Thomas John Rassmussen, Jr., petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1150

Thomas John Rassmussen, Jr., petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 4, 2019
Affirmed; motion denied
Bratvold, Judge

Wright County District Court
File No. 86-CR-15-563

Thomas J. Rassmussen, Jr., Faribault, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant County Attorney,
Buffalo, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant challenges the district court’s order summarily denying his petition for
postconviction relief . Appellant contends that the postconviction court erroneously
determined that his claims of ineffective assistance of trial counsel and insufficiency of the
2
evidence are procedurally barred, and that his claim of ineffective assistance of appellate
counsel fails on the merits. Because appellant raised his claims of ineffective assistance of
trial counsel and insufficient evidence in his direct appeal, and because appellate counsel’s
representation did not fall below the objective standard of reasonableness, we affirm.
FACTS
In November 2014, a fire damaged appellant Thomas Rassmussen’s townhouse.
After an investigation, the state charged Rassmussen with first-degree arson. A jury found
Rassmussen guilty in January 2016, and the district court sentence d Rassmussen to 48
months in prison. Represented by counsel, Rassmussen appealed his judgment of
conviction and raised one issue in his principal brief —whether the state’s evidence was
insufficient to prove his guilt beyond a reasonable doubt. Additionally , Rassmussen filed
a pro se supplemental brief arguing that his trial attorney f ailed to provide effective
assistance of counsel.
This court affirmed the judgment. State v. Rassmussen , No. A16-1215, 2017 WL
3013212, at *4 (Minn. App. July 17, 2017) (Rassmussen I), review denied (Sept. 19, 2017).
First, we determined that the circumstantial evidence “taken as a whole, is consistent with
Rassmussen intentionally setting fire to his townhouse, and insufficient to support any
other rational hypothesis as to the cause of the fire.” Id. at *3. Second, we rejected his pro
se argument that his trial counsel was constitutionally ineffective. Id. at *4. Rassmussen,
still represented by appellate counsel, petitioned for further review, which the supreme
court denied.
3
Rassmussen petitioned for postconviction relief in March 2018 and raised a number
of issues, including ineffective assistance of trial and appellate counsel as well as
insufficiency of the evidence. The district court summarily denied Rassmussen’s petition
for postconviction relief in April 2018. This appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion in determining that Rassmussen’s
claims of ineffective assistance of trial counsel and insufficiency of the evidence
are procedurally barred.

This court reviews a summary denial of a postconviction petition for an abuse of
discretion. Anderson v. State, 913 N.W.2d 417, 422 (Minn. 2018). Additionally, we review
a postconviction court’s decision to deny an evidentiary hearing or a new trial for an abuse
of discretion. See Caldwell v. State , 853 N.W.2d 766, 770 (Minn. 2014) (evidentiary
hearing); State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000) (new trial). In reviewing the
postconviction court’s decision to deny relief , we review legal conclusions de novo and
underlying factual findings for clear error. Caldwell, 853 N.W.2d at 770.
When a direct appeal is not available, a person convicted of a crime may petition
for postconviction relief if he claims a violation of his constitutional rights. Minn. Stat.
§ 590.01, subd. 1 (2018). But Minnesota caselaw recognizes that some postconviction
claims are procedurally barred. For example, all matters raised on direct appeal, and all
claims known but not raised, “will not be considered upon a subsequent petition for
postconviction relief.” State v. Knaffla, 243 N.W.2d 737 , 741 (Minn. 1976). The Knaffla
bar has two exceptions. First, novel issues will be considered if their legal basis “was not
reasonably available at the time of the direct appeal.” Quick v. State, 757 N.W.2d 278, 280
4
(Minn. 2008). Second, an issue may be considered “in the interest of justice—when
fairness so requires and the petitioner did not deliberately and inexcusably fail to raise the
issue on direct appeal.” Id.; see also Minn. Stat. § 590.04, subd. 3 (2018) (providing that a
postconviction court may deny “a second or successive petition for similar relief on behalf
of the same petitioner and may summarily deny a petition when the issues raised in it have
previously been decided” by an appellate court in “the same case”).
Here, the postconviction court determined that Rassmussen’s claims of ineffective
assistance of trial counsel and insufficient evidence are Knaffla-barred. The postconviction
court also concluded that an evidentiary hearing was not warranted. On appeal,
Rassmussen relies mainly on the second exception to the Knaffla bar and “requests that his
case be reviewed in its entirety in the interests of justice.”1

1 After Rassmussen filed his brief and a ddendum in this appeal, the state moved to strike
both Rassmussen’s brief and addendum. The motion was considered at special term, and
this court in an order denied the state’s motion to strike Rassmussen’s brief, but referred to
the panel whether to strike materials in the addendum. The state’s motion argued that five
pages in the addendum are not in the district court record. We rely only on the district court
record to decide an appeal, and parties may not add to that record merely by including
extraneous material with their appeal submissions. See Minn. R. Civ. App. P. 110.01 (“The
documents filed in the trial court, the exhibits, and the transcript of the proceedings, if any,
shall constitute the record on appeal in all cases.”); Minn. R. Civ. App. P. 130.01, subd. 1
(providing an appellant may append only portions of the record to his brief). Here, the
district court record includes Rassmussen’s correspondence with appellate counsel, which
Rassmussen filed along with his po stconviction petition. We therefore consider the
correspondence in this appeal. We disregard the material s from Rassmussen’s addendum
that are not in the record. We deny the state’s motion as unnecessary because our opinion
rests only on the record.

5
A. Ineffective assistance of trial counsel
Rassmussen acknowledges that he raised his ineffective-assistance-of-trial-counsel
claim in his direct appeal, but argues that this court did not fully consider the issue. In
Rassmussen I, this court granted the state’s motion to strike evidence in Rassmussen’s pro
se appendix because it contained documents that were not in the trial record. 2017 WL
3013212, at *4 n.2. Rassmussen contends that he is entitled to a postconviction evidentiary
hearing that includes evidence not admitted at trial, including testimony from trial counsel.
The general rule is that ineffective-assistance-of-trial-counsel claims must be raised
on direct appeal if the record is sufficiently developed to consider the claim, and, when the
same claim is raised in a subsequent postconviction petition, Knaffla bars it. Zornes v.
State, 880 N.W.2d 363, 369 (Minn. 2016). An evidentiary hearing in postconviction court
is warranted when a petitioner alleges facts that, if proven, would “entitle him to relief
under the two-pronged Strickland test.” Id. at 370 (citations omitted). First, the defendant
must demonstrate that “counsel’s representation fell below an objective standard of
reasonableness.” Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) (quoting Strickland v.
Washington, 466 U.S. 668, 687-88; 104 S. Ct. 2052, 2064 (1984)). Second, the defendant
must prove that but-for counsel’s errors, there is a reasonable probability that the “result of
the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694; 104
S. Ct. at 2068). Tactical decisions to call certain witnesses or present specific evidence at
trial are within trial counsel’s discretion and “do not prove that counsel’s performance fell
below an objective standard of reasonableness.” State v. Nissalke, 801 N.W.2d 82, 111
6
(Minn. 2011); see also State v. Jones, 3 92 N.W.2d 224, 236 (Minn. 1986) (holding that
tactical decisions are within trial counsel’s discretion).
In his direct appeal, we decided that Rassmussen’s claim of ineffective assistance
of trial counsel failed under the first Strickland prong. See Rassmussen I, 2017 WL
3013212, at *4. Rassmussen’s pro se supplemental brief argued that his trial attorney had
failed to contact alibi witnesses, stating that this was not “sound trial strategy” and that trial
counsel “should have investigated further.” He also argued that trial counsel did not
introduce certain evidence, such as phone texts. In Rassmussen I, we concluded these
alleged failures “stem from decisions made by his trial counsel about whether to present
evidence and witnesses that could confirm Rassmussen’s alibi or could rebut the state’s
evidence about his financial situation at the time of the fire.” Id. Because the alleged
failures were tactical decisions within trial counsel’s discretion, we rejected Rassmussen’s
claim of ineffective assistance of trial counsel. Id.
In Rassmussen’s appeal from the order denying postconviction relief, Rassmussen
again argues that his trial attorney “failed to challenge . . . testimony,” “failed to call”
certain witnesses, and “failed to cross-examine” witnesses in a certain way. Rassmussen’s
postconviction allegations, which are based entirely on trial counsel’s tactical and strategic
decisions, cannot support a claim of ineffective assistance of trial counsel. See Jones, 392
N.W.2d at 236 (“Such trial tactics should not be reviewed by an appellate court.”).
Moreover, all of Rassmussen’s allegations were based on the trial record and were raised
or known at the time of the direct appeal. Thus, we conclude that the second exception to
7
the Knaffla bar does not apply, and the postconviction court did not abuse its discretion in
summarily denying Rassmussen’s claim of ineffective assistance of trial counsel.
B. Insufficiency of the evidence of conviction
Rassmussen generally argues that the state relied on “negative corpus” evidence2 to
prove his guilt and this is insufficient to sustain for his conviction. 3 He claims that
“negative corpus” is a novel scientific evidence and he “requests a reversal or a new trial
in the interest of justice.” By using the terms “novel” and “interest of justice,” Rassmussen
appears to argue that both Knaffla exceptions apply.
We conclude that neither exception applies for two reasons. First, the “negative
corpus” method for determining a fire’s ignition source is not a novel legal issue and, in
fact, was available and argued in Rass mussen’s direct appeal. Second, the interests of
justice do not require further review of this issue.
During Rassmussen’s jury trial, the prosecutor and defense attorney extensively
argued the “negative corpus” issue and offered evidence through expert witnesses who

2 In Rassmussen I, we noted that “negative corpus” was defined by the National Fire
Protection Association (NFPA) as “[t]he process of determining the ignition source for a
fire, by eliminating all ignition sources found, known, or believed to have been present in
the area of origin.” Rassmussen I, 2017 WL 3013212, at *2 (quoting NFPA, NFPA 921:
Guide for Fire and Explosion Investigations, § 19.6.5, at 203 (2014)).
3 In his brief, Rassmussen also contends that “negative corpus” evidence is unduly
prejudicial because it “had a significant effect on the verdict.” In doing so, he repeats the
argument for insufficient evidence from his direct appeal, thus, the claim is Knaffla-barred.
For example, he states that there “was absolutely no evidence to support” that he set the
fire and that there was an “absence of any supporting evidence.” Even if Rassmussen raises
a new claim, it is still barred. Knaffla, 243 N.W.2d at 741 (barring claims “known but not
raised” in the direct appeal).
8
were fire inspectors. The jury evaluated this evidence before reaching its verdict. In his
direct appeal, Rassmussen challenged the sufficiency of the evidence based on the validity
of “negative corpus” evidence. W e determined that a lack of evidence of an accidental or
natural cause cannot be used as “definitive proof that a fire was intentionally set,” but an
expert can still testify to the lack of such evidence. Id. at *2. We also reasoned that the state
can build its case with circumstantial evidence to “support the inference that the fire was
intentionally set.” Id. This issue drew a special concurring opinion.4
Based on this record, we conclude that Rassmussen has litigated this claim in his
jury trial and on direct appeal. Thus, we conclude that Knaffla bars Rassmussen’s
postconviction claim for insufficiency of the evidence.
II. The district court did not abuse its discretion by denying postconviction relief
for Rassmussen’s claim that appellate counsel was constitutionally ineffective.

Rassmussen’s claim of ineffective assistance of appellate counsel is not Knaffla-
barred in this, his first postconviction appeal, “because [it] could not have been brought at
any earlier time.” Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007). Claims of ineffective
assistance of counsel present mixed questions of law and fact. State v. Nicks, 831 N.W.2d
493, 503 (Minn. 2013). This court reviews a district court’s legal conclusions on claims of
ineffective assistance of counsel de novo. Id.

4 The special concurrence “urge[d] caution” in using “negative corpus” evidence in future
arson cases. Id. at *4 (Kirk, J., concurring specially). The concurring opinion concluded
that any error was harmless because of the “overwhelming nature” of supporting
circumstantial evidence establishing Rassmussen’s guilt. Id. at *5.

9
To prove his claim of ineffective assistance of appellate counsel, Rassmussen must
satisfy the Strickland test and demonstrate that (1) appellate counsel’s representation fell
below an objective standard of reasonableness, and (2) but-for appellate counsel’s error,
the outcome would have been different. Fields, 733 N.W.2d at 468. “There is a strong
presumption that a counsel’s performance falls within the wid e range of reasonable
professional assistance.” Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998) (quotation
omitted). Appellate counsel “does not act unreasonably by not asserting claims that counsel
could have legitimately concluded would not prevail.” Wright v. State, 765 N.W.2d 85, 91
(Minn. 2009). “Counsel appealing a criminal conviction has no duty to raise all possible
issues.” Dent v. State, 441 N.W.2d 497, 500 (Minn. 1989).
According to the correspondence that Rassmussen filed along with his
postconviction petition, he asked his appellate counsel in his direct appeal to raise the issue
of ineffective assistance of trial counsel. Appellate counsel did not believe that
Rassmussen’s trial counsel was constitutionally ineffective, and expressed this opinion on
more than one occasion. For example, in a February 2017 letter, appellate counsel stated
that he did “not believe that the conduct of [Rassmussen’s trial] counsel was
constitutionally ineffective and this was [his] reason for declining to pursue postconviction
relief in [Rassmussen’s] case.” Appellate counsel went on to provide additional advice:
I would encourage you to raise your claims for the ineffective
assistance of counsel in a pro se supplemental brief, so that you
may pursue separate postconviction relief on those issues once
this appeal has concluded. Alternatively, as noted before, you
may discharge our office from representation and obtain a stay
of the appeal on your own.

10
Rassmussen filed a pro se supplemental brief later in February 2017, arguing that his trial
counsel was ineffective. As discussed above, in Rassmussen I, this court rejected
Rassmussen’s claim of ineffective assistance of trial counsel. 2017 WL 3013212, at *4.
Rassmussen now argues that the postconviction court erred in determining that his
ineffective-assistance-of-appellate-counsel claim lacked merit. Rassmussen contends that
his appellate counsel did not advise him that a claim for ineffective assistance of trial
counsel may be barred if it is not “presented in a postconviction motion prior to a direct
appeal.” Rassmussen contends that if he had received this advice, he would have stayed his
direct appeal and proceeded with his ineffective-assistance claim in a postconviction
petition.
Our caselaw recognizes two cat egories of ineffective-assistance- of-trial-counsel
claims. First, when it is clear that a claim can be decided based on the trial court record, it
“must be brought on direct appeal and is procedurally barred when raised in a
postconviction petition.” Torres v. State, 688 N.W.2d 569, 572 (Minn. 2004). Second,
when additional evidence is required to make a claim, then it should generally be brought
in a postconviction petition before appeal to develop the record. Id. at 572, 572 n.1; see
also Robinson v. State, 567 N.W.2d 491, 495 (Minn. 1997) (noting that when testimony
from counsel may be relevant, it is appropriate to raise the claim in postconviction court).
When it is not clear whether additional evidence would be relevant, the best procedure for
raising a claim of ineffective assistance of trial counsel is generally “to file a petition for
postconviction relief before appeal.” Torres, 688 N.W.2d at 572 n.1.
11
In Hale v. State, the Minnesota Supreme Court considered whether appellate
counsel was ineffective for failing to advise the appellant that raising ineffective assistance
of trial counsel on direct appeal could prevent raising the issue in future proceedings. 566
N.W.2d 923, 926-28 (Minn. 1997). The appellant had argued in a pro se brief on direct
appeal that trial counsel was ineffective. See id. at 926. When he lost the direct appeal ,
appellant petitioned for postconviction relief, alleging ineffective assistance of trial and
appellate counsel. Id. The postconviction court denied relief , and the appellant argued to
the supreme court that appellate counsel was ineffective for failing to “advise him that if
he included [his] claims in his pro se brief, [he] could be prevented from trying to assert
the claim in a postconviction setting.” Id. at 927. The supreme court held that appellant’s
ineffective-assistance-of-appellate-counsel claim was without merit because, at the time of
the direct appeal, appellant “knew all the issues surrounding his ineffective assistance of
trial counsel claims.” Id. If appellate counsel had advised appellant not to raise such claims
in the direct appeal, and if the appellant had followed that advice, he “still would likely
have been barred from doing so in subsequent proceedings.” Id.5

5 Rassmussen relies on several United States Supreme Court decisions to support his
argument that appellate counsel did not provide effective assistance. See Evitts v. Lucey, 469 U.S. 387, 389-91, 105 S. Ct. 830, 832-33 (1985); Entsminger v. Iowa, 386 U.S. 748,
750, 87 S. Ct. 1402, 1403 (1967); Anders v. California, 386 U.S. 738, 742-43, 87 S. Ct.
1396, 1399-400 (1967). Evitts, Entsminger, and Anders are all distinguishable. Each case
involved the complete failure of counsel to engage in the adversarial process or a
procedural violation. Unlike the attorneys in the cited cases, Rassmussen’s appellate
counsel was engaged in the adversarial process—he timely filed an appellate brief, moved
for Rassmussen to obtain more time for his supplemental pro se brief, and responded to
Rassmussen’s concerns. Also, while Rassmussen complains that appellate counsel gave
him bad advice, he does not assert that appellate counsel committed a procedural violation.

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Here, the facts are similar and support the same outcome for Rassmussen’s claim of
ineffective assistance of appellate counsel. First, appellate counsel provided Rassmussen
with objectively reasonable advice. Rassmussen’s claim was based on trial strategy, and
he “knew all the issues” on direct appeal based on the trial court record. See id. It is
therefore likely that Rassmussen had to raise his claim on direct appeal, which is what
appellate counsel advised him to do. See Torres, 688 N.W.2d at 572. Second , appellate
counsel encouraged Rassmussen to pursue the issue that counsel believed would be most
likely to succe ed. Appellate counsel did not agree with the option of staying the direct
appeal and filing a postconviction petition regarding ineffective assistance of trial counsel.
Appellate counsel also explained in a letter to Rassmussen that he could discharge his
attorney and move to stay the appeal for postconviction proceedings in district court. The
fact that appellate counsel did not encourage Rassmussen to pursue a legal strategy that
counsel believed was unlikely to succeed does not show that appellate counsel’s advice
was unreasonable. See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (“[A]n effective
appellate lawyer does not dilute meritorious claims with frivolous ones.” (quotation
omitted)).
Because Rassmussen’s claim fails the first Strickland prong, we need not discuss
the second prong. Even so, we observe that, had Rassmussen discharged appellate counsel,
then successfully moved to stay his first appeal, and filed a pro se postconviction petition,
we cannot conclude that the outcome would have been any different. This court rejected
the ineffective-assistance-of-trial-counsel claim in his direct appeal because Rassmussen
13
challenged his counsel’s trial strategy. We fail to see why a postconviction court would
have concluded any differently about that same claim.
In sum, we conclude that Rassmussen’s claims of ineffective assistance of trial
counsel and insufficiency of the evidence are procedurally barred under Knaffla and that
the district court did not abuse its discretion in summarily denying postconviction relief
without an evidentiary hearing. Additionally, we conclude that Rassmussen’s claim of
ineffective assistance of appellate counsel fails on the merits.
Affirmed; motion denied.