Pao Choua Xiong, 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This opinion is nonprecedential except as provided by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
A21-0380

Pao Choua Xiong, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 27, 2021
Affirmed
Bratvold, Judge

Ramsey County District Court
File No. 62-CR-17-1995

Pao Choua Xiong, Faribault, Minnesota (pro se appellant)

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

John J. Choi, Ramsey County Attorney, Alexandra Meyer, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Larkin, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
BRATVOLD, Judge
Appellant seeks revie w of the district court’s order denying his petition for
postconviction relief from his 2017 conviction of first-degree criminal sexual conduct.
Appellant argues (1) the district court erred by summarily denying his petition as
2
procedurally barred, and (2) he is entitled to relief based on the ineffective assistance of
trial and appellate counsel. Appellant also challenges the district court’s denial of an
evidentiary hearing. We affirm.
FACTS
In 2017, the state charged appellant Pao Choua Xiong with one count of first-degree
criminal sexual conduct under Minn. Stat. § 609.342, subd. 1(g) (2016), alleging he
sexually assaulted his eight-year-old child (daughter).
N.L. (mother) called police in March 2017 to report daughter was crying and
bleeding from her vagina. Police transported daughter to Children’s Hospital in St. Paul
and daughter told a nurse practitioner that Xiong came into the bathroom, lifted her onto
the counter, and “raped me, he tried to rape me.”
Daughter was first seen in the emergency department by Dr. Henry Ortega, who
referred daughter to the Midwest Children’s Resource Center (MCRC) for an evaluation.
Later that day, an MCRC nurse and Dr. Mark Hudson examined daughter. Dr. Hudson
testified he found “a small rupture” to the entrance of daughter’s vagina, which bled upon
manipulation. Dr. Hudson later testified daughter’s injury was “consistent” with her
described assault. In July 2017, a jury found Xiong guilty of first-degree criminal sexual
conduct. The district court sentenced Xiong to 156 months in prison.
Xiong appealed, arguing he was entitled to a new trial or resentencing. This court
affirmed Xiong’s conviction, holding (1) “the district court did not abuse its discretion by
denying appellant’s motion for a mistrial after having failed to administer an oath before
[daughter] testified, where [daughter] was sworn and verified her earlier testimony”; and
3
(2) “[t]he district court erroneously admitted testimony of [Xiong’s] drug and alcohol use”
as general relationship evidence, “but the error was harmless.” State v. Pao Choua Xiong ,
No. A17-1976, 2018 WL 6165491, at *2–3 (Minn. App. Nov. 26, 2018). On the sentencing
issue, however, we reversed and remanded, concluding “[t]he district court abused its
discretion” by sentencing Xiong using a criminal-history point for a Wisconsin felony
conviction without determining whether the offense would qualify as a felony in
Minnesota. Id. at *5–6. During the remand, Xiong withdrew his request for resentencing
because the state “satisfied its burden to prove his out-of-state criminal history points.”
On November 16, 2020, Xiong petitioned for postconviction relief, seeking an
evidentiary hearing and a new trial under Minn. Stat. § 590.04, subd. 1 (2020). Xiong
argued he is entitled to a new trial based on evidentiary issues before and during trial,
claiming the state did not disclose relevant information about the medical exams and
interviews of daughter before trial and the probable-cause statement in the complaint “was
hearsay.”
1 Xiong also argued he is entitled to a new trial because his trial counsel’s

1 Xiong’s petition also argued the evidence was insufficient to sustain his conviction and
asserted his “actual innocence,” both of which the district court rejected as procedurally
barred. Xiong’s brief to this court mentions sufficiency of the evidence once or twice but
Xiong cites no legal authority or present an argument about why he is entitled to relief on
this ground. Xiong’s brief states “ACTUAL INNOCENCE” on the cover, along with
mentioning “actual innocence” a few times in the argument section. But we cannot discern
a cogent issue separate from those discussed below. Xiong’s brief quotes fed eral caselaw
on “actual innocence” in the context of a habeas petition, but Xiong’s brief does not cite
any relevant Minnesota legal authority on this issue, nor does he articulate why he is
entitled to relief on this ground. Because he does not present a cogent argument or cite
relevant legal authority, we consider neither sufficiency of the evidence or Xiong’s actual
innocence. See Scruggs v. State, 484 N.W.2d 21, 25 n.1 (Minn.1992) (holding when
defendant’s appellate brief does not raise issues previously stated in a petition for
postconviction relief, those issues are considered waived); see also McKenzie v. State,
4
representation “fell below the objective standard of reasonableness,” prejudiced his
defense, and therefore deprived him of his constitutional right to effective assistance of
counsel. Xiong identified his trial counsel’s failure to investigate and cross-examine
witnesses about evidence, specifically, bloody underwear recovered from the crime scene,
the medical examinations of daughter, and DNA evidence taken from daughter.
The district court denied Xiong’s petition without an evidentiary hearing. The
district court determined Xiong’s evidentiary and ineffective-assistance-of-counsel claims
were procedurally barred. The district court also determined “[e]ven if the Court decided
that [Xiong’s] ineffective assistance of counsel claims were not Knaffla-barred, they would
nevertheless fail on the merits” because his claims are “mere allegations” and did not
warrant an evidentiary hearing.
This appeal follows.
DECISION
I. The district court did not abuse its discretion by denying Xiong’s petition for
postconviction relief without a hearing.

Minnesota law permits “a person convicted of a crime” to petition for
postconviction relief when they claim a conviction violated their constitutional or statutory
rights, or because newly discovered evidence has established their innocence. Minn. Stat.
§ 590.01, subd. 1 (2020). After a convicted person files a postconviction petition, “an
evidentiary hearing must be held ‘[u]nless the petition and the files and records of the

583 N.W.2d 744, 746 n.1 (Minn. 1998) (rejecting arguments not adequately briefed and
considering the issue waived when appellant’s brief “allude[d] to” an issue but “fail[ed] to
address them in the argument portion of his brief”).
5
proceeding conclusively show that the petitioner is entitled to no relief.’” Andersen v. State,
913 N.W.2d 417, 422 (Minn. 2018) (quoting Minn. Stat. § 590.04, subd. 1). “The petition
must allege more than argumentative assertions without factual support.” Brown v. State,
895 N.W.2d 612, 618 (Minn. 2017). “An evidentiary hearing 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.” Id. (internal quotations omitted).
An appellate court reviews “the denial of a petition for postconviction relief for an
abuse of discretion.” Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017). A district court
abuses its discretion in postconviction matters “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.’” Id. (quoting Rhodes v. State, 875 N.W.2d 779, 786
(Minn. 2016)). “Legal issues are reviewed de novo,” but “review of factual issues is limited
to whether there is sufficient evidence in the record to sustain the postconviction court’s
findings.” Id. (internal citations and quotations omitted).
“[P]ost-conviction remedies exist to try fundamental issues that have not been tried
before.” State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976). This rule of law includes a
procedural component, known as the “Knaffla bar.” When a postconviction petition is filed
after a direct appeal is taken, (a) “all matters raised” during the direct appeal, and (b) “all
claims known but not raised” during direct appeal “will not be considered upon a
subsequent petition for postconviction relief.” Id.; see also 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
6
sentence.”). “[A] postconviction court may summarily deny a claim that is . . . procedurally
barred under Knaffla.” Colbert v. State, 870 N.W.2d 616, 622 (Minn. 2015)
Xiong argues the district court’s denial of his postconviction petition was an abuse
of discretion for four reasons, which we discuss in turn.
A. Recanted and false-testimony claims
Xiong argues the district court erred by denying postconviction relief because Xiong
“presented the Postconviction Court with many instances of recantation and perjured
testimony from the state’s witnesses.” Xiong offers three examples. First, he contends
mother made the “first false and misleading statement” and “committed perjury” because
she said daughter was crying and bleeding after the assault. According to Xiong, mother
was not present just after the assault; the only witness present, daughter’s older sister,
testified daughter was not crying after the incident and older sister did not see blood on
daughter. Second, Xiong claims Dr. Hudson “committed perjury with false and misleading
statements” because in his medical report and police interviews Dr. Hudson stated he found
a recent injury to daughter’s vaginal area; but at trial Dr. Hudson testified “there was no
injury on the hymen itself.” Third, Xiong claims a St. Paul police investigator made “false
and misleading statements” because she testified at trial that someone else wrote the
complaint, which she signed. According to Xiong, the probable-cause statement was
“hearsay based on hearsay with false and misleading information” that was not
corroborated by any physical evidence or other witnesses. The state argues Xiong’s
false-testimony claims are Knaffla-barred “because [Xiong] knew of them at the time of
direct appeal and yet failed to raise them.”
7
We reject Xiong’s recanted or false-testimony claims for four reasons. First, Xiong
has not properly presented a recanted-testimony claim, which usually rests on an affidavit
or other evidence. See, e.g., Wilson v. State, 726 N.W.2d 103, 104 –05, 107–08 (Minn.
2007) (granting postconviction hearing where jailhouse informant recanted in writing);
Opsahl v. State, 677 N.W.2d 414, 423–24 (Minn. 2004) (granting postconviction hearing
based on affidavits that show a witness had recanted). Xiong presented no affidavits or
other evidence that any trial witness later recanted. Rather, Xiong claims one witness’s
testimony contradicted either another witness’s testimony or statements in medical and
police reports.
Second, during district court proceedings, Xiong did not raise any claim about false
testimony by mother or Dr. Hudson. While Xiong’s petition criticized the probable-cause
statement as false, he did not allege the police investigator gave false testimony. “It is well
settled that a party may not raise issues for the first time on appeal from denial of
postconviction relief.” Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005); see also
Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006) (determining an appellant’s claims
raised for the first time on appeal are forfeited). Thus, we decline to decide these issues
because Xiong forfeited them by raising the issues for the first time on appeal.
Third, Xiong’s false-testimony claims are Knaffla-barred. Xiong’s false-testimony
claims rely on trial testimony and are thus based on inconsistences known to Xiong at the
time of his direct appeal. Thus, Xiong’s false-testimony claims are Knaffla- barred. See
Knaffla, 243 N.W.2d at 741.
8
Fourth, even if we were to review Xiong’s false-testimony claims on the merits,
they would fail. Xiong contends we should review these claims under the three-part test
applied to newly discovered evidence of false testimony. See State v. Caldwell,
322 N.W.2d 574, 584 –85 (Minn. 1982) (adopting the Larrison test for postconviction
petitions involving false testimony); Larrison v. United States, 24 F.2d 82, 87–88 (7th Cir.
1928) (providing a three-part test to determine whether a new trial should be granted
because of false testimony).2
But Xiong has not produced newly discovered evidence of false testimony. Instead,
as already mentioned, Xiong relies on trial testimony to identify inconsistencies and
conflicts in witness testimony, medical reports received as exhibits, and the criminal
complaint. As the supreme court has stated, “[t]his court has recognized that
inconsistencies and conflicts in some particular area between one state witness and another
does not constitute false testimony nor any basis for reversal.” State v. Stufflebean,
329 N.W.2d 314, 319 (Minn. 1983). Rather, inconsistencies are “‘a sign of the fallibility of
human perception—not proof that false testimony was given at trial,’” and “this is
especially true when the testimony goes to the particulars of a traumatic and extremely
stressful incident.” Id. (quoting State v. Hanson, 176 N.W.2d 607, 609 (Minn. 1970)).

2 While the Seventh Circuit replaced the Larrison test with the four-part reasonable
probability test, Minnesota continues to apply the Larrison test to false witness testimony.
See United States v. Mitrione, 357 F.3d 712, 718 (7th Cir. 2004) (replacing the Larrison
test with the four-part “reasonable probability test”); see also Andersen v. State ,
940 N.W.2d 172, 178 (Minn. 2020) (“We have adopted the Larrison test for determining
whether to grant a new trial based on falsified or recanted witness testimony.”).
9
Thus, Xiong’s recanted and false-testimony claims fail as a matter of law and the district
court did not err by denying postconviction relief without a hearing.
B. Newly discovered evidence claims
Xiong argues the district court erred by denying postconviction relief on newly
discovered evidence, claiming the state withheld evidence, and his trial counsel did not
provide him with “his full Rule 9 Motion of Discovery until after his direct appeal.”
Specifically, Xiong argues the state withheld supplemental police reports, Dr. Ortega’s
medical reports, and MCRC’s reports. Xiong contends these exhibits “are Newly
discovered” even though they “were entered as evidence” or “testified to” at trial. The state
argues this claim is Knaffla-barred because Xiong knew of the evidence at the time of direct
appeal and “yet failed to raise” the issue during direct appeal.
In postconviction proceedings that seek a new trial based on newly discovered
evidence, a petitioner must prove the evidence: “(1) was not known to the defendant or
defense counsel at the time of the trial; (2) could not have been discovered through due
diligence before trial; (3) is not cumulative, impeaching, or doubtful; and (4) would
probably result in an acquittal or a more favorable result.” See State v. Mosely, 895 N.W.2d
585, 590 (Minn. 2017) (citing Rainer v. State , 566 N.W.2d 692, 695 (Minn. 1997)). All
four elements must be proven for a claim of newly discovered evidence to succeed. Id.
The district court determined Xiong’s claims that the state withheld discovery and
newly discovered evidence failed on the first element “because he readily admits his [trial]
counsel knew about this evidence at the time of trial,” and “[e]vidence is not
‘newly-discovered’ merely because a petitioner did not know about it at the time of trial.”
10
We agree with the district court. Xiong concedes witnesses testified about these medical
and police reports and the reports were admitted as evidence during his trial. Xiong’s
claims therefore fail on the first element of the newly discovered evidence test. See id. We
also conclude Xiong’s newly discovered evidence claims were known and not raised in his
direct appeal and are Knaffla-barred. See Knaffla, 243 N.W.2d at 741. Thus, the district
court did not abuse its discretion by summarily denying postconviction relief on Xiong’s
claims of newly discovered evidence.
C. Ineffective assistance of trial counsel
Xiong argues he is entitled to an evidentiary hearing on his
ineffective-assistance-of-trial-counsel claims because his trial counsel’s “representation
fell below an objective standard of reasonableness,” “the results of the proceedings and
trial would have been different” without Xiong’s trial counsel’s poor representation, and
his trial counsel’s decisions cannot be reviewed based solely on the trial record.
The federal and state constitutions guarantee criminal defendants the right to
effective assistance of counsel. State. v. Hokanson, 821 N.W.2d 340, 357 (Minn. 2012) ;
U.S. Const. amend. VI; Minn. Const. art 1, § 6. When this court reviews an
ineffective-assistance-of-counsel claim, it uses the test announced in Strickland v.
Washington, 466 U.S. 668, 687 (1984) . See State v. Rhodes, 657 N.W.2d 823, 842
(Minn. 2003). Strickland requires an appellant to show that “(1) his counsel’s performance
fell below an objective standard of reasonableness, and (2) that a reasonable probability
exists that the outcome would have been different but for counsel’s errors.” Andersen v.
State, 830 N.W.2d 1, 10 (Minn. 2013) (citing Strickland, 466 U.S. at 687). The appellate
11
court need not address both Strickland elements if one is dispositive. Id. Also, “there is a
strong presumption that counsel’s performance was reasonable.” Id. (citation omitted).
This court will not review an ineffective-assistance-of-counsel claim under Strickland
when the claim is based on counsel’s trial strategy. Chavez-Nelson v. State, 948 N.W.2d
665, 671 (Minn. 2020) (citing State v. Vang, 847 N.W.2d 248, 267 (Minn. 2014)).
Xiong outlines three reasons his trial counsel provided ineffective assistance. First,
Xiong claims his trial counsel was ineffective because Xiong “was not provided with his
Rule 9 Motion of Discovery, or his transcripts of all the proceedings in his case.” Second,
Xiong contends that “he was denied effective assistance of counsel” because his trial
counsel failed to call Dr. Ortega as a witness even though he was the first physician to
examine daughter and found “‘no injuries or external lesions or (Blood)” on daughter.
According to Xiong, Dr. Ortega’s testimony “would have rebutted” the testimony of Dr.
Hudson and the MCRC nurse.
Third, Xiong claims his trial counsel’s investigation and trial tactics amounted to
ineffective assistance, focusing on two examples. In the first example, police collected
daughter’s clothing after the assault and the district court admitted a photo of daughter’s
bloody underwear during trial. Xiong contends the outcome of his case would have been
different if his trial counsel had “investigated” to whom the underwear belonged,
conducted DNA tests on the underwear, produced the underwear at trial, and called
daughter, mother, and older sister as rebuttal witnesses. In the second example, Xiong
contends his trial counsel failed to “investigate” MCRC’s medical findings and failed to
challenge or “investigate” the handling of the DNA evidence.
12
To be clear, Xiong’s claims about his trial attorney’s failure to “investigate” revolve
around his belief that his attorney should have asked mo re or different questions at trial
about the bloody underwear and the state’s DNA-collection processes, objected to
admission of photos of the bloody underwear because the underwear itself could have been
admitted, and should have tested the underwear for DNA.
The district court determined each of Xiong’s ineffective-assistance-of-trial-counsel
claims were Knaffla-barred because they “can be decided on the basis of the district court
record.” The district court’s analysis relies on an important distinction. “When a claim of
ineffective assistance of trial counsel can be determined on the basis of the trial record, the
claim must be brought on direct appeal or it is Knaffla-barred. ” Sontoya v. State,
829 N.W.2d 602, 604 (Minn. 2013).
Xiong’s claims are challenges to his trial counsel’s performance—the failure to ask
specific questions at trial, the failure to call certain witnesses, the failure to offer evidence,
or the failure to object to certain evidence. We agree with the district court that each of
Xiong’s challenges was discernable on the trial court record. For example, the record
reflects that Xiong’s legal counsel offered Dr. Ortega’s report as evidence at trial rather
than call him as a witness because there was an issue with service of Dr. Ortega’s subpoena,
so Dr. Ortega was not present during trial, despite the attorney’s best efforts. As a result,
the reason Dr. Ortega was not called as a witness is discernable on the trial court record
and does not require more fact-finding. Xiong’s ineffective-assistance-of-trial-counsel
claims therefore should have been raised during the direct appeal. Similarly, Xiong’s claim
challenging his attorney’s decision not to perform DNA-testing on daughter’s underwear
13
is discernable on the trial court record and does not require more fact-finding. Because
Xiong’s criticisms of trial counsel’s performance were “known to” Xiong “at the time of
his direct appeal,” we conclude the claims “are barred by [Knaffla].” See Andersen ,
830 N.W.2d at 10; Carridine v. State, 867 N.W.2d 488, 493 (Minn. 2015) (determining
appellant’s ineffective -assistance-of-trial-counsel claim was procedurally barred and
“could have been raised on direct appeal because the claims are based on the trial record”).
Alternatively, the district court determined Xiong’s ineffective-assistance-of-trial-
counsel claims would fail on the merits. Andersen guides our review of the merits. In
Andersen, the appellant argued ineffective assistance of counsel, in part, because his trial
counsel “failed to investigate the case, [and] did not call exculpatory witnesses or impeach
adverse witnesses.” 830 N.W.2d at 13. The supreme court rejected these claims because
the conduct at issue “falls within trial strategy and therefore is not reviewable.” Id. (citing
State v. Davis, 820 N.W.2d 525, 539 n.10 (Minn. 2012)) (determining legal counsel’s
decisions about the extent of investigation, which witnesses to call, and what questions to
ask are typically matters of trial strategy that appellate courts will not review under
Strickland).
The claims rejected in Andersen are like the claims raised by Xiong, who criticizes
his trial counsel’s strategy about the extent of investigation, which witnesses to call, what
questions to ask witnesses, whether to object to evidence, and whether to have evidence
independently tested, such as DNA testing of the underwear. We conclude Xiong
challenges matters of reasonable trial strategy. See Carridine, 867 N.W.2d at 494
(determining trial strategy includes determining which witnesses to call at trial) ;
14
Sanchez-Diaz v. State, 758 N.W.2d 843, 848 (Minn. 2008) (determining that selecting the
evidence to present to the jury is trial strategy); Andersen, 830 N.W.2d at 10 (determining
the extent of an attorney’s investigation is trial strategy); Hodgson v. State, 540 N.W.2d
515, 518 (Minn. 1995) (noting defense counsel’s decision not to investigate leads and not
have evidence independently tested was trial strategy). Thus, we decline to review Xiong’s
ineffective-assistance-of-trial-counsel claims under the Strickland test. See Chavez-Nelson,
948 N.W.2d at 665.
In sum, Xiong’s ineffective-assistance-of-trial-counsel claims were Knaffla-barred.
But even if they were not, the claims are not appropriately reviewed under Strickland
because Xiong’s claims rest on trial strategy. Thus, the district court did not err by
summarily denying postconviction relief for ineffective assistance of trial counsel.
D. Ineffective assistance of appellate counsel
Xiong argues Knaffla “does not bar a claim of ineffective assistance of Appellate
Counsel because the claim could not have been known until after direct appeal.” The state
argues Xiong did not raise ineffective assistance of appellate counsel during district court
proceedings, so he cannot raise the issue for the first time on appeal.
We first consider what conduct Xiong identified to support his claim for ineffective
assistance of appellate counsel. Xiong’s opening brief does not describe his appellate
counsel’s performance nor how it provided ineffective assistance, as required by the first
step of the Strickland test. Andersen, 830 N.W.2d at 10. In his reply brief, Xiong argues
his appellate counsel was ineffective for failing to inform him he could file a pro se
supplemental brief, by not providing him with copies of transcripts and discovery from
15
district court proceedings, and for failing to raise an ineffective-assistance-of-trial-counsel
claim in Xiong’s direct appeal given the “unprofessional errors that were made by trial
counsel.”
Our review of Xiong’s petition for postconviction relief confirms he did not identify
or criticize appellate counsel’s performance and therefore did not raise ineffective
assistance of appellate counsel during district court proceedings. “It is well settled that a
party may not raise issues for the first time on appeal from denial of postconviction relief.”
Azure, 700 N.W.2d at 447. In Azure, the defendant “did not even raise the claim of
ineffective assistance of appellate counsel in his postconviction petition” and the supreme
court held, “[b]ecause Azure did not raise the claim in his postconviction petition and the
postconviction court made no findings on the issue, we have no postconviction ruling to
review. Accordingly, we hold that Azure’s ineffective assistance of appellate counsel claim
has been waived for the purposes of this postconviction appeal.” Id. Because Xiong did not
raise ineffective assistance of appellate counsel during district court proceedings, Xiong
forfeited the issue and we decline to consider it.
Affirmed.