreme Court also held that a criminal test-refusal charge based on what would have
been an unconstitutional search violates the Fourth Amendment. Id. at 2186.
In Thompson, the Minnesota Supreme Court applied Birchfield and held that “a
warrantless urine test does not fall within the search -incident-to-arrest ex ception to the
Fourth Amendment’s warrant requirement ” and that a criminal test-refusal charge based
on what would have been an unconstitutional search violates the Fourth Amendment. 886
N.W.2d at 226. In Trahan, the Minnesota Supreme Court applied Birchfield and held that
a warrantless blood test does not fall within the search-incident-to-arrest exception to the
Fourth Amendment’s warrant requirement and that a criminal test-refusal charge based on
8
what would have been an unconstitutional search violates the Fourth Amendment . 886
N.W.2d at 220-21, 224.
Birchfield was a consolidated appeal, involving three petitioners. 136 S. Ct. at 2170-
72. Petitioner Bernard was charged with test refusal based on his refusal to submit to a
warrantless breath test after his arrest for DWI . Id. at 2171. Because the search would
have been constitutional under the search -incident-to-arrest exception to the warrant
requirement, the Supreme Court held that his test-refusal charge did not violate the Fourth
Amendment. Id. at 2186. Petitioner Birchfield was convicted of test refusal based on his
refusal to submit to a warrantless blood tes t after his arrest for DWI . Id. at 2170-71.
Because the search would have been unconstitutional, the Supreme Court held that his test-
refusal conviction violated the Fourth Amendment.3 Id. at 2186.
The third petitioner in Birchfield, Beylund, did not refus e a chemical test , and he
was not charged with test refusal. Id. at 2172. Instead, Beylund “submitted to a blood test
after police told him that the law required his submission, and his license was then
suspended and he was fined in an administrative proceeding.” Id. at 2186. The United
States Supreme Court remanded Beylund’s case, reasoning that
[t]he North Dakota Supreme Court held that Beylund’s consent
was voluntary on the erroneous assumption that the State could
permissibly compel both blood and breath tests. Because
voluntariness of consent to a search must be determined from

3 Defendants Thompson and Trahan were similarly convicted of test refusal based on their
refusals to submit to warrantless chemical testing after they were arrested for DWI.
Thompson, 886 N.W.2d at 227 (re fusal of blood and urine tests); Trahan, 886 N.W.2d at
219-20 (refusal of blood test). Because the searches would have been unconstitutional, the
Minnesota Supreme Court reversed each defendant ’s conviction based on the Fourth
Amendment. Thompson, 886 N.W.2d at 233-34; Trahan, 886 N.W.2d at 224.
9
the totality of all the circumstances, we leave it to the state
court on remand to reevaluate Beylund’ s consent given the
partial inaccuracy of the officer’s advisory.

Id. (citation and quotation omitted).
Brooks is similarly situated to petitioner Beylund, because he consented to chemical
testing and the Minnesota Supreme Court determined that his consent was valid. Compare
Brooks, 838 N.W.2d at 572, with Birchfield, 136 S. Ct. at 2172. Thus, Brooks argues that
if Birchfield, Thompson, and Trahan apply retroactively to his convictions, the cases
require reevaluation of the Minnesota Supreme Court’s determination regarding the
validity of his consent. We consider Brooks’s arg ument for retroactive application of
Birchfield, Thompson, and Trahan in this limited context, that is, a request for reevaluation
of a prior judicial determination that consent to chemical testing was voluntary.
In deciding whether to retroactively apply a new rule of federal constitutional
criminal procedure to cases decided before the rule ’s announcement , Minnesota courts
apply the standard established in Teague v. Lane , 489 U.S. 288, 109 S. Ct. 1060 (1989).
Danforth v. State, 761 N.W.2d 493, 494 (Minn. 2009). Under Teague, “new constitutional
rules of criminal procedure will not be applicable to those cases which have become final
before the new rules are announced ” unless they fall within one of the two following
exceptions to the general rule . 489 U.S. at 310-11, 109 S. Ct. at 1075-76. First, “a new
rule should be applied retroactively if it places certain kinds of primary, private individual
conduct beyond the power of the criminal law -making authority to proscribe.” Id. at 311,
109 S. Ct. at 1075 (quotation omitted). Second, “watershed rules of criminal procedure”
apply retroactively. Id. at 311, 109 S. Ct. at 1076.
10
Brooks does not dispute that the Birchfield, Thompson, and Trahan search-incident-
to-arrest rules are rules of federal constitutional criminal procedure. See O’Connell v.
State, 858 N.W.2d 161, 166 (Minn. App. 2015) ( concluding that a rule was “ clearly
procedural as it modified the process law enforcement must follow before administering a
blood, breath, or urine test ”), review granted (Minn. Mar. 25, 2015) and order granting
review vacated (Minn. Oct. 20, 2015) . And Brooks concedes that his convictions were
final before the announcement of these rules. See Hutchinson v. State, 679 N.W.2d 160,
162 (Minn. 2004) (stating that a case is “final, for purposes of retroactivity,” when “a
judgment of conviction has been rendered, the availability of appeal exhausted, and the
time for a petition for certiorari elapsed or finally denied” (quotations omitted)). However,
Brooks contends that Birchfield, Thompson, and Trahan apply retroactively to his
convictions because the decisions did not announce new rules of law.
The Teague court provided the following instruction for determining whether a case
announced a new rule:
It is admittedly often difficult to determine when a case
announces a new rule, and we do not attempt to define the
spectrum of what may or may not constitute a new rule for
retroactivity purposes. In general, however, a case announces
a new rule when it breaks new ground or imposes a new
obligation on the States or the Federal Government. To put it
differently, a case announces a new rule if the result was not
dictated by precedent existing at the time the defend ant’s
conviction became final.

489 U.S. at 301, 109 S. Ct. at 1070 (citations omitted).
11
Brooks argues that the Supreme Court’s “holding in Birchfield is nothing more than
another logical result dictated by precedent” and that because “Birchfield merely clarified
and restated existing Fourth Amendment law, its holding is applicable to [his convictions].”
In Birchfield, the United States Supreme Court acknowledged that the search -
incident-to-arrest exception to the warrant requirement i s long -standing. However, the
Court indicated that it was breaking new ground regarding that exception:
[T]he founding era does not provide any definitive guidance as
to whether [blood and breath tests to measure alcohol
concentration] should be allowed i ncident to arrest. Lacking
such guidance, . . . we examine the degree to which they
intrude upon an individual’ s privacy and the degree to which
they are needed for the promotion of legitimate governmental
interests.

136 S. Ct. at 2174-76 (quotation and footnote omitted). This language indicates that the
Court’s decision was not dictated by precedent and suggests that the Court set forth new
rules regarding the search-incident-to-arrest exception.
Moreover, although this court has not addressed the potential retroactivity of the
search-incident-to-arrest rules announced in Birchfield, we have held that the rule
announced in McNeely regarding the exigent-circumstances exception to the Fourth
Amendment’s warrant requirement “does not retroactively apply on collateral review of a
final conviction.” O’Connell, 858 N.W.2d at 163. This court concluded that McNeely
established a new rule because it changed the law such that “[l]aw enforcement can no
longer rely on natural dissipation alone to create a n exigent circumstance. Rather, law
enforcement is now obligated to obtain a warrant or establish a valid exception to the
warrant requirement based on the totality of the circumstances.” Id. at 165 -66 (citation
12
omitted). Birchfield, Thompson, and Trahan similarly established—for the first time—that
law enforcement cannot rely on the search -incident-to-arrest exception to obtain a
warrantless blood or urine sample from a suspect lawfully arrested for DWI.
Based on the Supreme Court’s statement in Birchfield that definitive guidance was
lacking and this court’s treatment of the McNeely rule as new, we conclude that Birchfield,
Thompson, and Trahan announced new rules of federal constitutional criminal procedure
that do not apply retroactively on collateral review of a final conviction unless one of the
Teague exceptions applies.
Brooks does not argue that either of the Teague exceptions applies here. In fact, he
concedes that they do not apply , and he bases his request for retroactive application of
Birchfield, Thompson, and Trahan solely on his argument that the cases did not announce
new rules. Because Brooks does not argue that either of the Teague exceptions applies, we
do not consider their application in this case.
In sum, the rules annou nced in Birchfield, Thompson, and Trahan regarding the
search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement are
new rules of federal constitutional criminal procedure that do not apply retroactively on
collateral review of a final conviction unless one of the Teague exceptions applies. Brooks
does not argue that either Teague exception applies here. We therefore hold that t he
postconviction courts did not err by denying Brook s’s requests for postconviction relief
under Birchfield, Thompson, and Trahan. Because the postconviction courts correctly
denied relief on this ground, we do not review the courts’ rulings that the claims are
procedurally barred under Knaffla.
13
II.
Brooks contends that the postconviction court s erred by denying his claim s of
ineffective assistance of trial counsel without an evidentiary hearing . Brooks asserts that
his “[t]rial counsel’s failure to obtain . . . independent blood alcohol test [s] and failure to
object to the deficient waiver[s] of [his] right to testify demonstrates ineffective assistance
of trial counsel.” Although Brooks asserts that his trial attorneys were ineffective for two
reasons, his argument focuses on his attorneys’ failure to obtain independent blood-alcohol
tests. He does not address his attorneys’ failure to object to his allegedly deficient waivers.
An assignment of error based on mere assertion and not supported by legal authority
or argument is waived unless prejudicial error is obvious on mere inspection. State v.
Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) , aff’d on other grounds, 728 N.W.2d
243 (Minn. 2007). Moreover, issues not adequately briefed are waived. State v. Butcher,
563 N.W.2d 776, 780 (Minn. App. 1997) , review denied (Minn. Aug. 5, 1997) . Because
Brooks does not provide any legal argument in support of his assertion that his trial
attorneys were ineffective for failing to challenge his waiver s and prejudicial error is not
obvious on mere inspection, we limit our review to Brooks’s assertion that his trial
attorneys were ineffective for failing to obtain independent blood-alcohol tests.
A postconviction court is required to hold a hearing on a petition “[u]nless the
petition and the files and records of the proceeding conclusively show that the petitioner is
entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2014); Leake, 737 N.W.2d at 535. An
evidentiary hearing is unnecessary if the petitioner fails to allege facts that are sufficient to
entitle him to the relief requested. Davis v. State, 784 N.W.2d 387, 392 (Minn. 2010). This
14
court “must consider [the petitioner’s] allegations in the light most favorable to him , and
also consider the files and records of the proceeding, including the State’ s arguments. ”
Nicks, 831 N.W.2d at 505-06 (quotation omitted). However, a llegations in a
postconviction petition must be “more than argumentative assertions without factual
support.” Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quotation omitted).
A determination whether a defendant re ceived ineffective assistance of counsel
involves a mixed question of law and fact that is reviewed de novo. Dereje v. State, 837
N.W.2d 714, 721 (Minn. 2013). We generally analyze i neffective-assistance-of-counsel
claims as trial errors under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
Id. To prevail under Strickland, a petitioner “must show that counsel’s representation fell
below an objective standard of reasonableness” and “there is a reasonable probability that,
but for counsel’ s unprofessional errors, the result of the proceeding would have been
different.” 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; see also State v. Rhodes, 657
N.W.2d 823, 842 (Minn. 2003) (applying Strickland to a claim for ineffective assistance
of counsel).
Appellate courts apply “a strong presumption that [an attorney’s] performance falls
within the wide range of ‘reasonable professional assistance.’” State v. Jones, 392 N.W.2d
224, 236 (Minn. 1986) (quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). A
reviewing court generally “will not review attacks on counsel ’s trial strategy.” Opsahl v.
State, 677 N.W.2d 414, 421 (Minn. 2004) ; see also Ives v. State , 655 N.W.2d 633, 636
(Minn. 2003) (stating that matters of trial strat egy “ will not be reviewed later by an
appellate court as long as the trial strategy was reasonable ”). “ The extent of counsel’ s
15
investigation is considered a part of trial strategy .” Opsahl, 677 N.W.2d at 421. “It is
within trial counsel’ s discretion to forgo investigation of leads not reasonably likely to
produce favorable evidence.” Gustafson v. State, 477 N.W.2d 709, 713 (Minn. 1991).
Brooks asserts that “ there is no doubt trial counsel ’s failure to request . . .
independent test [s] of [his] blood and urine was deficient ” and that the failure “left
potentially exculpatory evidence unchecked.” But Brooks has not provided factual support
for these argumentative assertions. Moreover, Brooks’s chemical tests showed that his
alcohol concentrations in the underlying cases were 0.14, 0.16, and 0.16, well over the legal
limit of 0.08. Brooks, 838 N.W.2d at 565-66; see Minn. Stat. § 169A.20, subd. 1 (Supp.
2009) (providing that it is a crime for any person to drive a motor vehicle when “the
person’s alcohol concentration . . . is 0.08 or more”). Brooks does not explain why his trial
attorneys had any reason to doubt the accuracy of his test results or to reasonably believe
that independent tests would produce favorable evidence . Given that the test results
showed alcohol concentrations at or near twice the legal limit, we do not discern a reason
to ignore the strong presumption that Brooks’s trial attorneys pro vided reasonable
professional assistance.
In sum, Brooks did not allege facts sufficient to show that his attorneys’ decisions
to forgo independent testing were anything other than unreviewable, investigative strategy.
The record therefore conclusively shows that Brooks is not entitled to relief on his claims
of ineffective assistance of trial counsel , and the postconviction courts did not err by
denying these claims without a hearing.
16
III.
Brooks contends that the postconviction courts erred by denying his claims of
ineffective assistance of appellate counsel. Brooks argues that his “[a]ppellate counsel’s
failure to raise the glaring ineffectiveness of trial counsel demonstrates ineffective
assistance of appellate counsel.”
Appellate counsel “is not required to raise claims on direct appeal that appellate
counsel legitimately concluded would not prevail.” Williams v. State, 764 N.W.2d 21, 32
(Minn. 2009). And “ lawyers representing appellants should be encouraged to limit their
contentions on appeal at least to those which may be legitimately regarded as debatable .”
Dobbins v. State, 788 N.W.2d 719, 729 (Minn. 2010) (quotation omitted). Moreover, to
prevail on a claim of ineffective assistance of appellate counsel based on appellate
counsel’s failure to raise ineffective assistance of trial counsel, the appellant must show
that trial counsel was ineffective. Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) . If
appellant’s “trial counsel was effective, then his appellate counsel could not have been
ineffective for failing to raise ineffective assistance of trial counsel.” McDonough v. State,
675 N.W.2d 53, 56 n.4 (Minn. 2004).
Because Brooks did not allege facts sufficient to show that his trial attorneys were
ineffective, the record conclusively shows that Brooks is not entitled to relief on his claims
of ineffective assistance of appellate counsel. The postconviction courts therefore did not
err by denying these claims without a hearing.
17
D E C I S I O N
Because the search-incident-to-arrest rules announced in Birchfield, Thompson, and
Trahan are new rules of federal constitutional criminal procedure and Brooks does not
contend that either of the Teague exceptions applies, the postconviction courts did not err
by refusing to retroactively apply Birchfield, Thompson, and Trahan on collateral review
of Brooks’s final convictions. And because the record conclusively shows that Brooks is
not entitled to relief on his ineffective-assistance-of-counsel claims , the postconvictio n
courts did not err by summarily denying these claims.
Affirmed.