Jeremia Joseph Loper, 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This opinion will be unpublished and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
A18-0194

Jeremia Joseph Loper, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 13, 2018
Affirmed
Kirk, Judge

Stearns County District Court
File No. 73-CR-14-3180

Jeremia Joseph Loper, Moose Lake, Minnesota (pro se appellant)

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

Janelle P. Kendall, Stearns County Attorney, Chad T. May, Assistant County Attorney, St.
Cloud, Minnesota (for respondent)

Considered and decided by Kirk, Presiding Judge; Reilly, Judge; and Smith, Tracy
M., Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
In this pro se appeal from an order denying postconviction relief, appellant argues
that the postconviction court abused its discretion in denying his petition without an
evidentiary hearing. We affirm.

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FACTS
Appellant Jeremia Joseph Loper was charged with second-degree criminal sexual
conduct in violation of Minn. Stat. § 609.343, subd. 1(a) (2010), and attempted indecent
exposure in violation of Minn. Stat. §§ 60 9.17, 617.23, subd. 2(1) (2010), for conduct
involving a 10- to 11-year-old victim when he was 19 to 20 years old. After a bench trial,
the district court found appellant guilty of both charges, entered convictions on both
offenses, and sentenced him to 70 months in prison. The facts underlying this case can be
found in this court’s opinion affirming appellant’s conviction of second -degree criminal
sexual conduct following appellant’s direct appeal, in which he challenged the sufficiency
of the evi dence supporting his conviction. See State v. Loper , No. A15-0509, 2016 WL
764140, at *1 (Minn. App. Feb. 29, 2016), review denied (Minn. May 17, 2016).
After this court affirmed his conviction, appellant filed a postconviction petition,
which he amended once, and raised a number of claims.1 The postconviction court denied
appellant’s petition without an evidentiary hearing , determining that his claims of
ineffective assistance of appellate counsel and denial of access to the courts entitled him to
no relief, and that all his remaining postconviction claims are Knaffla-barred. This appeal
follows.

1 Appellant’s postconviction claims include: (1) prosecutorial misconduct; (2) ineffective
assistance of trial counsel; (3) ineffective assistance of appellate counsel; (4) denial of
access to the courts; (5) denial of right to counsel during presentence investigation;
(6) failure of the district court to protect his trial rights; (7) improper evidence introduced
at trial; and (8) insufficiency of the evidence. Appellant also argued that the cumulative
effect of the alleged errors violated his due-process rights and require a new trial.

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D E C I S I O N
Appellant challenges the denial of his postconviction petition without an evidentiary
hearing, arguing that the postconviction court failed to liberally construe his petition and
that the interests-of-justice exception to the Knaffla bar permits review of his otherwise
barred claims.
Appellate courts “review a denial of a petition for postconviction relief, including a
denial of relief without an evidentiary hearing, for an abuse of discretion.” State v. Nicks,
831 N.W.2d 493, 503 (Minn. 2013). “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.” Id. (quotation omitted). We review the postconviction court’s conclusions of law
de novo. Moua v. State, 778 N.W.2d 286, 288 (Minn. 2010).
A petition for postconviction relief must include “a statement of the facts and the
grounds upon which the petition is based and the relief desired.” Minn. Stat. § 590.02,
subd. 1(1) (2016). A postconviction court must “liberally construe the petition . . . and
shall look to the substance thereof and waive any irregularities or defects in form.” Minn.
Stat. § 590.03 (2016); see also Wallace v. State, 820 N.W.2d 843, 849 (Minn. 2012) (noting
that a postconviction court must liberally construe a petition in determining whether the
petitioner has invoked an exception for failing to timely assert a claim). A postconviction
court may dismiss the petition without an evidentiary hearing if, taking the facts alleged in
the light most favorable to the petitioner, “the petition and the files and records of the
proceeding conclusively show that the petitioner is entitled to no relief.” Minn. Stat.

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§ 590.04, subd. 1 (2016); Fox v. State , ___N.W.2d ___, ___, 2018 WL 2945100, at *2
(Minn. June 13, 2018).
A petitioner is not entitled to postconviction relief if his claim is Knaffla-barred.
Colbert v. State, 870 N.W.2d 616, 626 (Minn. 2015). Under the Knaffla rule, “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.” Id.; see also Minn. Stat. § 590.01, subd. 1(2) (2016) (“ 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.”).
There are two recognized exceptions to the Knaffla bar. Wright v. State , 765
N.W.2d 85, 90 (Minn. 2009). A claim is not Knaffla-barred if the petitioner (1) “presents
a novel legal issue” or (2) “if the interests of justice require the court to review the claim.”
Id. “ Under the interests-of-justice exception to the Knaffla rule, the court may review a
claim as fairness requires when the claim has substantive merit and the petitioner did not
deliberately and inexcusably fail to raise the issue in the direct appeal or a previous
postconviction petition.” Colbert, 870 N.W.2d at 626.
We first consider whether the postconviction court erred in determining that
appellant’s claims of ineffective assistance of appellate counsel and denial of access to the
courts, which appellant contends excuse his failure to bring his otherwise Knaffla-barred
claims in his direct appeal, entitle him to no relief.

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I. The postconviction court did not err in determining that appellant’s claim of
ineffective assistance of appellate counsel entitles him to no relief.
Appellant argues that he received ineffective assistance of appellate counsel because
his counsel failed to (1) investigate certain trial records and (2) adequately communicate
with him. We disagree.
Ineffective-assistance-of-counsel claims involve mixed questions of law and f act
subject to de novo review. Carney v. State , 692 N.W.2d 888, 890 –91 (Minn. 2005). A
claim of ineffective assistance of appellate counsel is not barred by Knaffla in a first
postconviction petition because it cannot be raised on direct appeal. Leake v. State, 737
N.W.2d 531, 536 (Minn. 2007). The “postconviction petition must be more than
argumentative assertions without factual support, and an evidentiary hearing is
unnecessary if the petitioner fails to allege facts that are sufficient to entitle h im or her to
the relief requested.” Id. at 535 (citation and quotation omitted). Thus, to receive an
evidentiary hearing on a claim of ineffective assistance of counsel, the petitioner must
“allege facts which would affirmatively prove that his counsel ’s representation fell below
an objective standard of reasonableness and that there is a reasonable probability that, but
for counsel ’s unprofessional errors, the result of the proceeding would have been
different.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (quotations omitted).
A. Investigation of trial records
Appellant contends that his appellate counsel failed to adequately investigate a
statement that he gave to a police investigator, which the state introduced at trial in a
redacted form . In his petition, a ppellant alleged that the redactions to his statement

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improperly edited interview questions, cast his responses as admitting to conduct that he
did not admit to in the o riginal statement, and omitted alibi information, and that his trial
counsel failed to inform him of the redactions. Appellant also alleged that he specifically
asked his appellate counsel to investigate the di screpancies in the statements , but his
counsel conducted only a limited investigation and informed him that the claim wa s
without merit.
Here, even if we accept appellant’s description of his original statement as true, the
facts alleged in his petition do not establish a reasonable probability that the outcome of
trial woul d have been different. The redacted statement presented the investigator’s
question to appellant as, “You may have touched where you shouldn’t have touched, but
you’re telling me it wasn’t intentional,” to which appellant replied, “Yes.” Appellant
alleged that the investigator actually asked him, “You may have touched them where you
shouldn’t have touched them, but you’re telling me it wasn’t intentional .” But appellant
made no allegation that the term, “them,” did not encompass a reference to the victim. The
evidence in the record supports the post conviction court’s conclusion that the redactions
were made to appellant’s statement only to remove references to another alleged victim.
Appellant does not explain how the statement in its unredacted form is not an admission
that he unintentionally touch ed both the victim and a nother person where he should not
have touched.
With regard to appellant’s allegation that the redacted statement omitted responses
relevant to his alibi, he failed in his petition to identify the specific responses that he claims
were omitted or to explain their relevance to his alibi. On appeal, appellant contends that

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the omitted responses would have shown that he did not admit to living in the same
apartment building as the victim during the relevant timeframe. But the redacted statement
included responses by appellant in which he disputed living at the apartment during the
timeframe and claimed that the events he was being asked about happened one year earlier,
as well as his admission that he moved back to the apartment in la te August 2011.
Appellant failed to show how any omitted portions of his statement, which he did not
specify, would have made a difference in establishing his alibi.
Moreover, following the bench trial, the district court made a number of findings of
fact in support of its conclusion that the evidence proved beyond a reasonable doubt that
appellant had sexually assaulted the victim. Among these, the district court found that the
victim credibly testified that appellant intentionally touched her bare breast with his hand.
The district court made no findings regarding any admissions by appellant and did not rely
on the redacted statement as an admission of guilt. Therefore, the record does not
demonstrate a reasonable probability that, but for the admission of the redacted statement,
the result of the trial would have been different. Accordingly, even assuming without
deciding that appellant’s appellate counsel unreasonably failed to investigate his claim
regarding his statements to the police investigator , he cannot show that his counsel’s
decision resulted in prejudice.
B. Adequate communication
Appellant also argues that he received ineffective assistance of appellate counsel
because of difficulties communicating with his counsel. In his petition , appellan t
specifically alleged that he was denied private consultation with his appellate counsel

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because he had access only to a phone located in a public area of the prison, that he had to
make collect phone calls, that he received only two postcards to use for written
communication, and that his counsel refused to meet with him in person to review his file.
In his postconviction petition, appellant cited a federal court decision from the
Eighth Circuit as support for his argument that an accused person receives ineffective
assistance of counsel if he is denied private consultation with his counsel, and that requiring
a detainee to meet with his counsel in a public area is a violation of that privacy. Johnson-
El v. Schoemehl, 878 F.2d 1043, 1053-54 (8th Cir. 1989). However, Johnson-El involved
a constitutional challenge for deprivation of access to counsel during pretrial criminal
proceedings and did not address access to appellate counsel following a trial. Id. at 1051.
Further, this court is bound only by dec isions of the Minnesota Supreme Court and the
United States Supreme Court. Citizens for a Balanced City v. Plymouth Congregational
Church, 672 N. W.2d 13, 20 (Minn. App. 2003). Appellant has cited no Minnesota case
holding either that a prisoner has a right to consult with appellate counsel in a private area
of the prison or that appellate representation may fall below an objective standard of
reasonableness based on the quantity of appellate counsel’s phone calls, meetings, or
written communications. Here, it is clear from appellant’s petition that he and his counsel
communicated by phone and letter. Even accepting appellant’s allegations as true, they do
not establish that his counsel’s representation fell below an objective standard of
reasonableness.
Because the facts alleged in appellant’s petition, even taken in the light most
favorable to him, do not provide adequate support for either of his ineffective-assistance-

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of-appellate-counsel claims, we conclude that the postconviction court did not err in
determining, without an evidentiary hearing, that these claims entitle him to no relief.
II. The postconviction court did not err in determining that appellant’s claim of
denial of access to the courts entitles him to no relief.

Appellant argues that he was denied access to the courts during his direct appeal ,
which he contends excuses his failure to bring the claims deemed Knaffla-barred by the
postconviction court because he otherwise would have raised those claims in a pro se
supplemental brief. Appellant alleged in his petition that he was denied the tools to
meaningfully assert his rights because he had no access to caselaw in the prison library,
which impeded his ability to conduct legal research, that the prison provided him only five
free sheets of paper, and that the prison would not provide him free envelopes. Appellant
argues that his level of access violated Bounds v. Smith, in which the United States Supreme
Court recognized that prisoners have constitutional due-process rights to access the courts.
430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977).
In Bounds v. Smith , the Supreme Court held that “the fundamental constitution al
right of access to the courts requires prison authorities to assist inmates in the preparation
and filing of meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828, 97 S. Ct.
at 1498 (emphasis added). In State v. Seifert, the Minnesota Supreme Court held that the
state provides prisoners meaningful access to the courts “ either by providing counsel for
discretionary appeals or by providing an adequate la w library .” 423 N.W.2d 368, 372
(Minn. 1988). The Minnesota Supreme Court also held that “[t]he defendant may not have

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it both ways. He must either accept appointed appellate counsel or proceed pro se at his
own risk, which, we might add, is considerable . If he makes that choice, the defendant
must proceed with whatever limited resources are on hand. ” Id. at 373. When a prisoner
receives “adequate assistance from an attorney he ha[s] meaningful access to the courts.”
West v. State , 390 N.W.2d 368, 371 (Minn. App. 1986) , review denied (Minn. Aug. 27,
1986).
Here, the state provided appellant with an appellate public defender to represent him
in his direct appeal, and he accepted. Because the facts alleged in appellant’s petition do
not demonstrate ineffective assistance of appellate counsel, appellant cannot show that he
was denied access to the courts regardless of his inability to conduct his own legal research.
As in Seifert, appellant may not have it both ways. Appellant received meaningful access
to the courts through the adequate assistance of his appellate public defender . T he
postconviction court did not err in determining, without an evidentiary hearing, that
appellant’s claim of denial of access to the courts entitles him to no relief.
III. The postconviction court did not err in determining that appellant’s remaining
postconviction claims are Knaffla-barred.
Appellant does not dispute that he knew or should have known about his remaining
claims and failed to raise them in his direct appeal. See Colbert, 870 N.W.2d at 626
(discussing application of Knaffla bar to postconviction claims that should have been raised
in direct appeal). Rather, appellant argues that his claims of ineffective assistance of
counsel and denial of access to the courts excuse his failure to have brought these other
claims in his direct appeal and satisfy the interests-of-justice exception to the Knaffla bar.

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Because appellant’s ineffective -assistance-of-appellate-counsel and denial -of-access-to-
the-courts claims are his only asserted excuse for failing to bring the claims in his dire ct
appeal that he concedes would otherwise be Knaffla-barred, and because we conclude that
neither claim entitles him to any postconviction relief, the interests-of-justice exception to
the Knaffla bar does not apply to permit postconviction review of his remaining claims.
We conclude that the postconviction court did not err in determining that appellant’s
remaining claims are Knaffla-barred and in denying his petition without an evidentiary
hearing.
Affirmed.