Derrick Lemar Forest, 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This opinion is nonprecedential except as provided by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
A24-0264

Derrick Lemar Forest, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed November 4, 2024
Affirmed
Wheelock, Judge

Hennepin County District Court
File No. 27-CR-19-32094

Derrick Lemar Forest, Bayport, Minnesota (pro se appellant)

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

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Senior Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Reyes, Judge; and Wheelock,
Judge.
NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this appeal from the postconviction court’s denial of his second petition for
postconviction relief, appellant contends that his arguments are not Knaffla barred, he
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received ineffective assistance of appellate counsel, and he should have received an
evidentiary hearing on the petition. We affirm.
FACTS
The details of appellant Derrick Lemar Forest’s conviction for second-degree
intentional murder in December 2019 are set forth in a previous opinion from this court,
State v. Forest, No. A20-1382, 2022 WL 1446924, at *1-2 (Minn. App. May 9, 2022), rev.
denied (Minn. Aug. 9, 2022). We therefore recite only the facts relevant to this appeal.
In the summer of 2020, Forest appeared for a jury trial and the district court
instructed the jury on the following offenses: first-degree premeditated murder,
second-degree intentional murder, and first-degree manslaughter while acting in the heat
of passion. Id. A jury found Forest guilty of second-degree intentional murder and not
guilty of the other charges, and the district court entered a judgment of conviction and
sentenced Forest to 386 months in prison for his second-degree intentional-murder
conviction. Id. at 2. Forest appealed, and we stayed the appeal so that he could file a
petition for postconviction relief. Id. The postconviction court denied his first petition,
which alleged ineffective assistance of trial counsel, determining that (1) the evidence at
trial was insufficient for a jury instruction on second- degree unintentional murder and
(2) the evidence of Forest’s intent provided through the opinion testimony of a passenger
in the car at the time of the murder was admissible. We then dissolved the stay and affirmed
Forest’s conviction, concluding that he did not receive ineffective assistance of trial
counsel because (1) the evidence proving Forest’s intent to commit the murder was
“overwhelming,” and thus, the lack of an unintentional-murder instruction was not
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prejudicial; (2) the evidentiary rules permitted the passenger’s testimony about Forest’s
intent; (3) the trial evidence would not have supported a self-defense argument or
instruction; (4) trial counsel did not coerce Forest into waiving his right to testify; (5) the
heat-of-passion defense was rational given the evidence; and (6) the trial evidence did not
support an accomplice instruction. Id. at *3, *5-6, *8.
In August 2023, Forest filed a second petition for postconviction relief and
requested an evidentiary hearing. In January 2024, the postconviction court denied
Forest’s petition without an evidentiary hearing because it determined that most of Forest’s
claims were Knaffla barred and that none had merit.
Forest appeals.
DECISION
A person convicted of a crime may seek postconviction relief by filing a petition
alleging that the conviction “violated the person’s rights under the Constitution or laws of
the United States or of the state.” Minn. Stat. § 590.01, subd. 1(1) (2022). Appellate courts
review a postconviction court’s denial of a petition for an abuse of discretion. Pearson v.
State, 891 N.W.2d 590, 596 (Minn. 2017). A postconviction court abuses its discretion if
it exercises it “in an arbitrary or capricious manner, based its ruling on an erroneous view
of the law, or made clearly erroneous factual findings.” Id. (quotation omitted).
Although Forest is self-represented, he is held to the same standard as an attorney.
State v. Gillespie, 710 N.W.2d 289, 299 (Minn. App. 2006), rev. denied (Minn. May 16,
2006). Forest presents three arguments on appeal: (1) his claim of ineffective assistance
of trial counsel was not Knaffla barred; (2) his appellate counsel provided ineffective
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assistance of counsel; and (3) the postconviction court abused its discretion by summarily
denying his petition without an evidentiary hearing. We address each issue in turn.
I. Forest’s ineffective-assistance-of-trial-counsel claim is Knaffla barred.
Forest argues that the postconviction court abused its discretion when it determined
that his ineffective-assistance-of-trial-counsel claim is Knaffla barred and that no exception
applies because the “precise claims” he raises now—that his counsel did not interview
witnesses, pursue leads, and consider additional theories of defense—is based on evidence
that was withheld from him and therefore could not have been raised previously.
Arguments are Knaffla barred if they could have been raised in a direct appeal from
conviction. State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976); see also Minn. Stat.
§ 590.01, subd. 1 (2022) (“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 sentence.”). There are two exceptions to this rule: (1) “if the claim’s novelty
was so great that its legal basis was not reasonably available when direct appeal was taken”
and (2) in the interests of justice, “when fairness so requires and when the petitioner did
not deliberately and inexcusably fail to raise the issue on direct appeal.” Lynch v. State,
749 N.W.2d 318, 321 (Minn. 2008) (quoting State v. Leake, 737 N.W.2d 531, 535 (Minn.
2007)).
The postconviction court did not abuse its discretion when it determined that
Forest’s claim of ineffective assistance of trial counsel was Knaffla barred and that neither
exception applied because Forest’s arguments could have been raised in his direct appeal
or first postconviction petition. Forest does not dispute that his claims are Knaffla barred
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but asserts that both exceptions apply. We disagree. The first exception to Knaffla does
not apply because Forest’s arguments do not arise from a novel legal basis that was not
available at the time of his previous appeal; indeed, Forest already made similar assertions
of error by his trial counsel in his first postconviction petition and on direct appeal. The
second exception also does not apply because Forest did not prove that he could not have
made these arguments previously. To support his argument, Forest asserts that he did not
obtain his trial counsel’s files until now, but he neither asserts nor demonstrates that it was
not possible for him to obtain those files prior to his first postconviction petition and direct
appeal. Therefore, the postconviction court did not abuse its discretion when it dismissed
this claim as Knaffla barred.
II. Forest’s ineffective-assistance-of-appellate-counsel claim fails on the merits.
Forest next argues that the postconviction court abused its discretion by determining
that his ineffective-assistance-of-appellate- counsel claim failed on the merits because
appellate counsel did not investigate and present additional defenses and did not properly
review the evidence Forest presented, including interviewing witnesses. The
postconviction court determined that Forest’s claim could not prevail because he provided
no evidence to support it.
Criminal defendants subject to prosecution have the right to the assistance of
counsel. U.S. Const. amend. VI; Minn. Const. art. I, § 6. We review claims of ineffective
assistance of counsel de novo. Taylor v. State, 887 N.W.2d 821, 823 (Minn. 2016). To
prove a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged
Strickland test by demonstrating that (1) counsel’s representation “fell below an objective
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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.” Zumberge
v. State, 937 N.W.2d 406, 413 (Minn. 2019) (quoting Strickland v. Washington, 466 U.S.
668, 688, 694 (1984)). If a claim does not satisfy one of the Strickland prongs, the claim
fails and the analysis ends. Swaney v. State, 882 N.W.2d 207, 217 (Minn. 2016).
There is a “strong presumption that counsel’s performance was reasonable.”
Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Counsel’s representation is objectively
reasonable when counsel exercises the “customary skills and diligence that a reasonably
competent attorney would perform under the circumstances.” State v. Doppler,
590 N.W.2d 627, 633 (Minn. 1999) (quotation omitted). Appellate counsel may
legitimately conclude that a claim will not prevail, and thus, counsel need not raise all
possible claims on appeal. Leake , 737 N.W.2d at 536. Therefore, a claim of ineffective
assistance of ap pellate counsel will fail if “appellate counsel could have legitimately
concluded that the claim would not prevail.” Id.
Forest’s ineffective-assistance-of-appellate- counsel claim is not Knaffla barred
because it could not have been brought prior to his second postconviction petition, id., but
his claim fails on its merits because he has not demonstrated that his counsel’s
representation fell below an objective standard of reasonableness. Forest asserts that his
appellate counsel should have investigated other theories of defense, including
manslaughter and unintentional murder, and questioned his trial counsel about this strategy.
But these theories are the same arguments he raised to this court in his first postconviction
petition, albeit against his trial counsel, and we have already concluded that these
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arguments do not demonstrate ineffective assistance of counsel because “the evidence of
Forest’s intent to kill the decedent is overwhelming” and, therefore, he cannot demonstrate
prejudice. Forest, 2022 WL 1446924, at *3. Additionally, our previous opinion
demonstrates that appellate counsel reviewed the record and presented multiple theories
for the ineffective-assistance-of-trial-counsel claim, and though there may have been
others, appellate counsel does not have to raise every possible theory on appeal. Because
his appellate counsel’s representation did not fall below an objective standard of
reasonableness, Forest cannot prove that he received ineffective assistance of counsel and
the postconviction court did not abuse its discretion by dismissing his claim.
III. The postconviction court did not abuse its discretion by denying Forest’s
petition without an evidentiary hearing.
Forest argues that the postconviction court abused its discretion by denying his
request for an evidentiary hearing because a hearing would have permitted him to question
his attorneys for evidence to support his claims.
“We review the ultimate decision by the postconviction court to grant or deny an
evidentiary hearing for an abuse of discretion.” Caldwell v. State, 853 N.W.2d 766, 770
(Minn. 2014). A request for a hearing on a postconviction petition may be denied when
the petition, files, and record from the proceeding “conclusively show that the petitioner is
entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2022); accord Lynch, 749 N.W.2d at
320. When determining whether the petitioner is entitled to an evidentiary hearing, the
postconviction court is required to consider the facts alleged in the petition as true and
construe them in the light most favorable to the petitioner. Andersen v. State, 913 N.W.2d
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417, 422-23 (Minn. 2018). “[T]he burden is on a petitioner to show facts entitling the
petitioner to relief.” Allwine v. State, 994 N.W.2d 528, 541 (Minn. 2023).
The record supports the postconviction court’s denial of Forest’s request for a
hearing. Even when we review the facts alleged in Forest’s petition as true and in the light
most favorable to relief, Forest did not meet his burden to show that his claims against his
trial counsel were not Knaffla barred or that his appellate counsel provided ineffective
assistance. Therefore, the postconviction court did not abuse its discretion by denying an
evidentiary hearing on these claims.
Affirmed.