Joseph Christen Thoresen,

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STATE OF MINNESOTA

IN SUPREME COURT

A20-1221

Itasca County District Court Thissen, J.

Joseph Christen Thoresen,

Appellant,

vs. Filed: October 13, 2021
Office of Appellate Courts
State of Minnesota,

Respondent.

________________________

Joseph Christen Thoresen, Stillwater, Minnesota, pro se.

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Matti R. Adam, Itasca County Attorney, Rachel A. Eve nson, Assistant Itasca County
Attorney, Grand Rapids, Minnesota, for respondent.

________________________
S Y L L A B U S
1. The district court did not abuse its discretion by denying appellant’s claims
asserting violations of Brady v. Maryland, 373 U.S. 83 (1963).
2. Appellant’s claim that the grand jury indictment was insufficient and overly
confusing is barred under the Knaffla rule.
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3. Appellant’s claims that the district court committed plain error by failing to
stop the prosecutor from allegedly misstating the evidence and by telling the jury what to
believe during closing argument are barred under the Knaffla rule.
4. Appellant’s claim of judicial estoppel is barred under the Knaffla rule.
5. Appellant’s claim that the prosecutor committed prosecutorial misconduct is
barred under the Knaffla rule.
6. Appellant did not meet his burden to show ineffective assistance of trial or
appellate counsel.
7. Appellant’s claim that the evidence presented at the jury trial was insufficient
to support his conviction is barred under the Knaffla rule and he is not entitled to additional
testing of blood samples under Minn. Stat. § 590.01, subd.1a(a) (2020).
8. Appellant’s claims that the search warrants were deficient and that he was
interrogated in violation of his rights as set forth in Miranda v. Arizona , 384 U.S. 436
(1966), are barred under the Knaffla rule.
Affirmed.
Considered and decided by the court without oral argument.
O P I N I O N
THISSEN, Justice.
In 2017, appellant Joseph Thoresen was convicted of first -degree premeditated
murder. After we affirmed his first-degree murder conviction on appeal, Thoresen sought
postconviction relief on several grounds. The district court denied his motion and requests
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without a hearing. Because we conclude that the district court did not abuse its discretion
by summarily denying Thoresen’s claims for postconviction relief, we affirm.
FACTS
The relevant facts are recounted in State v. Thoresen, 921 N.W.2d 547 (Minn. 2019).
On June 21, 2016, David Haiman was killed on a trail in Itasca County. Following a police
investigation, a grand jury indicted Thoresen on four offenses, including first -degree
premeditated murder, first -degree murder while committing kidnapping, second -degree
intentional murder, and second -degree murder while committing assault. Each count
encompassed one theory of principal liability as well as one theory of accomplice liability.
A jury found Thoresen guilty of first-degree premeditated murder as a principal and as an
aider and abettor. The district court entered a conviction on principal liability and
sentenced Thoresen to life in prison without the possibility of release.
Thoresen appealed his conviction to our court. He first argued that the testimony of
his accomplice, Kayleene Greniger, was not sufficiently corroborated to support his first-
degree premeditated murder conviction. Id. at 551. Thoresen also argued that the district
court abused its discretion by denying his request to instruct the jury about the credibility
of drug users or witnesses who could later be charged as accessories after the fact. Id. at
553.
We rejected both argumen ts. On the first issue, we determined that Greniger’s
testimony was corroborated by four witnesses. Id. at 552. We further determined that there
was independent evidence of Thoresen’s guilt beyond Greniger’s testimony and, therefore,
her testimony was sufficiently corroborated to sustain Thoresen’s conviction. Id. On the
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second issue, we held that the district court did not abuse its discretion by denying
Thoresen’s proposed jury instructions because the jury heard that the witnesses used mind-
altering substances that affected their memory and perception. Id. at 554. Additionally,
we noted that the district court had instructed the jury to consider each witness’s ability to
remember and relate to facts as well as whether he or she had an interest in the outcome of
the case. Id.
In November 2019 , Thoresen moved for additional blood and DNA testing under
Minn. Stat. § 590.01, subd. 1a (2020). Thoresen claimed that investigators did not test 94
percent of the evidence collected from his apartment. The district court denied Thoresen’s
motion because the test was available at the time of his jury trial and he did not raise the
issue prior to jury trial or during his direct appeal. See Minn. Stat. § 590.01, subd. 1a(a)(2).
The district court further stated that additional testing that proved a lack of Haiman’s blood
in the apartment would not establish his actual innocence , noting that Haiman was not
killed in Thoresen’s apartment.
Thoresen then timely moved for postconviction relief , seeking to vacate his
conviction. He asserted that the State withheld exculpatory evidence in violation of Brady
v. Maryland, 373 U.S. 83 (1963) ; the grand jury indictment was insufficient and overly
confusing; the district court committed plain error by failing to stop the prosecutor from
allegedly misstating the evidence and telling the jury what to believe during closing
argument; the State’s theory of the case was barred by the doctrine of judicial estoppel; the
prosecutor engaged in misconduct; his trial and direct appeal lawyers provided ineffective
assistance of counsel; the evidence was insufficient to convict him; the search warrants
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issued in his case were deficient; and he was interrog ated in violation of his rights as set
forth in Miranda v. Arizona , 384 U.S. 436 (1966) . The district court denied Thoresen’s
petition for postconviction relief without an evidentiary hearing. Thoresen appealed.
ANALYSIS
We review a postconviction court’s decision to summarily deny a petition for
postconviction relief for an abuse of discretion. See Campbell v. State, 916 N.W.2d 502,
506 (Minn. 2018). An abuse of discretion occurs when the postconviction court “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.” Reed v. State, 793 N.W.2d 725, 729
(Minn. 2010). In determining whether the district court abused its discretion, we review
the district court’s factual determinations for clear error and its legal conclusions de novo.
Eason v. State, 950 N.W.2d 258, 264 (Minn. 2020).
A defendant who is convicted of a crime is permitted to seek postconviction relief
to vacate and set aside the judgment, grant a new trial, or make other dispositions as may
be appropriate when claiming that (1) the conviction was obtained in violation of the
person’s rights under the Minnesota Constitution or the United States Constitution , or
(2) when “scientific evidence not available at trial . . . establishes the petitioner’s actual
innocence.” Minn. Stat. § 590.01, subd. 1 (2020).
The postconviction court must hold an evidentiary hearing to resolve factual
disputes that are material to determinin g the legal issues raised in the postconviction
petition when those factual disputes were not resolved in the proceedings resulting in a
conviction. Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995). “The showing required
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for an evidentiary hearing is l ower than that required for a new trial.” Bobo v. State, 820
N.W.2d 511, 516 (Minn. 2012). Any doubts as to whether to conduct an evidentiary
hearing should be resolved in favor of granting the hearing. King v. State , 649 N.W.2d
149, 156 (Minn. 2002).
But the factual dispute must be material. A postconviction court may dismiss a
petition for postconviction relief without holding an evidentiary hearing “ unless [the]
petitioner alleges facts which, if prove n, would entitle [the] petitioner to the requeste d
relief.” Hanley v. State , 534 N.W.2d 277, 278 (Minn. 1995). A petitioner’s allegations
“must be more than argumentative assertions without factual support.” Opsahl v. State ,
677 N.W. 414, 423 (Minn. 2004) (citation omitted) (internal quotation marks omitted).
A postconviction court also may “summarily deny a claim that is procedurally
barred by the Knaffla rule.” Pearson v. State, 891 N.W.2d 590, 597 (Minn. 2017). “The
Knaffla rule provides that when a petition for postconviction relief follows a direct appeal
of a conviction, all claims raised in the direct appeal and all claims of which the defendant
knew or should have known at the time of the direct appeal are procedurally barred.”
Hooper v. State (Hooper I), 838 N.W.2d 775, 787 (Minn. 2013) (citation omitted) (internal
quotation marks omitted).
When a claim was not previously raised, there are exceptions to the Knaffla bar. A
postconviction court may consider such a claim when the claim is so novel that it can be
said that its legal basis was not reasonably available to counsel at the time of the direct
appeal. See King, 649 N.W.2d at 156–57. A postconviction court also may consider such
a claim otherwise barred by Knaffla “in the interests of justice.” Id. The interests-of-justice
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exception applies only when the claim has “substantive merit” and the petitioner “did not
deliberately and inexcusably fail to raise the [claim]” in his previous appeals. Hooper v.
State (Hooper II), 888 N.W.2d 138, 143 (Minn. 2016) (citation omitted) (internal quotation
marks omitted).
I.

Thoresen asserts that the State withheld favorable evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). According to Thoresen, the State withheld the interviews
of Robert Dewey, John Peck, and Donna Stram until after his direct appeal. Thoresen also
asserts that the State withheld 770 Facebook posts . Thoresen argues that the interviews
and Facebook posts are both favorable and material to his case.
The State violates the constitutional guarantee s of due process when , whether
intentionally or unintentionally , it suppresses “material evidence favorable to the
defendant.” Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010) (citing Brady, 373 U.S. at
87). There are three elements of a Brady violation:
(1) the evidence must be favorable to the defendant because it
would have been either exculpatory or impeaching;
(2) the evidence must have been supp ressed by the prosecution,
intentionally or otherwise; and
(3) the evidence must be material—in other words, the absence of
the evidence must have caused prejudice to the defendant.

Id.; see also Strickler v. Greene, 527 U.S. 263, 281 –82 (1999). Because the materiality
analysis under the third prong “involves a mixed issue of fact and law, we review a district
court’s materiality determination de novo.” Walen, 777 N.W.2d at 216 . “Evidence is
material if there is a reasonable probability that, had the evidence been disclosed to the
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defense, the result of the proceeding would have been different.” Zornes v. State , 903
N.W.2d 411, 418 (Minn. 2017) (citation omitted) (internal quotatio n marks omitted). “A
reasonable probability is one that is sufficient to undermine confidence in the outcome.”
Id. (citation omitted) (internal quotation marks omitted).
Robert Dewey Interview
Robert Dewey is the father of Jodee Dewey, a witness for the prosecution. He owns
the land that, before the murder, Thoresen traveled to with Kayleene Greniger and Haiman.
During his interview, Robert Dewey stated that he was not at the residence on the day in
question, that he did not have a basket on the back of his four-wheeler, and that he had two
baseball bats in the garage, one painted black and one painted white. Thoresen additionally
claim that Robert Dewey suggested that any baseball bat he may have was a little slugger.
Robert Dewey stated that he did not believe any of the bats were missing.
Thoresen claims that Robert Dewey’s statement contradicts the trial testimony of
Kayleene Greniger. Kayleene Greniger testified that it was at the Dewey residence on a
four-wheeler ride that Thoresen told he r that they were going to kill Haiman. Kayleene
Greniger also testified that she saw a wooden baseball bat on the back of a four-wheeler
and later “saw the baseball bat in the car next to the machete.” Thoresen, 921 N.W.2d at
549–50.
The postconviction court concluded that, assuming Robert Dewey’s interview was
withheld and it could have been used to impeach Kayleen e Greniger, Thoresen was still
conclusively entitled to no relief because the interview was not material. The court reached
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this conclusion because Thoresen was unable to show that Robert Dewey’s interview
would have led to a different verdict.
We agree with the postconviction court that the allegedly suppressed evidence was
not material. We assume, as the district court did, that Thoresen meets the suppression
prong of Brady. Thoresen also meets the favorability prong of Brady because the evidence
could have been used to impeach Kayleene Greniger’s testimony.
But Thoresen’s argument fails on the materiality pron g. There is not a reasonable
probability that, had Thoresen been in possession of Robert Dewey’s interview, the
outcome of the jury trial would have been different. The origin of the bat would not
outweigh the evidence that Thoresen hit Haiman in the head with a bat. The evidence at
the jury trial included testimony about Haiman’s autopsy showing that he was struck in the
head with a blun t object, Kayleen e Greniger’s testimony that she saw Thoresen strike
Haiman in the head twice with a bat, and Thoresen’s own statement to Tristan Corwin that
he struck a kid in the head twice with a bat. See Thoresen, 921 N.W.2d at 550, 552. The
withheld interview was not material because there is not a reasonable probability that the
outcome of the jury trial would have been different had Thorsen had the interview before
trial. The refore, the postconviction court did not abuse its discretion by finding that the
failure to disclose Robert Dewey’s interview did not violate Brady.
John Peck Interview
John Peck gave a statement to investigators about Tristan Corwin. John Peck said
about Tristan Corwin, “But any, anyway, um, ah he’s been trying to fight all this stuff in
court ah about what he didn’t do and what he did do and that he had a bat, that was his bat.
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I guess somebody hit the guy in the head or something or?” Thoresen asserts that Peck’s
statement implicates Tristan Corwin in Haiman’s murder. He argues that the statement
shows that the bat was never in Thoresen’s hands and that the bat never came from the
Dewey residence.
The postconviction court found that Thoresen failed to show how this evidence was
favorable or material. The court stated that John Peck’s interview was “vague, general,
and full of conjecture” and could not show that Tristan Corwin murdered Haiman. The
court also stated that the origin of the bat is largely immaterial.
We agree with the postconviction court. Again, we assume that Thoresen meets the
suppression prong of Brady. But Thoresen has failed to show how John Peck’s interview
is favorable or material.
Evidence is favorable when it is exculpatory or could be used for impeachment
purposes. Walen, 777 N.W.2d at 216 . Thoresen’s assertion that John Peck’s vague and
speculative statement is exculpatory and shows that Tristan Corwin murdered Haiman is
without merit. Even if Tristan Corwin was the owner of the baseball bat, John Peck’s
statement does not implicate Tristan Corwin in the murder. John Peck stated that
“somebody hit the guy in the head or something.” He did not say who did so. Although
Tristan Corwin may have been the owner of the bat , this fact does not make him the one
who used it to kill Haiman, and thus Thoresen’s argument that John Peck’s interview is
exculpatory (and so favorable) fails. Further, there is no reasonable probability that the
result of the proceeding would have been different had Thoresen possessed John Peck’s
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statement before trial. Substantial evidence, including Kayleene Grainger’s testimony,
supports the jury’s conclusion that Thoresen hit Haiman in the head with the bat.
Donna Stram Interview
Thoresen argues that the prosecution withheld the interview of Donna Stram . He
asserts that Donna Stram’s interview contradicts the testimony of Kayleen e Greniger’s
brother, Jeff Greniger. Donna Stram told investigators that she was sitting in her car the
early morning of June 21, 2016 (the day of the murder), and saw two young gentlemen get
into a baby blue four -door vehicle at around 2:30 a .m. Donna Stram identified the two
men and told investigators that neither of the people she saw were Kayleen e Greniger or
Thoresen.1
Once again, we assume that Thoresen meets the suppression prong of Brady.
Further, while Thoresen fails to identify how this evidence would be used to impeach Jeff
Greniger, if we follow the lead of the district court and assume that Jeff Greniger was one
of the men identified, we could rea sonably conclude that Donna Stram’s statement could
be used to contradict Jeff Greniger’s testimony regarding when he traveled to and from the
apartment on the night before the murder. Accordingly, we can foresee how the interview
could have been favorable as impeachment evidence.
But even if we accept that argument, Donna Stram’s statement is immaterial as there
is no reasonable probability that the result of the proceeding would have been differ ent.
Impeaching Jeff Greniger’s credibility regarding his timeline would not negate the

1 The identities of the men Donna Stram saw are not in the record and were not shared
with Thoresen.
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substantial evidence that Thoresen killed Haiman. Jeff Greniger was not present at the
time of the murder . His testimony at the jury trial focused on events before t he murder:
that Thoresen beat up Haiman in the apartment and that Haiman was tied up and bleeding
on the floor. The testimony was corroborated by DNA evidence of blood in the apartment
and Jodee Dewey’s testimony that Haiman was injured there. Because Donna Stram’s
statement was not material, the district court did not abuse its discretion by concluding that
the failure to disclose Donna Stram’s interview did not violate Brady.
Facebook Posts
Thoresen argues that the prosecution withheld 770 Facebook posts . Thoresen
claims that he has never seen the Facebook posts and knows of their existence only from
an “item sheet” which, he asserts, shows that they were received by the investigators.
Thoresen contends that the posts could have been useful to impeach Kayleen e Greniger’s
testimony. After a thorough examination of the record, we conclude that Thoresen’s Brady
claim concerning the Facebook posts is barred by Knaffla.
The record shows that Thoresen knew that the State had the Facebook posts before
both the jury trial and his direct appeal. The posts were seized pursuant to a July 2016
search warrant issued to Facebook , which was subsequently extended. The warrants,
which expressly sought access to posts from the Facebook accounts of Thoresen, Kayleene
Grainger, Tristan Corwin, and Haiman, were placed in evidence at a February 26, 2017
hearing. Further, b efore the jury trial, Thoresen knew enough about the posts to
unsuccessfully challenge the seizure of the p osts. The district court denied his motion to
suppress use of the posts at trial, expressly finding that Thoresen lacked standing to
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challenge seizure of the posts from the accounts of Kayleene Grainger, Tristan Corwin,
and Haiman . This record evidence demonstrates that , at the time of his direct appeal,
Thoresen should have known about the seizure of the Facebook posts and the fact that he
did not have them. Because Thoresen failed to assert the State’s failure to disclose the
posts that he knew existed in his direct appeal, his claim is barred by Knaffla.
II.

Thoresen argues that the indictment filed against him was missing essential facts.
He also notes that e ach offense in the indictment included a charge for both principal
liability and accomplice liability. He asserts that in cluding two separate offenses in each
count was overly confusing to both the grand jury and to Thoresen. The Minnesota Rules
of Criminal Procedure require that indictments contain “a written statement of the essential
facts constituting the offense charged.” Minn. R. Crim. P. 17.02, subd. 2. Little more than
statutory language is necessary when “all that is essential to constitute the offense is stated
fully and directly.” State v. Bias, 419 N.W.2d 480, 486 (Minn. 1988). An indictment must
“apprise[] the defendant of what he must be prepared to meet.” Id. After a fair trial, a
conviction “will stand unless there is actual proof that [the] defendant has in fac t been
misled as to the charge brought against him, to his prejudice.” Id.
Thoresen’s claims regarding the grand jury indictment are barred by Knaffla.
Thoresen knew before his direct appeal what was included in the indictment and of the
possibility that essential facts were excluded from it. He also knew before his direct appeal
that the indictment included charges for both principal liability and a ccomplice liability.
Indeed, he made these arguments in the district court before his jury trial. The district court
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concluded that “[t]he grand jury instructions were not inaccurate or flawed in a manner that
violates [Thoresen’s] due process rights.”
Even if we considered Thoresen’s claims in the interests of justice, they fail on the
merits. First, the indictment co ntained sufficient essential facts to notify Thoresen of the
charges against him. See Bias, 419 N.W.2d at 486 (holding that similar language in a
charging document satisfied the requirements for a written statement of the essential facts
constituting the offense charged). This conclusion is evident because Thoresen filed a
motion in the district court challenging the indictment ; he also provided a defense
throughout the jury trial, arguing that Kayleene Greniger was the one who murdered
Haiman. Therefore, Thoresen has not met the burden of showing that the indictment was
so deficient that he could not defend himself.
Thoresen’s argument that the charges were overly confusing to him and to the grand
jury similarly fails. Principal and accomplice liability can be included in the same count.
Minn. R. Crim. P. 17.02, subd. 3 (“ The indictment or complaint may allege in one count
alternative theories of committing the offense or that the means by which the defendant
committed the offense are unknown.”). Additionally, the grand jury was given instructions
regarding principal and accomplice liability for each count. Further, as noted above ,
Thoresen was not misled as to the charges against him and there is no evidence the grand
jury did not understand the charges brought befo re them. Therefore, Thoresen is not
entitled to relief on this ground.

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III.
Thoresen also argues that the district court committed plain error when, despite the
lack of an objection, it failed to stop the prosecutor during closing argument from allegedly
misstating evidence and telling the jury what to believe . Under the plain -error test, an
appellant must show “that there was (1) an error, (2) that is plain, and (3) the error must
affect substantial rights.” State v. Matthews, 779 N.W.2d 543, 548 (Minn. 2010). An error
is plain when it is clear and obvious. Id. at 549. To establish that the error affected his or
her substantial rights, an appellant must show that “the error was prejudicial and affected
the outcome of the case.” Id.
The postconviction court found that Thoresen’s claims were barred by Knaffla and,
even if not, the prosecutor’s statements during closing argument s were neither inaccurate
nor inappropriate and, therefore, did not prejudice Thoresen.
We agree. Thoresen was present at the jury trial and heard the presentation of the
evidence. Even if we considered Thoresen’s claim in the interests of justice, it fails on the
merits. None of the prosecutor’s statements highlighted by Thoresen were inaccurate.
During closing argument, the prosecutor summarized evidence. Additionally, the court
instructed the jury that closing arguments were not evidence. And as discussed earlier, the
evidence against Thoresen was extensive. Thus, there is no plain error that affected
Thoresen’s rights and Thoresen is not entitled to relief on this ground.
IV.
Thoresen next argues that, because Kayleene Greniger’s testimony before the grand
jury was different then her testimony at the jury trial, the prosecution put forth inconsistent
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theories in violation of the doctrine of judicial estoppel. “The doctrine of judicial estoppel
has not been expressly recognized by this court.” State v. Pendleton, 706 N.W.2d 500, 507
(Minn. 2005). The doctrine of judicial estoppel generally requires that three conditions be
met: (1) the party presenting the allegedly inconsistent theories must have prevailed in its
original position, (2) there is a clear inconsistency between the original and subsequent
position of the party, and (3) there must not be any distinct or different issues of fact in the
proceedings. Id.
Before the grand jury, Kayleene Greniger testified that Thoresen cut off Haiman’s
head with the machete , but during the jury trial she testified that she was the one to
decapitate Haiman. We need not decide whether to recognize the doctrine of judicial
estoppel in this case . Thoresen’s claim based on the doctrine (if we did recognize it) is
barred by Knaffla. Thoresen had access to the grand jury testimony before his jury trial
and knew or should have known of the inconsistencies as soon as Kayleen e Greniger
testified at the jury trial. Because Thoresen knew or should have known about his potential
judicial estoppel claim at the time of his direct appeal, his judicial estoppel claim fails.
V.
Thoresen contends that the prosecutor committed misconduct by not disclosing plea
agreements presented by the Stat e to Tristan Corwin and Jeff Gr eniger, knowingly
presenting perjured testim ony to the grand jury, and misstating evidence and using an
improper theme throughout the jury trial. The postconviction court found that these claims
were known or should have been known at the time of his direct appeal and thus were
barred by Knaffla. The court also concluded that , were the claims not barred by Knaffla,
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they did not rise to the level of prosecutorial misconduct and, as a whole, did not prejudice
Thoresen.
We agree with the postconviction court that Thoresen’s prosecutorial misconduct
claims are barred by Knaffla. 2 By judicial order dated October 21, 2016 , Thoresen had
access to the grand jury transcript before his jury trial.3 Accordingly, he was aware of the
factual basis for his claim that the prosecutor allegedly presented perjured testimony to the
grand jury at the time of his direct appeal. Similarly, Thoresen was present during the jury
trial, heard the testimony of the various witnesses, and knew the prosecutor’s themes and
statements about the evidence. Thus, he knew the basis for a claim that the prosecutor
misstated evidence and used improper themes at the time of his direct appeal . Finally, no
Knaffla exception applies. Thoresen does not argue that an intervening decision created a
novel legal issue, and he did not establish that an excuse existed for his failure to raise
issues about which he knew. Therefore, his claims are barred.

2 Thoresen provides no evidence that Tristan Corwin or Jeff Greniger received a plea
deal. Because Thoresen does not point to anything that legitimately suggests that they
received a deal in exchange for their testimony, we decline to address the issue.

3 Thoresen argues that the prosecutor knowingly presented perjured testimony to the
grand jury because Kayleene Greniger told the grand jury that Thoresen used the machete
to decapitate Haiman but later, at the jury trial, admitted to being the one to decapitate
Haiman with the machete. Thoresen presented no evidence to support his claim that the
prosecutor knew Kayleen e Greniger was committing perjury before the grand jury. The
fact that Kayleen e Greniger later changed her story does not mean the prosecutor
knowingly elicited perjured testimony. Thoresen also claims that Jeff Greniger committed
perjury before the grand jury because his story to the grand jury was inconsistent with what
he told the police and at odds with the testimony of Jodee Dewey. Again, Thoresen makes
conclusory allegations that a change in story, or inconsistency between the narratives of
one witness and another, means the prosecutor knowingly elicited perjured testimony. That
alone is insufficient as a matter of law to prove that the prosecutor presented perjured
testimony.
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VI.
Thoresen also contends that he is entitled to postconviction relief based on
ineffective assistance of both trial counsel and appellate counsel. “Because claims of
ineffective assistance of counsel involve mixed questions of law and fact, our review of
decisions by the postconviction court is de novo.” Opsahl v. State, 677 N.W.2d 414, 420
(Minn. 2004).
To be entitled to an evidentiary hearing based on claims for ineffective assistance
of counsel, “an appellant must allege facts that, if proven by a fair preponderance of the
evidence, would satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S.
668, 687 (1984).” Chavez-Nelson v. State , 948 N.W. 2d 665, 671 (Minn. 2020) (internal
quotation marks omitted). A n appellant must “prove 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.’ ” Id. Counsel’s performance is presumed reasonable. Reed v. State,
793 N.W.2d 725, 733 (Minn. 2010) . Generally, we will not review a claim of ineffective
assistance of counsel when the attorney ’s conduct in question is based on trial strategy.
State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014).
A.
Thoresen argues that he received ineffective assistance of trial counsel because his
counsel failed to (1) file for a mistrial, (2) object to the introduction of prejudicial character
evidence, (3) demand further testing, and (4) move for a change of venue . The
postconviction court found that Thoresen’s claims for ineffective assistance of trial counsel
19
were barred by Knaffla and, even if not barred by Knaffla, they fail because he did not
establish that the representation he received fell below an objective standard.
We agree that Thoresen’s claims for ineffective assistance of trial counsel do not
provide a basis for postconviction relief. Each of the errors identified by Thoresen are trial
errors that either he knew or should have known at the time of his direct appeal. Further,
except for the failure to demand further testing, the claims fail as a matter of law because
Thoresen offers only conclusory assertions without detail, legal argument, explanation, or
support. See Crow v. State, 923 N.W.2d 2, 10 (Minn. 2019) (stating that postconviction
evidentiary hearing not required whe n claims “are based solely on conclusory,
argumentative assertions without factual support ” (citation omitted) (internal quotation
marks omitted)). And Thoresen does not explain what potential information would have
been gleaned from additional testing that would have resulted in a different outcome at
trial. First, Haiman was not killed in Thoresen’s apartment. Further, t here was other
testimony that Thoresen beat up Haiman in the apartment and that Haiman was tied up and
bleeding on the floor. The testimony was corroborated by DNA evidence of blood in the
apartment and Jodee Dewey’s testimony that Haiman was injured there. Therefore,
Thoresen’s claims of ineffective assistance of trial counsel fail.
B.
Thoresen’s claims of ineffective assistance of appellate counsel are not barred by
Knaffla because he could not have brought these claims at the time of his direct appeal .
Appellate counsel, however, do not have a duty to include all possible claims on direct
20
appeal and may choose to argue only the most meritorious claims. See Schneider v. State,
725 N.W.2d 516, 523 (Minn. 2007). Further, we have said that “[w]hen an appellant and
his counsel have divergent opinions as to what issues should be raised on appeal, his
counsel has no duty to include claims which would detract from other more meritorious
issues.” Case v. State , 364 N.W.2d 797, 800 (Mi nn. 1985). We will not second -guess
appellate counsel’s decision not to raise a claim that “counsel could have legitimately
concluded would not prevail.” Reed, 793 N.W.2d at 733 (citation omitted) (internal
quotation marks omitted).
Thoresen’s argument regarding ineffective assistance of appellate counsel is brief
and vague. Without elaboratin g, Thoresen asserts that there was “a breakdown of
communication between the Appellate Counsel and Petitioner, upon which the Appellate
Counsel fell below a reasonable standard and has hindered Mr. Thoresen’s due process
right to bring proper and legitimate legal issues forward in his Post Conviction Relief
Petition.” That assertion is not specific enough to support postconviction relief.
Thoresen also conclusorily mentions that his appellate counsel did not raise or spot
issues relating to deficiencies in the search warrants, items that were not produced to the
defense, and trial counsel’s failure to hire independent expert witnesses to testify in court
to dispute the evidence that was presented against him. But he does not identify what
experts trial counsel should have, but did not, hire or how they would have made a
difference. We have reviewed the record and the district court’s order rejecting Thoresen’s
claim that the search warrants were deficient and we find no error. Appellate counsel could
have legitimately concluded that the argument would fail. And Thoresen does not identify
21
the unproduced items that he now claims he knew about at the time of the direct appeal
that appellate counsel should have challenged . Therefore, we conclude that , because
Thoresen did not bear his burden to demonstrate by a preponderance of the evidence that
appellate counsel’s representation fell below a reasonable standard, he is not entitled to an
evidentiary hearing.
VII.
Thoresen next contends that there is insufficient evidence against him to sustain his
conviction. Thoresen first argues that there was no physical evidence linking him to the
murder and no eyewitnesses except Kayleen e Greniger. This claim is barred by Knaffla.
Thoresen knew of these insufficiency-of-the-evidence claims at the time of his direct
appeal. Indeed, Thoresen argued on direct appeal that Kayleene Greniger’s testimony was
insufficient and we held that Kayleene Greniger’s testimony was sufficiently corroborated.
Thoresen, 921 N.W.2d at 551–52.
Thoresen also argues that only 6 of the 78 swabs of blood collected from his
apartment were tested . Consequently, he requests more testing to determine any other
contributors and to determine whether the blood was human or animal. Thoresen’s request
for more testing is governed by Minn. Stat. § 590.01, subd. 1a(a), which states:
A person convicted of a crime may make a motion for the performance of
fingerprint or forensic DNA testing to demonstrate the person ’s actual
innocence if: (1) the testing is to be performed on evidence secured in relation
to the trial which resulted in the conviction; and (2) the evidence was not
subject to the testing because either the technology for the testing was not
available at the time of the trial or the testing was not available as evidence
at the time of the trial.

22
Thoresen does not satisfy these statutory requirements. He failed to demonstrate
that the evidence was not subject to testing due to lack of technology or that the testing was
not available as evidence at the time of the trial . Indeed, some samples were tested.
Therefore, because Thoresen does not meet the statutory requirements necessary to require
additional testing, this argument fails.
VIII.
Finally, Thoresen challenges the search warrants in his case and argues that he was
subject to custodial interrogation without being read his rights in violation of Miranda v.
Arizona, 384 U.S. 436, 439 (1966). Thoresen’s claims are barred by Knaffla. He knew the
basis for the claims at the time of direct appeal. In fact, Thoresen made these arguments
to the district court before his trial. The court found that probable cause existed and
supported the warrants. Additionally, the court found that part of Thoresen’s statement
was taken in violation of Miranda and that part of his statement was suppressed and not
used during the trial. Therefore, Thoresen’s claims regarding the alleged deficiencies in
the search warrants and the alleged Miranda violations are clearly barred by Knaffla.
CONCLUSION
For the foregoing reasons, we affirm the decision of the district court.
Affirmed.