Michael David Henderson, 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This opinion will be unpublished and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
A18-1858

Michael David Henderson, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 10, 2019
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-14-8400

Michael Henderson, Rush City, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin C ounty Attorney, Linda K. J enny, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judg e; Larkin, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the postconviction court’s summary denial of his petition for
relief, arguing that his trial and appellate attorneys provided ineffective assistance of

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counsel and that this court applied an incorrect standard of review in his direct appeal. We
affirm.
FACTS
In 2014, appellant Michael David Henderson was convicted of attempted second -
degree murder, first-degree aggravated robbery, and second-degree assault following a jury
trial. Henderson appealed, challenging the sufficiency of th e evidence to support his
conviction of attempted second -degree murder and the district court’s imposition of
consecutive sentences. State v. Henderson, No. A15 -0127, 2016 WL 208133, at *2 -3
(Minn. App. Jan. 19, 2016), review denied (Minn. Mar. 29, 2016). This court affirmed, id.
at *4, and the supreme court denied Henderson’s petition for further review.
In 2018, Henderson petitioned for postconviction relief, arguing that this court did
not apply the correct standard of review to his sufficiency challenge, that the district court
erroneously instructed the jury , and that his trial and appellate attorneys provided
ineffective assistance of counsel . The postconviction court denied relief without an
evidentiary hearing. Henderson appeals.1
D E C I S I O N
Minnesota’s postconviction statute provides that
a person convicted of a crime, who claims that: (1) the
conviction obtained or the sentence or other disposition made
violated the person’ s rights under the Constitution or laws of
the United States or of the state . . . may commence a
proceeding to secure relief by filing a petition in the district
court in the county in which the conviction was had to vacate

1 Henderson does not challenge the postconviction court’s ruling on the jury -instruction
issue.

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and set aside the judgment and to discharge the petitioner or to
resentence the petitioner or grant a new trial or correct the
sentence or make other disposition as may be appropriate.

Minn. Stat. § 590.01, subd. 1 (2016).
A postconviction court may deny a petition for relief without a 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). “An evidentiary hearing upon
a petition for postconviction relief is not required unless the petitioner alleges such facts
which, if proved by a fair preponderance of the evidence, would entitle him or her to the
requested relief.” Roby v. State , 547 N.W.2d 354, 356 (Minn. 1996). Allegations in a
postconviction petition must be “more than argumentative assertions without factual
support.” State v. Caldwell, 803 N.W.2d 373, 388 (Minn. 2011) (quotation omitted).
“[W]here 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 , 243 N.W.2d 737, 741 (Minn. 1976 ); see Minn. Stat. § 590.01,
subd. 1 (“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.”). “A claim is not Knaffla-barred, however, if (1) the defendant presents a novel
legal issue or (2) the interests of justice require t he court to consider the claim.”
Buckingham v. State, 799 N.W.2d 229, 231 (Minn. 2011).
This court reviews a summary denial of postconviction relief for an abuse of
discretion. State v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012). In doing so, this court

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reviews the postconviction court’s legal determinations de novo and its factual findings for
clear error. Bonga v. State, 797 N.W.2d 712, 718 (Minn. 2011).
I.
Henderson contends that the postconviction court erred by denying his claim of
ineffective assistance of trial counsel. In doing so, the postconviction court concluded that
the claim is Knaffla-barred and that it fails on the merits.
As to the Knaffla bar, the postconviction court reasoned that Henderson knew or
should have known of his ineffective -assistance-of-trial-counsel claim at the time of his
initial appeal because he was aware of the attorney conduct on which the claim is based .
The district court further reasoned that neither of the Knaffla exceptions applies .
Henderson argues that the interest-of-justice exception to the Knaffla bar applies.
Whether the postconviction court correctly determined that Henderson’s claim of
ineffective assistance of trial counsel is barred under Knaffla is immaterial because the
court also considered and correctly rejected the claim on the merits. As explained in section
II of this opinion, it was necessary for the district court to do so because Henderson’s claim
of ineffective assistance of appellate counsel was based on his appellate counsel’s failure
to raise a claim of ineffective assistance of trial counsel . We therefore address the merits
of Henderson’s ineffective-assistance-of-trial-counsel claim.
A determination whether a defendant received ineffective assistance of counsel
involves a mixed question of law and fact that is reviewed de novo. Dereje v. State, 837
N.W.2d 714, 721 (Minn. 2013). Appellate courts generally analyze ineffective-assistance-
of-counsel claims under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).

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Id. To prevail under Strickland, a defendant “must show that 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.” 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; see also State v. Rhodes, 657
N.W.2d 823, 842 (Minn. 2003) (applying Strickland to a claim of ineffective assistance of
counsel). Appellate courts apply “a strong presumption that [an attorney’s] performance
falls within the wide range of ‘reasonable professional assistance.’” State v. Jones , 392
N.W.2d 224, 236 (Minn. 1986) . Appellate courts need not analyze both parts of the
Strickland test if either one is determinative. Leake v. State , 767 N.W.2d 5, 10 (Minn.
2009).
Henderson asserts that his trial counsel provided ineffective assistance because she
failed to object to the testimony of certain witnesses regarding his intent to commit murder,
because she “unduly influenced him to abandon his desire to testify,” and because she did
not “accompany[] him during the [presentence investigation] (PSI) process.”
As to Henderson’s assert ion that trial counsel unreasonably failed to object to
certain testimony and therefore failed to present “the only reasonable argument that [could
have] prevailed,” a reviewing court generally “will not review atta cks on counsel’s trial
strategy,” Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004). “[D]ecisions about
objections at trial are matters of trial strategy . . . .” State v. Mosley, 895 N.W.2d 585, 592
(Minn. 2017) (quotation omitted) . Henderson does not persuade us that trial counsel’s
decisions regarding what arguments to make at trial and whether to object to certain
testimony are anything other than matters of unreviewable trial strategy.

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As to Henderson’s assertion that trial counsel “unduly influenced” him to not testify,
A defendant’s right to testify is a constitutional right that can
only be waived by the defendant. Such waiver must be made
voluntarily and knowingly. The defendant’ s counsel canno t
waive the defendant’s right to testify, and a court is required to
grant a new trial if it determines that counsel denied the
defendant the right to testify. If, however, a co urt determines
that a defendant’s decision not to testify was adversely affected
by the counsel’ s failure to adequately inform the defendant
about the relevant facts, a new trial will be granted only if the
defendant was prejudiced by the error.

State v. Berkovitz, 705 N.W.2d 399, 404-05 (Minn. 2005) (citations omitted).
When a defendant knows and understands his right to testify, a
claim that his attorneys’ actions denied him the right to testify
must fail absent some indication in the record that his lawyers
coerced him into not testifying by applying undue pressure,
using illegitimate means, or otherwise depriving him of his free
will. The defendant has the burden of proving that he or she
did not voluntarily and knowin gly waive the right to testify.
Absent a finding to the contrary, [appellate courts] presume
that the defendant waived the righ t to testify for the reasons
stated on the record. Solemn declarations in open court carry
a strong presumption of verity and subsequent presentation of
conclusory allegations unsupported by specifics is subject to
summary dismissal.

Andersen v. State, 830 N.W.2d 1, 11 (Minn. 2013) (quotations and citations omitted).
Here, t he district court advised Henderson on the record regarding his right to
testify. The next day, the district court asked Henderson whether he had considered
testifying. Henderson replied that he had and that he wanted to testify. The prosecutor and
trial counsel then reviewed jury instructions off the record. When the proceedings resumed
on the record, the district court stated that , while the attorneys were reviewing the jury
instructions, “Henderson indicated that he now does not wish to testify.” The district court

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stated, “The choice is yours, obviously, and you have an attorney who can advise you as to
what she thinks might be appropriate, but ultimately it’s your choice; do y ou understand
that, sir?” Henderson responded, “Yes, Your Honor, I understand.” The district court
asked Henderson whether he wanted to testify, and Henderson stated, “I do not.”
Henderson argues that “Trial Counsel unduly influenced [him] not to testify through
advising [him] in a deceptive tone” and that “[s]uch advice is unreasonable ” when a
defendant admits committing a robbery but denies intent or motive to cause death.
Henderson’s vague allegation that trial counsel advised him “in a deceptive tone” does not
demonstrate that his trial attorney coerced him into not testifying by applying undue
pressure, using illegitimate means, or otherwise depriving him of his free will. Because
the record indicates that Henderson knew of and understood his right to testify and he has
not presented evidence of coercion, he is not entitled to a new trial on the theory that trial
counsel denied him his right to testify. See id.
Henderson’s argument that his attorney misadvised him regarding his decision t o
testify is also unavailing. We presume that Henderson’s trial counsel provided advice that
fell “within the wide range of ‘reasonable professional assistance.’” Jones, 392 N.W.2d at
236. There are reasons why a reasonably competent attorney might advise a defendant not
to testify under the circumstances described by Henderson. Thus, Henderson’s conclusory
assertions regarding the reasonableness of his attorney’s advice fail to rebut the
presumption of reasonable professional assistance. See Davis v. State , 784 N.W.2d 387,
391 (Minn. 2010) (affirming postconviction court’s rejection of ineffective -assistance-of-
counsel claims that were based solely on “conclusory, argumentative assertions without

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factual support”). Moreover, Henderson does not explain how there is a reasonable
probability that the result of the proceeding would have been different but for the alleged
unprofessional error.
As to Henderson’s assertion that his trial counsel unreasonably failed to accompany
him to his PSI intervi ew, this court has previously held that a PSI interview does not
constitute a critical stage of the proceedings at which a defendant has a Sixth Amendment
right to counsel. State v. Barber , 494 N.W.2d 497, 501 -02 (Minn. App. 1993), review
denied (Minn. Feb. 25, 1993). Even if it were objectively unreasonable for trial counsel
not to accompany Henderson to his PSI interview, he does not persuade us that trial
counsel’s presence would have changed the result of the proceeding.
In sum, Henderson’s claim of ineffective assistance of trial counsel is without merit,
and the postconviction court did not err by summarily denying relief.
II.
Henderson contends that the postconviction court erred by denying his claim of
ineffective assistance of appell ate counsel. He argues that his appellate counsel was
ineffective for failing to raise a claim of ineffective assistance of trial counsel.
“Appellate counsel is not required to raise all possible claims on direct appeal, and
counsel need not raise a cl aim if she could have legitimately concluded that it would not
prevail.” Arredondo v. State, 754 N.W.2d 566, 571 (Minn. 2008) (quotation omitted). A
claim of ineffective assistance of appellate counsel is “properly raised in a first
postconviction petition, because the petitioner could not have known of such a claim at the
time of direct appeal.” Zornes v. State, 880 N.W.2d 363, 370-71 (Minn. 2016). “When an

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ineffective assistance of appellate counsel c laim is based on appellate counsel’s failure to
raise an ineffective assistance of trial counsel claim, the [petitioner] must first show that
trial counsel was ineffective .” Fields v. State , 733 N.W.2d 465, 468 (Minn. 2007). As
explained in section I, He nderson fails to show that his trial counsel provided ineffective
assistance. His ineffective-assistance-of-appellate-counsel claim therefore fails as a matter
of law, and the postconviction court did not err by rejecting it.
III.
Henderson contends that this court erred in his direct appeal by failing to apply the
heightened circumstantial-evidence standard of review when addressing his argument that
the evidence was insufficient to sustain his conviction of attempted second-degree murder.
Henderson generally argues that he “is not guilty of 2nd degree attempted murder.”
To the extent that Hend erson argues that the evidence at trial was insufficient to
sustain his conviction, that claim was decided in his direct appeal and it is therefore
Knaffla-barred. Moreover, as the postconviction court correctly observed, that court was
“not the appropriate venue to be addressing the Court of Appeals’ standard of review.” See
Minn. R. Civ. App. 117, subd. 1 (“Any party seeking review of a decision of the Court of
Appeals shall separately petition the Supreme Court.”).
Because the petition , files, and records of the proceeding conclusively show that
Henderson is not entitled to relief, the postconviction court did not abuse its discretion by
denying Henderson’s petition for relief without a hearing.
Affirmed.