Joseph Duane Gustafson, Jr., 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This opinion will be unpublished and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
A17-1806

Joseph Duane Gustafson, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 23, 2018
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CR-11-5352

Joseph Duane Gustafson, Jr., Moose Lake, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Michael Ric hardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Kirk, Judge; and Jesson,
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 an order summarily denying his pro se petition for
postconviction relief, appellant argues that his convictions should be reversed based on

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ineffective assistance of appellate counsel and various other grounds that could have been
raised on direct appeal. We affirm.
FACTS
In 2012, a jury found appellant Joseph Duane Gustafson not guilty of one count of
second-degree assault and guilty of racketeering, terroristic threats, kidnapping, three
counts of controlled-substance offenses, two counts of ineligible person in possession of a
firearm, and four counts of theft by swindle. The district court sentenced Gustafson to 210
months, based on a criminal-history score of four and a severity-level assignment of X for
the unranked racketeering conviction. 1 Gustafson appealed his convictions and his
sentence, alleging insufficiency of the evidence, prejudicial evidentiary rulings, assignment
of an improper sentencing severity level, and errors in his criminal -history score. State v.
Gustafson (Gustafson I), No. A12-1293, 2013 WL 4404241, at *1-6 (Minn. App. Aug. 19,
2013), review denied (Minn. Oct. 23, 2013). Gustafson also filed a pro se supplemental
brief in which he asserted the following errors: (1) denial of due process arising out of the
addition of two charges after he posted bail; (2) ineffective assistance of trial counsel;
(3) the state faile d to disclose evidence in a timely manner; (4) false witness testimony;
(5) bad faith by police officers during the investigation; (6) Confrontation Clause
violations; and (7) prosecutorial misconduct. Id. at *7-8. This court affirmed Gustafson’s

1 The crime of racketeering did not have a severity -level ranking under the Minnesota
Sentencing Guidelines. Minn. Sent. Guidelines V (2008). A sentencing judge establishes
the appropriate severity level for an unranked offense by considering the gravity of the
conduct and the similarity to other ranked offenses. Minn. Sent. Guidelines IIA & cmt.
II.A.04 (2008).

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convictions and rejected his pro se claims, but reversed and remanded his sentence for
correction of his criminal-history score. Id. at *3-8.
The district court resentenced Gustafson on May 4, 2014, using a criminal-history
score of three, rather than four, but sentenced him again to 210 months because this
sentence was still within the correct guidelines-sentence range. Gustafson appealed to this
court, which affirmed the sentence. State v. Gustafson, No. A14-1098 (Minn. App. Mar.
9, 2015), review granted (Minn. May 19, 2015) and order granting review vacated (Minn.
Sept. 15, 2015).
On May 18, 2017, Gustafson filed a pro se postconviction petition raising 12 claims:
(1) ineffective assistance of trial and ap pellate counsel; (2) prosecutorial misconduct in
opening and closing statements; (3) Brady violations; (4) perjured testimony; (5) vindictive
prosecution; (6) failure to disclose an expert witness; (7) speedy-trial violations and police
misconduct; (8) erroneous admission of hearsay evidence ; (9) erroneous admission of
Spreigl testimony; (10) judicial bias; (11) cumulative error; and (12) lack of personal
jurisdiction.
Without an evidentiary hearing, the district court concluded that all but one of
Gustafson’s claims were barred by Minn. Stat. § 590.01, subd. 1 (2016), and that Gustafson
had not established any of the exceptions to the Knaffla2 rule. The district court considered
Gustafson’s allegation of ineffective assistance of appellate couns el, determined that he
had not established a claim warranting relief, and concluded that Gustafson had not alleged

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

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disputed material facts that warranted an evidentiary hearing. Gustafson appeals from the
postconviction order.
D E C I S I O N
We review the district court’s summary denial of a postconviction petition for an
abuse of discretion. Dikken v. State, 896 N.W.2d 873, 876 (Minn. 2017). In doing so, we
review questions of law de novo and factual findings for clear error. Id. We will reverse
the district court’s decision if the court “exercised its discretion in an arbitrary or capricious
manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Id. (quotation omitted). The petitioner has the burde n of alleging facts that, if
proved, would entitle him to relief. Carridine v. State, 867 N.W.2d 488, 492 (Minn. 2015).
A defendant may challenge his conviction through a postconviction petition when
direct appellate relief is not available. Minn. Stat. § 590.01, subd. 1. But “[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 a conviction.” Id.; see also Hooper v. State,
888 N.W.2d 138, 143 (Minn. 2016) (explaining procedural bar known as the Knaffla rule);
Knaffla, 309 Minn. at 252, 243 N.W.2d at 741 (establishing 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”).
“An unraised claim is not Knaffla-barred, however, if (1) the claim is novel or
(2) the interests of fairness and justice warrant relief. ” Griffin v. State, 883 N.W.2d 282,

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286 (Minn. 2016) (quotation omitted).3 Under the second exception, “a viable claim must
have substantive merit and must be asserted without deliberate or inexcusable delay. ” Id.
(quotation omitted). A claimed exception must be based on more than “an argumentative
assertion without factual support”; otherwise, “it fails as a matter of law.” Zornes v. State,
903 N.W.2d 411, 421 (Minn. 2017).
Of the 12 issues that Gustafson raised in his postconviction petition, 11 were either
raised in his direct appeal, known at the t ime of the appeal, or should have been known at
the time of the direct appeal. See Ouk v. State, 884 N.W.2d 392, 394 (Minn. 2016). None
of these 11 claims is novel, and Gustafson has not alleged facts that show that failing to
assert any of the claims in his direct appeal was neither deliberate nor inexcusable.
The sole issue that could not have been raised in Gustafson’s direct appeal and,
therefore, is not barred under section 590.01, subdivision 1, or the Knaffla rule, is whether
Gustafson’s appellate counsel was ineffective. See Nissalke v. State , 861 N.W.2d 88, 94
(Minn. 2015) (stating that a defendant alleging ineffective assistance of counsel must show
that counsel’s representation fell below an objective standard of reasonableness and there
is a reasonable probability that the result of the proceeding would have been different but
for counsel’s errors); McDonough v. State , 675 N.W.2d 53, 56 (Minn. 2004) (applying
same rule to analysis of ineffective assistance of appellate counsel).

3 The supreme court has not definitively ruled on whether the Knaffla exceptions are still
valid despite amendments to the postconviction statute in 2005. The supreme court
continues to acknowledge the existence of the exceptions, and this court continues to apply
them. See Hooper v. State, 838 N.W.2d 775, 787 n.2 (Minn. 2013).

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Gustafson argues that his appellate counsel was ineffective because “[a]ppellate
counsel flat out refused to argue that the state failed to provide [Gustafson] with effective
assistance of counsel for his trial.” In State v. Mosley, 895 N.W.2d 585, 592 (Minn. 2017),
the supreme court rejected a claim of ineffective assistance of appellate counsel based on
defendant’s allegation that appellate counsel refused to raise a claim of ineffective
assistance of trial counsel. “[A]ppellate counsel is not required to raise a claim if counsel
could have legitimately concluded it would not prevail.” Mosley, 895 N.W.2d at 592
(quotation omitted).
Although Gustafson’s appellate counsel did not argue that Gustafson received
ineffective assistance of trial counsel , Gustafson arg ued in his pro se supplemental brief
filed in his direct appeal that trial counsel was ineffective. Gustafson I, 2013 WL 4404241,
at *7. This court rejected Gustafson’s argument, concluding that all of the claimed
instances of ineffective assistance were matters of trial strategy, none of which “indicate[d]
representation below an objective standard of reasonableness.” Id.; see also Mosley, 895
N.W.2d at 592 (stating that “decisions about objections at trial are matters of trial strategy,
which [an appel late court] will not review ” (quotation omitted)); Andersen v. State , 830
N.W.2d 1, 10 (Minn. 2013) (defining “trial strategy” to include investigation and selection
of evidence). Gustafson’s postconviction claim of ineffective assistance of appellate
counsel is based on ineffective-assistance-of-trial-counsel claims that this court rejected in

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Gustafson’s direct appeal.4 The postconviction court’s conclusion that Gustafson failed to
establish ineffective assistance of appellate counsel because he failed to establish
ineffective assistance of trial counsel is not an erroneous interpretation of law , and its
decision to deny Gustafson’s postconviction petition was not an abuse of discretion.
A postconviction court may refuse to schedule an evidentiary hearing if “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 (2016). “ [T]he postconviction court may
summarily deny a petition that is untimely or proc edurally barred.” Hooper, 888 N.W.2d
at 141 (quotation omitted). All but one of Gustafson’s claims are procedurally barred under
section 590.01, subdivision 1, and the Knaffla rule because he raised them, or could have
raised them, in his direct appeal . The sole exception is Gustafson’s claim of ineffective
assistance of appellate counsel, which we have concluded is without merit. The
postconviction court did not abuse its discretion by declining to schedule an evidentiary
hearing.
Affirmed.

4 Gustafson appears to raise a constitutional challenge to the Knaffla bar. We do not
consider pro se claims on appeal that are not supported by argument or legal authority.
State v. Bartylla, 755 N.W.2d 8, 22 (Minn. 2008).