Earl Lionell Ward, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0519

Earl Lionell Ward, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed January 11, 2021
Affirmed
Klaphake, Judge*

Ramsey County District Court
File Nos. 62-CR-14-4920, 62-CR-14-3922

Earl Lionell Ward, Faribault, Minnesota (pro se appellant)

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

John Choi, Ramsey County Attorney, Jeffrey A. Wald, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

Considered and decided by Smith, Tracy M ., Presiding Judge; Bratvold, Judge; and
Klaphake, Judge.

*Retired judge of the Minnesot a Court of Appeals, servin g by appointment pursuant to
Minn. Const. art. VI, § 10.

2
NONPRECEDENTIAL OPINION

KLAPHAKE, Judge
Pro se appellant Earl Lionell Ward plea ded guilty to two counts of criminal
vehicular operation resulting in great bodily injury. This court stayed his direct appeal so
appellant could seek postconvic tion relief. The postconvictio n court denied appellant’s
first petition for relief. On direct appeal, th is court upheld appellant’s conviction and the
denial of postconviction relief. State v. Ward, No. A15-0684, 2016 WL 7439082, at *5-7
(Minn. App. Dec. 27, 2016), review denied (Minn. Mar. 28, 2017). A federal court then
denied appellant’s habeas corpus petition because it was procedurally barred. Ward v. Roy,
No. 17-CV-4542 (WMW/LIB), 2 018 WL 3848438, at *1 (D . Minn. Aug. 13, 2018)
(adopting a magistrate judge’s report and recommendation).
Appellant now challenges his second po stconviction relief denial and seeks to
vacate his 2014 convictions a nd sentences on the ground that his appellate counsel was
constitutionally ineffective for failing to preserve a federal claim of ineffective assistance
of trial counsel. Alternatively, appellant as ks this court to reverse and remand for a new
evidentiary hearing on the ground that the dist rict court erred by failing to rule on his pro
se postconviction relief petition. Because appellant’s claims of ineffective assistance of
trial counsel were either known at the time of his direct appeal or decided by this court,
and because appellant’s claim of federal ineffective assistance of trial counsel lacks merit,
we affirm.

3
DECISION
This court will not overturn a postconvic tion court’s decision absent an abuse of
discretion. Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). Once a direct appeal has
been filed, “all matters raised therein, and all claims known but not raised, will not be
considered upon a subsequent pe tition for postconviction relief.” State v. Knaffla , 243
N.W.2d 737, 741 (Minn. 1976).
Appellant argues that his appellate c ounsel was constitutionally ineffective for
failing to preserve a federal claim of ineffective assistance of trial counsel. To prevail on
a claim for ineffective assistance of counsel, an appellant must show that (1) his 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 result of the
proceeding would have been different. Petersen v. State, 937 N.W.2d 136, 139-40 (Minn.
2019) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064,
2068 (1984)); Zornes v. State, 880 N.W.2d 363, 370 (Minn. 2016). Appellate counsel does
not act unreasonably if he does not raise issues he could have legitimately concluded would
not prevail. Zornes, 880 N.W.2d at 371; Jackson v. State, 817 N.W.2d 717, 724 (Minn.
2012) (“[O]ur court has never held, and we find no authority holding, that appellate counsel
is under a duty to raise federa l constitutional claims in a st ate-court appeal simply to
preserve those issues for federal habeas review.”). When a claim of ineffective assistance
of counsel is based on appellate counsel’s failure to raise a claim of ineffective assistance
of trial counsel, the petitioner must first sh ow that trial counsel was ineffective. Zornes,
880 N.W.2d at 371.

4
Appellant’s claim of ineffective assistance of appellate counsel is predicated on his
attorney’s failure to properly preserve a fede ral claim of ineffective assistance of trial
counsel. Under Knaffla, appellant cannot establish tria l counsel’s conduct meets the
Strickland test because this court has already re viewed and rejected those claims. Ward,
2016 WL 7439082, at *5, *7; see also Knaffla, 243 N.W.2d at 741.
Although appellant’s claim of ineffective assistance of appellate counsel is not
Knaffla-barred because appellant c ould not have raised it in his first postconviction or
direct appeal proceedings, it lacks merit. See Schneider v. State , 725 N.W.2d 516, 521
(Minn. 2007). T he supreme court has rejected the argument that appellate counsel is
ineffective by failing to pres erve a federal claim. Jackson, 817 N.W.2d at 724.
Additionally, appellant’s novel claim that his trial counsel provided unreasonable advice
about the likelihood of receivi ng an aggravated sentence does not establish that appellate
counsel acted unreasonably because counsel could have legitimately concluded the claim
would not prevail. See Zornes, 880 N.W.2d at 371. Appellant failed to argue or establish
that there is a reasonable probability that the outcome of the postconviction, direct appeal,
or habeas corpus proceedings would have been different. See Petersen, 937 N.W.2d at
139-40. Because appellant cannot show his trial counsel was constitutionally ineffective
or that appellate counsel’s conduct met the Strickland test, we conclude the district court
did not err.
Appellant also argues the district court abused its discretion by failing to rule on his
pro se postconviction relief petition. Even if the district court failed to explicitly address
each of appellant’s arguments, this court must assume it implicitly rejected the argument

5
rather than assuming that the district court erred by failing to consider them. Palladium
Holdings, LLC v. Zuni Mortg. Loan Tr. 2006-OA1, 775 N.W.2d 168, 177-78 (Minn. App.
2009) (citing Loth v. Loth , 35 N.W.2d 542, 546 (Minn. 1 949) (stating that an appellate
court cannot assume a district court erred)), review denied (Minn. Jan. 27 , 2010). But
because the district court referenced appellant’s November 26, 2018 pro se postconviction
filings and stated, “Petitioner has failed to establish either prong of the Strickland test for
any of the grounds he raises, and therefore, fails to meet his burden that he received
constitutionally ineffective assistance from his appellate counsel,” we conclude the district
court considered the pro se petitioner’s claims.
Therefore, the district court did not abuse its discretion by denying appellant
postconviction relief.
Affirmed.