Ismael Hernandez, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1022

Ismael Hernandez, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 2, 2018
Affirmed
Ross, Judge

Polk County District Court
File No. 60-CR-12-1195

Ismael Hernandez, Faribault, Minnesota (pro se appellant)

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

Greg Widseth, Polk County Attorney, Scott A. Buhler, Assistant County Attorney,
Crookston, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Worke, Judge; and Ross,
Judge.
U N P U B L I S H E D O P I N I O N
ROSS, Judge
A jury found Ismael Hernandez guilty of first-degree criminal sexual conduct for
sodomizing a heavily intoxicated woman, and we affirmed his conviction on direct appeal
over his argument that the district court abused its discretion by failing to appoint him
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substitute counsel. Hernandez petitioned for postconviction relief, asserting that he
received ineffective assistance of trial counsel and that the prosecutor presented perjured
testimony and withheld exculpatory evidence. The district court denied his petition entirely
after it held an evidentiary hearing to explore Hernandez’s withholding-evidence
allegation. We hold that Hernandez’s ineffective-assistance-of-counsel and perjury claims
are procedurally barred because he failed to raise them on direct appeal. And the evidence
supports the district court’s finding that the prosecutor did not withhold exculpatory
evidence. We therefore affirm.
FACTS
Ismael Hernandez and Jose Soto met M.F. at a Grand Forks party in May 2012 and
took her to a friend’s apartment. The pair stripped M.F. naked and forced her onto a bed.
Soto held M.F. down while Hernandez anally raped her. Then Hernandez left the room
because Soto told him that M.F. “was [Soto’s] for the rest of the night.” State v. Soto, 855
N.W.2d 303, 306 (Minn. 2014). Soto continued to rape M.F. repeatedly. Id.
Before his trial for first-degree criminal sexual conduct, Hernandez told the district
court that he was not satisfied with his public defender and wanted a different one. State v.
Hernandez, No. A13-1181, 2014 WL 1660701, at *1 (Minn. App. Apr. 28, 2014), review
denied (Minn. July 15, 2014). The district court refused to appoint substitute counsel and
explained that discharging his attorney would mean that Hernandez would need to hire a
private attorney, represent himself, or take his chances on standby counsel being available.
Id. Hernandez stuck with his attorney. A jury found him guilty , and the district court
sentenced him to 144 months in prison.
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Hernandez argued on direct appeal that the district court erred by telling him that he
would have to choose between hiring a private attorney and representing himself because
the district court had not first addressed whether Hernandez was entitled to substitute
counsel. Id. at *2. We rejected the argument. Id. at *2–3.
Hernandez petitioned the district court in 2017 for postconviction relief. His petition
asserts that he received ineffective assistance of counsel because his attorney failed to call
Soto as a trial witness and failed to adequately investigate the case, that the prosecutor
committed a Brady violation by failing to disclose evidence of Soto’s interview with police
during which Soto removed his clothes to show police that he had no scratches or bruises
arising from any combat with the victim, and that the victim lied at his trial. The district
court conducted an evidentiary hearing only on Hernandez’s claim that the prosecutor
failed to disclose Soto’s alleged disrobing during a police interview. The interviewing
officer’s hearing testimony and the video recording of the interview established that Soto
never removed any clothing during the interview. And the district court also found that the
prosecutor had in fact provided Hernandez with the recording.
The district court denied Hernandez’s postconviction petition. Hernandez appeals.
D E C I S I O N
We review the denial of Hernandez’s postconviction petition for an abuse of
discretion. Zornes v. State, 880 N.W.2d 363, 368 (Minn. 2016). We review legal issues de
novo and factual findings for clear error. Id. A postconviction court abuses its discretion
when its decision rests on an erroneous application of law or is against logic and the facts
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in the record. Bobo v. State, 860 N.W.2d 681, 684 (Minn. 2015). For the reasons that
follow, we see no error of law and no abuse of discretion.
Hernandez argues that he received ineffective assistance of counsel because his trial
attorney did not pursue material evidence, failed to call Soto as a witness at trial, and failed
to obtain statements from the victim and Soto before trial. All issues that are raised in a
direct appeal, as well as all issues that are known to the defendant but not raised, are
forfeited in a later petition for postconviction relief. Robinson v. State, 567 N.W.2d 491,
494 (Minn. 1997). The district court rejected Hernandez’s postconviction claim that his
trial attorney was ineffective because Hernandez failed to raise the claim on direct appeal.
Although Hernandez’s direct appeal did not include a claim of ineffective assistance of
trial counsel, neither Hernandez’s petition nor his supporting arguments assert any alleged
ineffectiveness that would have been unknown to him before he directly appealed. The
district court needed no evidentiary hearing to address and reject Hernandez’s
postconviction claim of ineffective assistance.
Hernandez does not convincingly establish that the victim lied . A witness’s false
testimony may, in some cases, warrant a new trial. The district court may order a new trial
because of false or perjured testimony if the court concludes that the false testimony came
from a material witness; that the jury might have reached a different conclusion without
the testimony; and that the party seeking the new trial was surprised by the false testimony
and was either unable to challenge the testimony during trial or unaware of its falsity until
after the trial. State v. Caldwell, 322 N.W.2d 574, 584–85 (Minn. 1982).
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The state maintains that Hernandez should have known of the supposedly false
testimony before his direct appeal and that he is therefore procedurally barred from
challenging his conviction based on it. When a defendant “either knew or should have
known of the purported perjured testimony at the time of trial” but “fail[s] to raise [a
challenge based on] it on direct appeal, he is precluded from raising it” in a postconviction
petition. Hanley v. State, 534 N.W.2d 277, 279 (Minn. 1995). Hernandez does not respond
to the state’s contention that his perjured-testimony claim is procedurally barred on this
ground. Because Hernandez knew or should have known of the allegedly perjured
testimony at the time of his direct appeal, he may not now challenge his conviction based
on it.
We add that the evidence offered by Hernandez to support the claim of perjured
testimony lacked sufficient credibility to justify an evidentiary hearing. Allegations in a
postconviction petition must have factual support that carries sufficient indicia of
trustworthiness to justify an evidentiary hearing. Caldwell v. State, 853 N.W.2d 766, 770
(Minn. 2014). Evidentiary hearings about allegedly perjured testimony are not generally
held without the sworn affidavit of a recanting witness or a third party. See, e.g., Caldwell,
853 N.W.2d at 771; Dobbins v. State, 788 N.W.2d 719, 732–34 (Minn. 2010); Opsahl v.
State, 677 N.W.2d 414, 419, 424 (Minn. 2004 ); Ferguson v. State, 6 45 N.W.2d 437, 446
(Minn. 2002). Hernandez did not submit an affidavit from any one. He submitted only a
handwritten letter from Soto in which Soto says he heard from others that they had heard
the victim admit to lying. The unsworn letter from Soto—Hernandez’s fellow rapist who
apparently falsely told Hernandez that he had removed clothes during his police
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interview—is hearsay about hearsay about hearsay that purports to challenge the testimony
of a victim repeatedly sexually assaulted by both Hernandez and Soto. It is difficult to
imagine a less reliable source. Since post- trial recant ations raise suspicions even when
they are embodied in sworn affidavits and testimony, State v. Ferguson, 742 N.W.2d 651,
659–60 (Minn. 2007), we are satisfied that the district court rightly chose not to administer
an evidentiary hearing based on Hernandez’s offering of Soto’s letter.
For related reasons we reject Hernandez’s contention that the state withheld
evidence that the interviewing officer examined Soto and saw that he had no marks or
bruises on his body consistent with the victim’s account. A defendant may obtain a new
trial by establishing that evidence favorable to the defendant was suppressed by the state
and that the suppression of this evidence prejudiced the defendant. Strickler v. Greene, 527
U.S. 263, 281–82, 119 S. Ct. 1936, 1948 (1999). No Brady violation occurs if the disputed
evidence was in fact disclosed, see Strickler, 527 U.S. at 282, 119 S. Ct. at 1948–49, so we
carefully review the record to determine whether the evidence was turned over to
Hernandez before trial. See State v. Whitson, 876 N.W.2d 297, 307 (Minn. 2016). It was.
The district court found that the disputed evidence was neither exculpatory nor
suppressed. The finding is irrefutable. Th e prosecutor timely disclosed the officer’s
interview with Soto both by describing it in a letter and by providing a copy of the video
recording. And both the recording and the officer’s testimony establish that Soto’s alleged
disrobing event never actually happened. The record supports the district court’s
conclusion that the disputed evidence was neither suppressed nor exculpatory.
Affirmed.