Peter Louis John, 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This opinion will be unpublished and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
A17-1098

Peter Louis John, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 5, 2018
Affirmed
Hooten, Judge

Ramsey County District Court
File No. 62-CR-14-1708

Peter Louis John, Moose Lake, Minnesota (pro se appellant)

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

John J. Choi, Ramsey County Attorney, Adam E. Petras, Assistant County Attorney, St.
Paul, Minnesota (for respondent)

Considered and decided by Smith, T., Presiding Judge; Larkin, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges the postconviction court’s denial of his petition for
postconviction relief, arguing that the Knaffla rule does not bar his claims. We affirm.
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FACTS
A jury found appellant Peter Louis John guilty of aiding and abetting second-degree
murder and the district court sentenced him to 198 months in prison. We affirmed John’s
conviction in 2016, and the Minnesota Supreme Court denied his petition for further
review. State v. John , No. A15 -0303, 2016 WL 1288370 (Minn. App. Apr. 4, 2016),
review denied (Minn. June 21, 2016). A complete discussion of the unde rlying facts can
be found in our opinion deciding John’s direct appeal. Id. In February 2017 , John filed
his first petition for postconviction relief, raising four claims: (1) the district court erred by
allowing several witnesses to testify while they w ere intoxicated; (2) the evidence at trial
was insufficient beyond a reasonable doubt to prove every element of the charged offense;
(3) the prosecutor’s closing argument improperly and prejudicially referred to th e
prosecutor’s personal opinion of John’s guilt; and (4) his trial counsel provided ineffective
assistance. The postconviction court initially denied John’s motion for failure to file proof
of service on the attorney general and county attorney. After correcting the service error,
John filed a motion for reinstatement of his petition.
While not specifically ruling on John’s motion to reinstate, the postconviction court
denied John’s petition on the ground that all claims were procedurally barred by Knaffla.
John appealed. He also filed a mot ion requesting appointment of counsel for his appeal,
which we denied because he was provided an appellate public defender for his direct
appeal.
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D E C I S I O N
John contends that the postconviction court abused its discretion by denying his
postconviction petit ion. “All grounds for relief must be stated in the petition or any
amendment thereof.” Minn. Stat. § 590.02, subd. 1(1) (2016). Appellate courts “review
the denial of a petition for postconviction relief for an abuse of discretion.” Matakis v.
State, 862 N.W.2d 33, 36 (Minn. 2015). “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) (quotatio n omitted). Factual
“findings are reviewed to determine whether there is sufficient evidentiary support in the
record.” Scherf v. State, 788 N.W.2d 504, 507 (Minn. 2010). Postconviction courts may
“deny a petition without holding a hearing if the petition, files, and records conclusively
show that the petitioner is not entitled to relief.” Hooper v. State, 888 N.W.2d 138, 141
(Minn. 2016). Accordingly, a postconviction court may deny untimely claims or claims
that are procedurally barred by the Knaffla rule. Colbert v. State , 870 N.W.2d 616, 622
(Minn. 2015).
The Knaffla rule is “that where 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). There are two exceptions to the Knaffla bar: (1) the claim “is so novel that the
legal basis for it was unavailable on direct appeal”; or (2) “fairness requires review and the
petitioner did not deliberately and inexcusably fail to raise the claim on direct appeal.”
McKenzie v. State, 754 N.W.2d 366, 369 (Minn. 2008) (quotation omitted).
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John’s Postconviction Petition
John knew or should have known about all of the claims raised in his postconviction
petition at the time of his direct appeal.
In his petition, John first alleges that two of the state’s witnesses, M.H. and R.B.,
were incompetent to testify because they were intoxicated while testifying. See Minn. Stat.
§ 595.02, subd. 1(f) (2016) (“Persons of unsound mind and persons intoxicated at the time
of their production for examination are not co mpetent witnesses if they lack capacity to
remember or to relate truthfully facts respecting which they are examined.”). John argues
that the witnesses were “drunk to the point that they could not stand up in court, or even
talk the right way so the jury can hear them.” John was present in court for the testimony
of both witnesses, and both were questioned on their possible intoxication during trial.
John knew or should have known of their possible intoxication at the time of his direct
appeal.1
Next, John claims that the evidence was insufficient to find him guilty beyond a
reasonable doubt. John brought a motion at trial for a judgment of acquittal based on lack
of credible evidence, which was denied. All of the evidence used to convict John was
known to John before his direct appeal, and he knew or should have known about this claim

1 M.H. testified he had “a couple of shots” of hard alcohol “[v]ery early that morning,”
around 4:30 or 5:00, and then “went back to sleep.” R.B., during examination by the court
regarding the waiver of his Fifth Amendment right against self-incrimination, testified that
he was “not under the influence of any drugs or alcohol or anything else.”

5
at that time. 2 See Azure v. State , 700 N.W.2d 443, 448 (Minn. 2005) (holding that
postconviction court did not abuse its discretion in determining appellant’s sufficie ncy of
evidence claim was procedurally barred because it was not raised in appellant’s direct
appeal).
John further a lleges that the prosecutor’s closing argument was improper and
prejudicial because the prosecutor made references to his personal opinion of John’s guilt.
But John was present for the prosecutor’s closing argument and knew or should have
known of this claim at the time of his direct appeal. See id. (stating that appellant knew
“what the state had asserted in its closing argument” and holding that postconviction court
did not abuse its discretion in determining that appellant’s claim of prosecutorial
misconduct during closing was procedurally barred because it was not raised in appellant’s
direct appeal).
Finally, John claims that his trial counsel failed to provide effective representation.
“When a claim of ineffective assistance of trial counsel can be adjudicated on the basis of
the trial record, it must be brought on direct appeal or it is barred by the Knaffla rule if
raised in a postconviction petition.” Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007).
But if the claim cannot be resolved based on the trial record alone and additional evidence
is required to decide the claim, the Knaffla bar does not apply and the claim may be brought
in a postconviction proceeding. Id. at 535–36; Torres v. State, 688 N.W.2d 569, 572 (Minn.

2 As part of John’s direct appeal —during a discussion of the admissibility of statements
John made while in a squad car at the scene, and that any error was harmless —we
commented that “the evidence strongly supported a guilty ve rdict.” John, No. A15-0303,
2016 WL 1288370, at *4.
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2004). This is part of the second Knaffla exception, permitting review on the merits for
the sake of fairness. Torres, 688 N.W.2d at 572.
All five of the ineffective assistance of trial counsel claims John raised in his petition
could be evaluated on the basis of the trial record alone and are Knaffla barred. In his
petition, John claims ineffective assistance of counsel for: (a) failure to object to bias and
prejudice during trial; (b) failure to file a motion for lack of evidence; (c) failure to conduct
a meaningful investigation; (d) failure to call witne sses on behalf of John; and (e) the
combined effect of the claimed errors. John knew or should have known about these claims
at the time of his direct appeal, and it was inexcusable to fail to raise them at that time. See
McKenzie, 754 N.W.2d at 369 –70 (holding that Knaffla barred claim of ineffective
assistance of counsel based on “ failure to object to testimony, the racial remarks during
closing arguments, the witness statement [appellant] wished to rebut, and the ev idence
presented by the defense”); Vance v. State , 752 N.W.2d 509, 514 (Minn. 2008) (holding
allegations that appellant’s “ trial counsel failed to conduct an investigation, talk to any
witnesses, and call any witnesses to testify are ” Knaffla barred); cf. Wright v. State , 765
N.W.2d 85, 90 (Minn. 2009) (holding appellant’s insufficiency of evidence claim Knaffla
barred); Sessions v. State, 666 N.W.2d 718, 722 (Minn. 2003) (holding that appellant’s two
individual claims were barred, and declining to consider his claim on cumulative effect of
errors).
In his briefing before this court, John also raises an ineffective assistance claim
based upon the failure of appellate counsel in his direct appeal to provide him with the trial
transcript in a timely manner and the failure of both his trial counsel and appellate counsel
7
to raise federal law issues. John also alleges that his trial counsel failed to a dequately
explain the charges to him so that he could understand the options available to him. John
claims that because of these failures of counsel, he was denied due process and a fair trial.
However, all of these claims are forfeite d because they were not raised in John’s petition
for postconviction relief and “[a]ll grounds for relief must be stated in the petition or any
amendment thereof.” Minn. Stat. § 590.02, subd. 1(1) (2016); see also Azure, 700 N.W.2d
at 447 (“Because [appellant] did not raise the claim in his postconviction petition and the
postconviction court made no findings on the issue, we have no postconviction ruling to
review. Accordingly, we hold that [appellant’s] ineffective assistance of appellate counsel
claim has been waived for the purposes of this postconviction appeal.”).3
The postconviction court’s order also held that John’s claims of prejudicial jury
instructions and ineffective assistance of trial counsel for violating attorney-client privilege
were Knaffla barred. These claims were raised in John’s brief before the postconviction
court, but neither is alleged in John’s postconviction petition and neither is advocated for
in John’s briefing before this court, and both are therefore forfeited for not being raised in
the petition and waived for not being argued before this court. 4 See Azure, 700 N.W.2d at
447.

3 Azure refers to this argument as waiver instead of forfeiture, but the Minnesota Supreme
Court recently clarified that a right is forfeited when not timely asserted, and waived when
voluntarily given up. State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015).
4 John also argues that the state’s brief was untimely, but we granted the state an extension
of time to file its brief and the state e-filed the brief by the new deadline.

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Exceptions and Challenges to Knaffla
John argues that both Knaffla exceptions apply to his claims ; that Knaffla is
unconstitutional because it does not allow his case to be heard on the merits and because
he would have to be an attorney to know of the legal errors ; that the state would not be
prejudiced by having to re-prosecute its case against him; and that he is actually innocent.
The first Knaffla exception does not apply because none of John’s claims present
novel legal issues. John does not explain which of his claims are novel, or why they are
novel, and the most recent case John cites in his briefs was decided four months before his
brief was filed in his direct appeal. Because John’s claims are not novel and all of them
were available at the time of his direct appeal, the first Knaffla exception does not apply.
The second Knaffla exception also does not apply. Fairness does not require review
of any of John’s claims because he fails to present “a colorable explanation of why he failed
to raise these claims previously.” See Perry v. State, 731 N.W.2d 143, 147 (Minn. 2007).
John argues that his appellate counsel failed to provide him with the trial transcript in time
to allow John to file a supplemental brief in his direct appeal, and that he would have raised
the issues raised in his postconviction petition in his supplemental brief if he had timely
received the transcript.
A defendant has the right to file a supplemental brief to raise appellate issues on his
own. See Minn. R. Crim. P. 28.02, subd. 5(13); see also Case v. State, 364 N.W.2d 797,
800 (Minn. 1985) ( discussing value and purpose of pro se brief in ensuring all issues are
raised in direct appeal). The Minnesota Rules of Criminal Procedure give a defendant the
9
right to access the trial transcript. Minn. R. Crim. P. 28.02, subd. 5 (17)–(18). The rule
states:
(17) . . . A defendant, whether or not choosing to proceed pro
se, may also file with the court a supplemental brief. The
supplemental brief must be filed within 30 days after the State
Public Defender’s office files its initial brief.

(18) If a defendant requests a copy of t he transcript, the State
Public Defender’s office must confer with the defendant
concerning the need for the transcript. If the defendant still
requests a copy of it, one must be provided to the defendant
temporarily.

Id. John admits that he did receive the transcript, but argues that he did not receive it until
after we had decided his direct appeal.
Even if true, there is no violation of the rules because they do not specifically require
that a defendant is to receive the transcript prior to filing a supplemental brief nor do they
provide for an automatic extension of the time for the filing of a supplemental brief in the
event a defendant has not been provided with a transcript. Rather, all that is required by
the rules is that a defendant must be provided with a transcript if he again requests a copy
after conferring with the public defender’s office.
If John did not receive the transcript in time to file his supplemental brief, his
remedy was to make our court aware of this fact and ask for an ex tension of time to file a
supplemental brief. See Minn. R. Civ. App. P. 126.02. John argues that because he is not
an attorney and does not understand the law, he did not know of this option. But “[t]he
rules of procedure apply the same to all litigants whether represented by counsel or not,”
and a “pro se defendant will be held to the standard of an attorney in presenting his appeal.”
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State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988). Because Minn. R. Crim. P. 28.02 does
not grant John the option to bring unraised claims in a postconviction motion, and John
took no action to make this court aware that he needed more time to file a supplemental
brief in his direct appeal, fairness does not require review of John’s claims.
Next, John asserts that Knaffla is unconstitutional because it does not allow his
claims to be heard on the merits, and because it unreasonably requires him to have legal
knowledge to recognize legal errors in order to have raised them in his direct appeal. “An
assignment of error in a brief based on ‘mere assertion’ and not supported by argument or
authority is waived unless prejudicial error is obvious on mere inspection.” State v.
Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006), aff’d, 728 N.W.2d 243 (Minn. 2007).
John provides no argument or authority to support his argument that Knaffla, by preventing
his claims from being heard on the merits, is unconstitutional. Because John had the ability
to bring these claims in his direct appeal, any unconstitutionality of barring him fro m
bringing the claims now is not “obvious on mere inspection.” See id.; cf. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S. Ct. 2514, 2518 (1992) (“Unless a habeas petitioner shows cause
and prejudice, a court may not reach the merits of . . . procedurally defaulted claims in
which the petitioner failed to follow applicable state procedural rules in raising the claims.”
(citations omitted)).
And, John cites no relevant authority for his argument that Knaffla
unconstitutionally requires him to have the legal knowledge to recognize legal errors in
order to have raised them in his direct appeal. He relies on cases addressing civil pleading
standards for prisoners in pro se civil rights actions, but cites to no authority which supports
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the unconstitutionality o f requiring him to raise claims he knew or should have known
about in his direct appeal. Moreover, John was provided with counsel for his direct appeal,
and was therefore not required to recognize all legal errors on his own.5
As for John’s argument th at the state will not be prejudiced by having to re -
prosecute him, he cites no authority and fails to explain why a lack of prejudice to the state
is an exception to the Knaffla bar. John’s claim that he is actually innocent is one of the
requirements to meet the newly discovered evidence exception for time-barred claims. See
Minn. Stat. § 590.01, subd. 4 (2016); Roberts v. State, 856 N.W.2d 287, 292 (Minn. App.
2014), review denied (Minn. Jan. 28, 2015). However, John does not claim to have
discovered new evidence and this argument is without merit.
Because all of the claims John raised in his postconviction petition are Knaffla
barred, the postconviction court did not abuse its discretion in denying John’s petition
without holding a hearing.
Affirmed.

5 John argues that he should have counsel for this appeal as well, but we have already
considered his motion for appointment of counsel and denied it.