Gerald James Risk, 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This opinion is nonprecedential except as provided by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
A20-1409

Gerald James Risk, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed June 1, 2021
Affirmed
Frisch, Judge

Hennepin County District Court
File No. 27-CR-16-12286

Mark D. Kelly, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jordan W. Rude , Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Cochran, Presiding Judge; Worke, Judge; and Frisch,
Judge.

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NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant challenges the district court’s denial of an evidentiary hearing on hi s
petition for postconviction relief, in which he alleged that he received ineffective assistance
of trial and appellate counsel. We affirm.
FACTS
On May 6, 2016, appellant Gerald James Risk was charged with one count of first -
degree criminal sexual conduct with victim K.T., a person under 13 years old , in violation
of Minn. Stat. § 609.342, subd. 1(a) (2014). The criminal complaint contained allegations
that K.T. was at Risk’s home for a sleepover with her friend H.H. when R isk engaged in
sexual contact with K.T. During a six-day jury trial, K.T. testified to the events as alleged
in the complaint , and H.H. of fered contradict ing testimony and testified that nothing
inappropriate occurred. The jury found Risk guilty, and the district court sentenced Risk
to 144 months in prison. Risk directly appealed his conviction and argued he was entitled
to a new trial because of prosecutorial misconduct. We affirmed his conviction. State v.
Risk, No. A18-0925, 2019 WL 4009145, at *1 (Minn. App. Aug. 26, 2019), review denied
(Nov. 19, 2019).
On June 18, 2020, Risk filed a petition for postconviction relief wherein he claimed
ineffective assistance of trial and appellate counsel entitled him to a new trial. In part, the
postconviction petition contains allegations that trial counsel “did not attempt to in terview
any of the [s]tate’s witnesses including the alleged victim(s)” prior to trial and “failed to
interview any of the potential defense witnesses that were inside of the petitioner’s home
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at the time of the alleged crime, including the alleged victim( s).” The petition further
provides that “[i]f called to testify at trial, the numerous individuals present in the home on
the night in question would have contradicted the [s]tate’s allegations and raised reasonable
doubt as to the elements of the crime c harged.” T he district court summarily denied the
postconviction petition, concluding that the petition did not “set forth sufficient facts upon
which to set a hearing on his claim for a new trial.” The district court also concluded that
the claim of ineffective assistance of appellate counsel failed on the merits because, in part,
the petition did not set forth “specific[] facts which could lead the [c]ourt to conclude that,
absent trial[] counsel[’s] ineffective assistance, the result probably would have been
different.” This appeal follows.
DECISION
“We review the denial of a petition for postconviction relief, including denial
without a hearing, for an abuse of discretion.” Reed v. State, 925 N.W.2d 11, 18 (Minn.
2019). “A postconviction court does not abuse its discretion unless it has exercised its
discretion in an arbitrary or capricious manner, ba sed its ruling on an erroneous view of
the law, or made clearly erroneous factual findings.” Henderson v. State, 906 N.W.2d 501,
505 (Minn. 2018) (quotation omitted).
To succeed in a claim of ineffective assistance of counsel, Risk must satisfy the two-
prong test set forth in Strickland v. Washington: (1) counsel’s performance fell below an
objective standard of reasonableness, and (2) absent counsel’s unreasonable performance,
the result of the proceeding likely would have been different . 466 U.S. 668, 687, 696-97
104 S. Ct. 2052, 2064, 2069 (1984). “To receive an evidentiary hearing on a postconviction
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claim of ineffective assistance of appellate counsel, a defendant is required to allege facts
that, if proven by a fair preponderance of the evidence, would satisfy the two -prong test
announced in Strickland v. Washington .” Bobo v. State , 820 N.W.2d 511, 516 (Minn.
2012). “[W]hen an ineffective assistance of appellate counsel claim 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.” Wright v. State, 765 N.W.2d 85, 91
(Minn. 2009) (alteration in original) (quotation omitted).
A petitioner seeking postconviction relief has the burden of
establishing by a fair preponderance of the evidence that the
facts warrant relief. If the petition and the files and records of
the proceeding conclusively show that the petitioner is entitled
to no relief, a petitioner is not entitled to an evidentiary hearing.
Further, allegations in a petition for postconviction relief must
be more than argumentative assertions without factual support.
Erickson v. State, 725 N.W.2d 532, 534 (Minn. 2007) (quotations and citations omitted).
Risk bore the burden to allege facts in his petition sufficient to establish by a fair
preponderance of the evidence that he was entitled to relief. See id. Mere “argumentative
assertions without factual support” are insufficient to meet the threshold requirement for
an evidentiary hearing on a postconviction petition. See id. A district court may deny an
evidentiary hearing in the absence of proof supporting the allegations in the petition. Id.
at 537.

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The district court denied the request for an evidentiary hearing in part because the
petition for postconviction relief did not contain sufficient allegations to support the second
Strickland prong—that the result of the proceeding would have been different but for the
ineffective assistance of trial or appellate counsel. See Strickland, 466 U.S. at 696-97, 104
S. Ct. at 2069 . We see no abuse of discretion by the district court in reaching this
conclusion. The petition contains general, nonspecific allegations that trial counsel did not
interview unidentified witnesses and that if called to testify at trial, “numerous individuals”
would have “contradicted the [s]tate’s allegations.” But the petition does not contain any
factual basis for these assertions, does not identify any individual not interviewed or called
to testify at trial, does not set forth the purported testimony of any such individual, and
does not explain how the result would have been different but for counsel’s failure to obtain
such witness interviews or elicit unspecified testimony. These argumentative assertions
without factual support do not amount to an offer of proof and are insufficient to warrant
an evidentiary hearing on a petition for postconviction relief. Risk also complains of other
errors by trial counsel, such as the failure to object to evidence or argument, but again, the
petition contains no allegations or evidence that, even assuming that such actions fell below
an objective standard of reasonableness, the result would have been any different but for
those alleged errors.
The petition contains no facts or offer of proof to establish the second Strickland
prong, which is fatal to the claim s of ineffective assistance of trial and appellate counsel.
Accordingly, the district court properly exercised its discretion in concluding that Risk
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offered mere argumentative assertions without facts needed to warrant an evidentiary
hearing.1
Affirmed.

1 Because we conclude that the allegations set forth in the petition do not satisfy the
Strickland test, we do not address the conclusion by the district court that the petition was
Knaffla-barred or Risk’s argument that the claims in the petition are subject to an exception
to the Knaffla-bar. We also do not address the district court’s conclusion that Risk’s
complaints about trial strategy do not amount to ineffective assistance of counsel. But we
note that we generally do not review strategic decisions of trial or appellate counsel. See
State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014) (instructing that we “will not review an
ineffective-assistance-of-counsel claim that is based on trial strategy,” which includes
deciding which defenses to raise and “the extent of counsel’s investigation and the selection
of evidence”); see also Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009) (instructing that
“[c]ounsel does not act unreaso nably by not asserting claims that counsel could have
legitimately concluded would not prevail”); Nunn v. State , 753 N.W.2d 657, 661 (Minn.
2008) (directing that similar deference is given to appellate counsel strategy).