Elton James Curtis, 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This opinion will be unpublished and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
A20-0400

Elton James Curtis, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 9, 2020
Affirmed
Gaïtas, Judge

Cass County District Court
File No. 11-CR-14-2002

Elton James Curtis, Moose Lake, Minnesota (pro se appellant)

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

Benjamin T. Lindstrom, Cass County Attorney, Walker, Minnesota (for respondent)

Considered and decided by Florey, Pr esiding Judge; Hooten , Judge; and Gaïtas,
Judge.
U N P U B L I S H E D O P I N I O N
GAÏTAS, Judge
On appeal from the denial of his petition for postconvic tion relief, appellant Elton
Curtis argues that the postconviction court abus ed its discretion in denying (1) his claims

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of ineffective assistance of trial counsel; (2) his claims of ineffective assistance of appellate
counsel; and (3) a postconviction evidentiary hearing. We affirm.
FACTS
Following a 2017 court trial, Curtis was convicted of two coun ts of first-degree
criminal sexual conduct, Minn. Stat. § 609.342, subds. 1(a ), 1(g) (2014), and two counts
of second-degree criminal sexual conduct, Minn. Stat. § 609. 343, subd. 1(a), (g) (2014).
The district court sentenced him to 234 months in prison.
In 2016, Curtis filed a direct appeal challenging his convictions. He was represented
in his appeal by an appellate public defender. The sole ground for re lief asserted in the
direct appeal was the trial judge’s failure to recuse herself after conducting an in camera
review of confidential documents related to the victim. State v. Curtis , No. A16-1858,
2017 WL 5559898 at *2 (Minn. App. Nov. 20, 2017), review denied (Minn. Jan. 24, 2018).
We affirmed Curtis’s convicti ons, concluding that Curtis “f ailed to identify any error by
the district court’s presiding over his bench trial.” Id. at *3.
On January 8, 2020, Curtis timely filed a pro se petition for postconviction relief in
the district court under Minnesota Statutes se ction 590.01 (2018). Curtis claimed in his
petition that his trial attorney had provided ineffective assistance of counsel. Additionally,
he alleged that his appellate counsel had rendered ineffective assistance by failing to
challenge his trial counsel’s inadequate performance on direct appeal. The postconviction
court denied Curtis’s petition without an evidentia ry hearing. Curtis now appeals the
postconviction court’s order denying relief.

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D E C I S I O N
Appellate courts “review the denial of a postconviction petition for an abuse of
discretion.” Dolo v. State , 942 N.W.2d 357, 362 (Minn. 2020). A postconviction court
abuses its discretion “when it has 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.” Fox v. State, 938 N.W.2d 252, 256 (Minn. 2020) (quotation omitted).
I. The postconviction court did not abuse its discretion when it denied Curtis’s
claims of ineffective assistance of trial counsel.

Curtis first argues that the postconviction court erred in rejecting his claims of
ineffective assistance of trial counsel. The postconviction cour t held that Curtis’s claims
regarding his trial counsel’s performance were known to him at the time of his direct
appeal.
A district court does not abuse its discretion when it denies claims for postconviction
relief that are procedurally barred by the Knaffla rule. Zumberge v. State, 937 N.W.2d 406,
411 (Minn. 2019). Under the Knaffla rule, a postconviction court cannot consider claims
that were known or should have been known at the time of a petitioner’s direct appeal, but
were not raised in that appeal. Id.; State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976).
This rule applies unless there are exceptional circumstances. Zumberge, 937 N.W.2d at
411-12. Exceptional circumst ances exist where (1) a post conviction petition presents “a
novel legal issue . . . that was unavailable at the time of the direct appeal” or (2) “the
interests of justice require review.” Id.

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Curtis argues that his trial attorney was ineffective in several ways. First, he alleges
that he received ineffective assistance of tria l counsel because his trial attorney failed to
subpoena and investigate crucial witnesses. But Curtis conceded in his postconviction
petition that he discussed trial strategy with his attorney, including the ultimate decision to
challenge the victim’s credib ility in lieu of calling witn esses. Accordingly, the
postconviction court correctly concluded that Curtis was aware of this issue at the time of
his direct appeal.
Second, Curtis argues that his trial c ounsel was ineffective for employing an
investigator who had a conflic t of interest. Curtis ack nowledged in his postconviction
petition, however, that he informed trial counse l of this concern during the course of trial
counsel’s representation. Thus, the postconviction court did not clearly err when it found
that Curtis knew of this issue when he filed his direct appeal.
Third, Curtis claims that his trial counsel failed to investigate and present mitigating
evidence on his behalf. Curtis was personally present during the entirety of the trial, and
was cognizant of the evidence that was offered. The postconviction court correctly found,
therefore, that Curtis was aware of this issue when he filed his direct appeal.
Fourth, Curtis argues his trial counsel wa s ineffective in failing to sequester two
witnesses from the courtroom before their testimony. The postconviction court determined
that Curtis used the term “sequester” in hi s postconviction petition to refer to particular
evidence that he believes should have been excluded. This court concurs with that
interpretation. Specifically, Curtis challenge s his attorney’s failu re to object to the
testimony of Dr. Peter Niefert, who Curtis alleges violated his privacy and constitutional

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rights by sharing his medical records with an investigator for the Cass County Sheriff’s
Office. Curtis also challenges his trial counsel ’s failure to object to the investigator’s
testimony, which included stat ements allegedly obtained in violation of Curtis’s
constitutional right to counsel. Curtis’s postconviction petition acknowledged, however,
that he was aware of the facts underlying both claims at trial. Thus, the postconviction
court did not clearly err in finding that these issues were known to Curtis at the time of his
direct appeal.
Finally, Curtis alleges that his trial counsel was ineffect ive in failing to request a
pretrial hearing to challenge the victim’s competency. Before trial, however, Curtis moved
to obtain documents a nd records relating to the victim’s mental health. Further, Curtis
conceded in his postconviction petition that he discussed with trial counsel the strategic
decision to challenge the victim ’s credibility at trial. A ccordingly, the postconviction
court’s conclusion that Curtis was aware of the competency issue at the time of his direct
appeal is not clearly erroneous.
Because the grounds for Curtis’s ineffective-assistance-of-trial-counsel claims were
known to him at the time of his direct appeal, these claims are Knaffla-barred unless an
exception to the Knaffla rule applies. Curtis has no t invoked an exception in his
postconviction petition or his brief to this court. Moreover, the circumstances of Curtis’s
case do not trigger either exception to the Knaffla rule. Curtis’s claims do not present novel
issues of law, and because Curtis inexcusabl y failed to raise these claims on appeal, the
interests of justice do not require further review. See Zumberge, 937 N.W.2d at 411-12.

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Because the substance of Curtis’s ineff ective-assistance-of-trial-counsel claims
were known but not raised on direct appeal , and Curtis has not identified exceptional
circumstances requiring an exemption from the Knaffla rule, these claims are procedurally
barred. Accordingly, the postconviction cour t did not abuse its discretion in summarily
denying Curtis’s petition.
II. The postconviction court did not abuse its discretion when it denied Curtis’s
claims of ineffective assistance of appellate counsel.

Curtis also challenges the postconviction court’s denial of his claims related to his
appellate representation. He alleges that his appellate attorney provided ineffective
assistance of counsel in failing to pursue his claims of ineffective assistance of trial counsel.
Unlike ineffective-assistance-o f-trial-counsel claims, ineffec tive-assistance-of-appellate-
counsel claims “are not barred by the Knaffla rule in a first postconviction [petition]
because these claims could not have been brought on direct appeal.” Onyelobi v. State ,
932 N.W.2d 272, 280 (Minn. 2019).
To prevail in his claim of ineffective assistance of appe llate counsel, Curtis must
satisfy the Strickland test by showing that (1) counsel ’s representation “‘fell below an
objective standard of reasonableness’” and (2) “‘there is a reasonable probability that, but
for counsel’s unprofessional errors, the resu lt of the proceeding would have been
different.’” Griffin v. State , 941 N.W.2d 404, 408 (Minn. 2020) (quoting Strickland v.
Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). When a claim
of ineffective assistance of appellate counsel is premised on the appellate attorney’s failure
to raise a claim of ineffective assistance of trial counsel, the petitioner must also show that

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trial counsel’s performance was ineffective under the Strickland test. Carridine v. State,
867 N.W.2d 488, 494-95 (Minn. 2015). “Application of the Strickland test involves mixed
questions of law and fact that we review de novo.” State v. Mouelle, 922 N.W.2d 706, 715
(Minn. 2019).
Here, the postconviction court first concl uded that all of Curtis’s ineffective-
assistance-of-appellate-counsel claims were “either insufficient to meet the Strickland test
for ineffective assistance of counsel or are in sufficient to support a grant of relief even
assuming [Curtis]’s factual allegations to be true.” Although the postconviction court did
not perform a detailed analysis of each of Curtis’s specific arguments, our review of the
record confirms that the post conviction court correctly reject ed Curtis’s claim that his
appellate counsel was ineffective.
As a preliminary matter, Curtis cannot establish that his trial counsel was
ineffective. Curtis first argues that his a ppellate counsel should have challenged his trial
counsel’s failure to investigate and call cruc ial witnesses. But decisions about which
witnesses to call are a matter of trial strategy that “will generally not be reviewed later for
competence.” Carridine, 867 N.W.2d at 494. Further, the witnesses Curtis identifies
would have provided testimony of minimal relevance to the case, offering little more than
positive character evidence. Thus, it was not un reasonable for his trial counsel to decide
against calling these witnesses. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65.
Curtis next claims that his trial counse l was ineffective because counsel used an
investigator who had a conflict of interest. But the conflict that Curtis alleges is tenuous,
at best. Moreover, he fails to credibly explain how the de fense investigator’s alleged

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conflict impacted his trial. Thus, he fails to show that the attorney’s use of the investigator
was unreasonable. Id.
Curtis also argues that his trial counsel failed to investigate and present mitigating
evidence. But a trial attorney’s decisions ab out what evidence to present are matters of
trial strategy, which generally are not subject to review. Carridine, 867 N.W.2d at 494.
Moreover, trial counsel clearly made strate gic choices about how to present mitigating
circumstances at trial. For example, Curtis faults his trial counsel for not presenting
inconsistent statements allegedly made by the victim’s mother. Trial counsel conducted a
thorough cross-examination of the witness at trial, howeve r, repeatedly challenging her
credibility. Additionally, Curtis points to evid ence concerning an alternative perpetrator
theory. But trial counsel developed this theo ry at the trial. Tr ial counsel’s specific
decisions about how to address the mitigati ng evidence were purely a matter of trial
strategy, and therefore not unreasonable. See id.
Curtis complains about his trial attorney’s failure to challenge certain evidence that
the state presented at trial. 1 Specifically, Curtis argues that Dr. Niefert impermissibly
testified about Curtis’s medical records. But the only medical record admitted into
evidence was a letter that Dr. Niefert provided to law enforcement to fulfill his mandatory
reporting obligations. Trial counsel successfully argued against the admission of Curtis’s

1 As discussed, Curtis characterizes the issu e as the failure of trial counsel to request
“sequestration” of certain witnesses, although Curtis appears to be challenging his trial
counsel’s failure to object to specific portions of witness testimony. It is worth noting that
Curtis’s trial counsel did move for sequestra tion of witnesses, the trial court issued a
sequestration order, and the record does not reveal any violations of the sequestration order.

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other medical records before trial and cross-examined Dr. Niefert about the circumstances
surrounding his letter to law enfo rcement. Additionally, Curtis alleges that the sheriff’s
investigator testified about a statement taken in violation of Curtis’s right to counsel. But
Curtis’s postconviction petitio n acknowledges that the inve stigator did not conduct a
custodial interrogation. Further, trial counse l’s cross-examination of the investigator
indicates that the statements were not made during a custodial interrogation because Curtis
volunteered the information to the investigato r. The record does not support Curtis’s
allegations of evidentiary error, therefore.
Finally, Curtis faults his trial counsel for failing to challenge the victim’s
competency in a pretrial proceeding. But as previously discussed, trial counsel moved for
disclosure of the victim’s mental health records. And trial counsel then made the strategic
decision to challenge the victim ’s credibility through cross-exam ination. As noted, such
matters of trial strategy generally are not later reviewed for competence. Carridine, 867
N.W.2d at 494. Trial counsel’s strategic de cision to challenge the victim’s credibility at
trial was therefore not unreasonable. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65.
Curtis is also unable to satisfy the second prong of the Strickland test, which requires
a defendant to show that ther e is a reasonable probability th e outcome of the case would
have been different in the absence of trial counsel’s errors. See id. at 687, 694, 104 S. Ct.
at 2064, 2068. Indeed, Curtis makes no specific assertions as to how the outcome of trial
might have been different.
Having concluded that all of Curtis’s ineffective-assistance-of-trial-counsel claims
failed as a matter of law, the postconviction court next found that appellate counsel’s failure

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to raise these claims did not deprive Curtis of the effective assistance of appellate counsel.
We again agree with the postconviction court. “Appellate counsel does not have a duty to
raise all possible issues” on appeal “and may choose to present only the most meritorious
claims.” Zumberge, 937 N.W.2d at 413 (quotation omitte d). Here, Curtis’s appellate
counsel had no obligation to ra ise any of Curtis’s meritless claims regarding his trial
counsel’s performance. Thus, Curtis’s claim of ineffective assistance of appellate counsel
fails, and the postconviction court did not abuse its discretion in denying the claim.
III. The postconviction court did not abuse it s discretion when it rejected Curtis’s
postconviction claims without holding an evidentiary hearing.

Finally, Curtis contends that it was an abuse of discretion for the postconviction
court to deny his petition withou t holding an evidentiary hear ing. We fi nd no abuse of
discretion.
The postconviction court may deny an evidentiary hearing where a petition and the
files and records of the proceeding “conclusively show that the petitioner is entitled to no
relief.” Griffin v. State, 941 N.W.2d 404, 409 (Minn. 2020). Accordingly, the district court
does not abuse its discretion when it summarily denies a petition that is procedurally barred
by the Knaffla rule. Zumberge, 937 N.W.2d at 411-12. Furt her, to obtain an evidentiary
hearing on an ineffective-assistance-of-counsel claim based on appellate counsel’s failure
to challenge trial counsel’s performance, “the petitioner must allege facts that, if proven by
a fair preponderance of the evidence,” woul d establish ineffective assistance of counsel
under Strickland. Carridine, 867 N.W.2d at 493-94 (quotation omitted).

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Here, Curtis’s claims regarding his trial counsel are procedurally barred under the
Knaffla rule. See Zumberge, 937 N.W.2d at 411-12. Curtis also failed to allege facts that,
if proven by a fair preponderance of the ev idence, would demonstrate his trial counsel’s
representation was ineffective under the two-pronged Strickland standard. See Strickland,
466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068. Accordingly, it was not an abuse of
discretion for the postconviction court to deny Curtis’s claims relating to his trial counsel
and his appellate counsel without holding an evidentiary hearing. Zumberge, 937 N.W.2d
at 411; Carridine, 867 N.W.2d at 493-94.
Affirmed.