Demetreus Anthony McGinnis, 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This opinion will be unpublished and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
A17-1674

Demetreus Anthony McGinnis, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 25, 2018
Affirmed
Peterson, Judge

Stearns County District Court
File No. 73-CR-14-2166

Demetreus Anthony McGinnis, Faribault, Minnesota (pro se appellant)

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

Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assist ant County
Attorney, St. Cloud, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Peterson, Judge; and Worke,
Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this appeal from the summary denial of his petition for postconviction relief,
appellant argues that the district court erred in failing to order an evidentiary hearing on
his various claims, including ineffective assistance of appellate counsel. We affirm.

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FACTS
Following an incident in which M.G. was shot and killed at around noon on March
13, 2014, appellant Demetreus Anthony McGinnis gave a statement to police at 2:35 p.m.
In the statement, McGinnis told police that he met with two guys in a car to sell them
something. One of the guys got into McGinnis’s car, handed McGinnis fake money, and
then started to leave the car. When McGinnis grabbed the guy’s arm, the guy turned
around, hit McGinnis in the face, and started running. McGinnis chased him, and the guy
pulled out a gun before hitting McGinnis some more. The two wrestled, and the second
guy joined the fray; both guys were kicking and kneeing McGinnis. The gun wen t off
twice, and after it went off the second time, one of the guys said “somethin’ like oh, s--t.”
Then he grabbed the gun, which was lying on the ground, pointed it at McGinnis, and the
gun just clicked. After that, the two guys drove away. During the police interview,
McGinnis said, “I know that he got hit.” When McGinnis told the officer who was taking
his statement that he did not want to talk anymore, the officer stopped asking questions
about the shooting incident.
McGinnis was indicted on six c ounts: (1) first -degree intentional murder,
(2) second-degree intentional murder, (3) second -degree unintentional felony murder,
(4) third-degree unintentional murder, (5) prohibited person in possession of a firearm, and
(6) third-degree witness tampering . During a six-day jury trial, a redacted copy of the
statement that McGinnis gave to police was entered into evidence. The parties stipulated
to redactions of parts of the statement, including McGinnis’s invocation of his right to

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remain silent. Statem ents that McGinnis made before invoking his right to silence were
included in the statement admitted into evidence.
The jury found McGinnis guilty of second -degree unintentional felony murder,
third-degree murder, and witness tampering. The district cou rt imposed a 210 -month
executed sentence for the second-degree-murder offense.
McGinnis filed a direct appeal, arguing that the jury’s verdict s were inconsistent,
the evidence was insufficient to support the third -degree-murder and witness -tampering
convictions, the jury instructions were erroneous, the prosecutor committed misconduct,
and he received ineffective assistance of trial counsel. T his court affirmed . State v.
McGinnis, No. A15 -1043 (Minn. App. July 11, 2016), review denied (Minn. Sept. 28,
2016).
McGinnis filed a pro se petition for postconviction relief, arguing that the prosecutor
engaged in prejudicial misconduct, the evidence was insufficient to support his convictions,
the jury instructions were overbroad and vague, he was denied effe ctive assistance of trial
and appellate counsel, and he has newly discovered evidence. The petition included the
following claims of ineffective assistance of appellate counsel , (1) “Because appellate
counsel did not receive either discovery or exhibits f rom trial counsel, he could not have
known the facts surrounding the most meritorious claims available to Petitioner,” and
(2) “Because appellate counsel did not provide Petitioner with his trial transcripts before
his direct appeal was complete, Petitioner could not have found issues himself and filed an
effective supplemental brief.” McGinnis twice moved to amend his petition to (1) clarify

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his claim of insufficient evidence and (2) address newly discovered evidence that appellate
counsel “failed to obtain Petitioner’s unredacted statement to police.”
Without specifically granting McGinnis’s motion s to amend, the postconviction
court addressed the merits of the proposed amendment motions and denied the petition
without an evidentiary hearing. This appeal followed.
D E C I S I O N
An appellate court reviews the denial of a petition for postconviction relief for an
abuse of discretion. Colbert v. State , 870 N.W.2d 616, 62 1 (Minn. 2015). “A
postconviction court abuses its discretion when its decision is based on an erroneous
application of the law or is against logic and the facts in the record.” Nunn v. State, 868
N.W.2d 230, 232 (Minn. 2015).
“A petition for postconviction relief after a direct appeal has been completed may
not be based on grounds that could have been raised on direct appeal of the conviction or
sentence.” Minn. Stat. § 590.01, subd. 1 (2016); see also Colbert , 870 N.W.2d at 626
(reiterating “Knaffla1 rule” that “once a direct appeal has been taken, all claims raised in
the direct appeal and all claims that were known or should have been known but were not
raised in the direct appeal are procedurally barred” (emphasis omitted)).
In his postconviction petition, McGinnis raised claims of prosecutorial misconduct,
insufficient evidence, improper jury instructions, ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, and newly discovered evidence. The district

1 State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

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court concluded that most of these claims are procedurally barred either because McGinnis
raised them in his direct appeal or because McGinnis knew or should have known of the
claims when he filed his direct appeal . We agree that , with one exception, McGinnis’s
claims are procedurally barred because the claims are based on events that occurred during
McGinnis’s trial, and, therefore, McGinnis knew or should have known of the claims when
he filed his direct appeal. But McGinnis’s claim that his appellate counsel was ineffective
is based on events that occurred after his trial , and it is at least arguable that McGinnis
could not have known about the claim when he filed his direct appeal. We will, therefore,
address the claim.
“The Sixth Amendment guarantees a defendant the effective assistance of counsel
at critical stages of a criminal pro ceeding.” Lee v. U.S. , 137 S. Ct. 1958, 1965 (2017)
(quotation omitted).
To establish ineffective assistance of appellate counsel, the
petitioner bears the burden of showing both that counsel’s
performance was not objectively reasonable and, but for
counsel’s errors, the result of the proceeding would have been
different. The petitioner must overcome the presumption that
counsel’s performance fell within a wide range of reasonable
representation.

Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009) (quotation and citation omitted); see also
Minn. Stat. § 590.04, subd. 1 (2016) (sta ting that postconviction court is not required to
hold an evidentiary hearing if “the files and records of the proceeding conclusively show
that the petitioner is entitled to no relief”).
McGinnis argues that he invoked his right to remain silent when he was questioned
by police, and the prosecutor committed misconduct when he used McGinnis’s post-arrest

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silence in the state’s case -in-chief, as substantive evidence of guilt, and to impeach
McGinnis. Although the prosecutor’s alleged misconduct occurred at trial, McGinnis
contends that t he misconduct was not raised as an issue in his direct appeal because his
appellate counsel failed to obtain the entire criminal file from his trial counsel . McGinnis
contends that, because his appellate counsel never obtained the entire file, counsel had only
the redacted copy of his statement to police that was introduced at trial, and, without the
unredacted copy that was in the file , appellate counsel did not know that McGinnis had
invoked his right to remain silent during the police questioning. Consequently, appellate
counsel did not argue that the prosecutor committed misconduct by improperly referring
to his silence.
The postconviction court concluded that “there is no substantive merit to petitioner’s
new claims of prosecutorial misconduct. As petitioner cannot show that the results of his
appeal would have been different if his appellate counsel had obtained the entire file, his
appellate counsel did not perform deficiently.” Although it is not clear from the record
why appellate counsel did not obtain the entire file from trial counsel, even if we assume
that appellate counsel’s performance was deficient, we agree with the postconviction court
that McGinnis is not entitled to relief because he failed to show that the results of his appeal
would have been different if appellate counsel had obtained the entire file.
The United States Supreme Court has held “that the use for impeachment purposes
of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated
the Due Process Clause of the Fourteenth Amendment.” Doyle v. Ohio, 426 U.S. 610, 619,
96 S. Ct. 2240, 2245 (1976). In Doyle, two men were arrested following an alleged

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marijuana sale, and, after receiving Miranda warnings, they said nothing about the alleged
sale. Id. at 611-16, 96 S. Ct. at 2242-44. At their separate trials for the alleged illegal sale,
both men testified that they had been framed and gave an exculpatory explanation for the
events that police observed. Id. at 612-13, 96 S. Ct. at 2242. During cross-examination of
each man at his trial, the prosecutor asked why the man had not told the frame -up story to
the police officer when he arrested them. Id. at 613, 96 S. Ct. at 2242. The Supreme Court
held that the cross -examination was impermissible and explained that the warnings
mandated by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 1624-27 (1966),
require that a person taken into custody be advised
immediately that he has the right to remain silent, that anything
he says may be used against him, and that he has a right to
retained or appointed counsel before submitting to
interrogation. Silence in the wak e of these warnings may be
nothing more than the arrestee’s exercise of these Miranda
rights. Thus, every post-arrest silence is insolubly ambiguous
because of what the State is required to advise the person
arrested. Moreover, while it is true that the Miranda warnings
contain no express assurance that silence will carry no penalty,
such assurance is implicit to any person who receives the
warnings. In such circumstances, it would be fundamentally
unfair and a deprivation of due process to allow the arr ested
person’s silence to be used to impeach an explanation
subsequently offered at trial.

Id. at 617-18, 96 S. Ct. at 2244-45 (footnote omitted) (citation omitted).
McGinnis’s postconviction claim that he received ineffective assistance of appellate
counsel is based on the premise that he invoked his right to remain silent when police
interviewed him approximately two hours after the shooting. But, unlike the two
defendants in Doyle, who said nothing about the alleged drug sale after they were arrested
and received Miranda warnings, McGinnis gave police a statement about the events

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surrounding the shooting. Then, at trial, McGinnis testified about events that occurred
during the two hours between the shooting and his arrest that he had not described in h is
statement to police.
At various times during McGinnis’s trial, the prosecutor referred to McGinnis ’s
failure to include these events in his statement to police . McGinnis argues that, when he
failed to include the events in his statement to police, he was exercising his right to remain
silent about the events, and the prosecutor’s references were misconduct because they
impermissibly used his post-arrest silence as substantive evidence of guilt and to impeach
him.
But, as the postconviction court con cluded, the Supreme Court rejected a similar
argument in Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180 (1980). In Anderson, the
defendant was arrested while driving a stolen car and, after receiving a Miranda warning,
told police “that he stole the c ar in Ann Arbor from the vicinity of Washtenaw and Hill
Streets, about two miles from the local bus station.” 447 U.S. at 404-05, 100 S. Ct. at 2180.
The defendant was charged with murdering the car’s owner, and, on direct examination at
his trial, testified “that he took [the] unattended automobile from the parking lot of Kelly’s
Tire Co. in Ann Arbor.” Id.
During cross-examination, the defendant agreed that Kelly’s Tire Company and the
bus station could be seen from the window of the Washtenaw County Jail and that, during
the time he spent in the jail, he had plenty of opportunity to look out and see Kelly’s Tire
and the bus station and that he saw cars being parked there. Id. at 405, 100 S. Ct. at 2181.
The prosecutor then asked the defendant wheth er that was where he got the idea to come

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up with the story that he took the car from that location, and the defendant denied it. Id.
The prosecutor then asked whether the defendant thought it was odd that, if his story at
trial was the truth, he did not tell anybody that story when he was arrested. Id. at 406, 100
S. Ct. at 2181. The defendant was convicted, and, after an unsuccessful appeal, sought a
writ of habeas corpus in federal court. Id. The federal district court withheld the writ, but
the c ourt of appeals reversed, holding “that ‘the prosecutor’s questions about
[respondent’s] post-arrest failure to tell officers the same story he told the jury violated due
process’ under the rule of Doyle v. Ohio.” Id. at 406-07, 100 S. Ct. at 2181 (alteration in
original) (quoting Charles v. Anderson, 610 F.2d 417, 422 (6th Cir. 1979)).
On further review, t he Supreme Court reversed and explained that the cross-
examination, taken as a whole, did not refer to the defendant’s exercise of his right to
remain silent, but, instead, asked the defendant why, if his trial testimony was true, he did
not tell the police that he stole the car from the parking lot instead of telling them that he
took it from the street. Id. at 408-09, 100 S. Ct. at 2182-83. The Supreme Court determined
that “[t]he questions were not designed to draw meaning from silence, but to elicit an
explanation for a prior inconsistent statement.” Id. at 409, 100 S. Ct. at 2182. The Supreme
Court then concluded
that Doyle does not apply to the facts of this case. Each of two
inconsistent descriptions of events may be said to involve
“silence” insofar as it omits facts included in the other version.
But Doyle does not require any such formalistic understanding
of “silence,” and we find no reason to adopt such a view in this
case.

Id.

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We conclude that, like the cross -examination in Anderson, the prosecutor’s
references to McGinnis’s failure to include certain events in his statement to police were
not designed to draw meaning from silence, but to elicit an explanation for a prior
inconsistent statement. Thus, the prosecutor did not commit misconduct by referring to
the omissions from McGinnis’s statement to police, and McGinnis has failed to show that
the result of his appeal would have been different if appellate counsel had obtained an
unredacted copy of his statement to police and argued that the prosecutor improperly
referred to McGinnis’s post-arrest silence.
The postconviction court did not abuse its discretion in summarily rejecting
McGinnis’s postconviction petition without a hearing.
Affirmed.