                                    STATE OF MINNESOTA

                                     IN SUPREME COURT

                                           A15-1102

Clay County                                                                    Hudson, J.
                                                                 Took no part, Chutich, J.

Tracy Alan Zornes,

                       Appellant,

vs.                                                                  Filed: June 15, 2016
                                                               Office of Appellate Courts
State of Minnesota,

                       Respondent.

                                ________________________

Tracy Alan Zornes, Stillwater, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Brian Melton, Clay County Attorney, Moorhead, Minnesota, for respondent.
                           ________________________

                                          SYLLABUS

       1.      With respect to the claims that are procedurally barred, the postconviction

court did not abuse its discretion by denying appellant’s petition without granting an

evidentiary hearing.

       2.      Even assuming that one of appellant’s claims for ineffective assistance of

trial counsel is not Knaffla-barred, the files and records of the proceedings conclusively

show that he is not entitled to relief.



                                              1
       3.     The files and records of the proceedings conclusively show that appellant

did not receive ineffective assistance of appellate counsel and the postconviction court

did not abuse its discretion in denying the petition without an evidentiary hearing.

       Affirmed.

       Considered and decided by the court without oral argument.

                                      OPINION

HUDSON, Justice.

       In November 2011 appellant Tracy Alan Zornes was convicted in Clay County of

two counts of first-degree premeditated murder for the killing of Megan Londo and John

Cadotte. Zornes was also convicted of first-degree arson of a dwelling and theft of a

motor vehicle.     After we affirmed Zornes’ convictions on direct appeal, he sought

postconviction relief. His postconviction petition alleged numerous grounds for relief,

including various claims of trial error, ineffective assistance of trial counsel, and

ineffective assistance of appellate counsel. The postconviction court denied Zornes’

petition without granting an evidentiary hearing, concluding that the claims of trial error

and ineffective assistance of trial counsel were procedurally barred, and that the

ineffective-appellate-counsel claims were meritless.      Because we conclude that the

postconviction court did not abuse its discretion in denying Zornes’ petition without

granting an evidentiary hearing, we affirm.




                                              2
                                            I.

       Following an early-morning apartment fire in Moorhead in February 2010, the

bodies of Megan Londo and John Cadotte were discovered by emergency personnel.

Londo and Cadotte had both been beaten and stabbed, and had died before the apartment

was set ablaze. An investigation led law enforcement to suspect that Tracy Zornes

committed the murders, and roughly 2 weeks later police found Zornes hiding in a remote

makeshift campsite in the woods.      When Zornes was arrested, officers recovered a

pocketknife from his person and several more of his possessions, including a hammer,

box cutter, screwdriver, and scissors, from the campsite.

       Zornes was indicted for two counts of first-degree premeditated murder, Minn.

Stat. § 609.185, subd. (a)(1) (2014); two counts of second-degree intentional murder,

Minn. Stat. § 609.19, subd. (1)(1) (2014); first-degree arson of a dwelling, Minn. Stat.

§ 609. 561, subd. 1 (2014); and theft of a motor vehicle, Minn. Stat. § 609.52, subd. 2(17)

(2014). 1

       Zornes’ counsel made several pre-trial motions in limine, including a motion to

exclude the items seized from his person and his campsite on the grounds that the items

were irrelevant and substantially more prejudicial than probative. See Minn. R. Evid.

401-03. In support of the motion to exclude, Zornes’ counsel argued that the State had

offered no evidence that the items were in fact linked to the crimes with which Zornes

was charged. That motion was denied.

1
      The arson count was related to the fire set in the apartment on the morning of the
murders, and the theft charge was related to the theft of Cadotte’s car that same morning.

                                            3
       After trial, Zornes was found guilty on all counts except for the second-degree

murder charges. The district court sentenced him to concurrent terms of life in prison

without the possibility of release for the murders, a consecutive term of 45 months in

prison for the arson, and a concurrent term of 30 months for the theft conviction. The

court also ordered him to pay restitution.

       On direct appeal, Zornes argued for reversal of his convictions on the grounds that

(1) his right to a public trial was violated; (2) admission of a statement he made to police

violated his Fourth Amendment rights; (3) the district court abused its discretion in

admitting into evidence the items (including the pocketknife) found on his person and at

his campsite when he was arrested; and (4) the district court abused its discretion when it

ruled the state could impeach him with evidence of his prior felony convictions if he

chose to testify. State v. Zornes, 831 N.W.2d 609, 617-18 (Minn. 2013). We rejected

those arguments and affirmed his convictions. Id. at 612.

       Zornes subsequently filed a petition for postconviction relief, arguing that

numerous trial errors denied him a fair trial. Zornes also alleged that both his trial

counsel and his appellate counsel provided ineffective assistance by failing to effectively

argue or raise the issues identified in his petition. The postconviction court denied the

petition without granting an evidentiary hearing, concluding that the trial issues and the

ineffective-assistance-of-trial-counsel claims were procedurally barred, and that Zornes’

ineffective-assistance-of-appellate-counsel   claims   constituted   mere    argumentative

assertions without factual support.



                                              4
                                             II.

       On appeal, Zornes argues that the postconviction court erred and that his

postconviction claims entitle him to either an evidentiary hearing to expand the record in

support of his claims or a new trial.

       We review the denial of a petition for postconviction relief, including the

petitioner’s request for an evidentiary hearing, for an abuse of discretion. Colbert v.

State, 870 N.W.2d 616, 622 (Minn. 2015). In doing so, we review legal issues de novo

and the postconviction court’s factual findings for clear error. Id.

       A postconviction court may only deny a petition without holding an evidentiary

hearing if the petition, the files of the proceedings, and the trial court record conclusively

show the petitioner is not entitled to relief.      Minn. Stat. § 590.04, subd. 1 (2014);

Schleicher v. State, 718 N.W.2d 440, 450 (Minn. 2006). In making this determination,

the court must consider the facts alleged in the light most favorable to the petitioner.

Matakis v. State, 862 N.W.2d 33, 37 (Minn. 2015). However, a petitioner’s allegations

must constitute more than argumentative assertions without factual support. Id.

                                             III.

       We turn first to Zornes’ claims of trial error. Zornes argues that seven trial errors

denied him a fair trial, and that his convictions must therefore be reversed. Specifically,

Zornes argues that the prosecution: (1) improperly argued that he had the “means” to

commit the murders although his pocketknife was incapable of inflicting some of the

victims’ wounds; (2) submitted a “false and misleading” witness list to the court;

(3) entered photos and testimony into evidence without foundation; (4) committed

                                              5
misconduct in its questioning of a witness.      Zornes also argues that the prosecutor

committed misconduct during closing argument by (5) improperly referring to his choice

not to testify; (6) making other prejudicial statements; and (7) using an “inflammatory”

computer-based slide presentation.

        Under the Knaffla rule, when a postconviction petition follows a direct appeal, all

claims raised in the direct appeal and all claims that were known or should have been

known at the time of the direct appeal are procedurally barred. Hooper v. State, 838

N.W.2d 775, 787 (Minn. 2013); see also State v. Knaffla, 309 Minn. 246, 252, 243

N.W.2d 737, 741 (1976). 2

        Because Zornes’ claims of trial error are all based on events that occurred during

his trial, they were all known or should have been known at the time of the direct appeal.

Zornes makes no specific argument that either of the two exceptions to the Knaffla rule

applies. 3   Accordingly, the postconviction court did not abuse its discretion in


2
       In 2005, the postconviction statute was amended to include a procedural bar. The
statute as amended states that “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.” Minn. Stat. § 590.01, subd. 1 (2014).
3
       We have previously recognized two exceptions to the Knaffla rule: “(1) an issue so
novel that its legal basis was not reasonably available at the time of the direct appeal, or
(2) in the interest of justice—when fairness so requires and the petitioner did not
deliberately and inexcusably fail to raise the issue on direct appeal.” Quick v. State, 757
N.W.2d 278, 280 (Minn. 2008). We have not resolved the question of whether these
exceptions remain applicable to postconviction petitions following the 2005 legislative
amendments to the postconviction statute, see, e.g., Colbert, 870 N.W.2d at 626 n.9, and
we need not do so in this case.
       Zornes argues that his postconviction claims are different from those raised on
direct appeal, and that we should therefore substantively review them. However, the
                                                        (Footnote continued on next page.)
                                             6
determining that Zornes’ claims of trial error are procedurally barred and denying them

without granting a hearing on those issues.

                                              IV.

       Zornes also argues that the postconviction court erred in denying his petition with

respect to eight claims of ineffective assistance of trial counsel. He contends that his

counsel’s performance with regard to the seven trial issues discussed in Part III, supra,

was ineffective. He also argues that his counsel was ineffective in failing to obtain

exclusion of the pocketknife entered into evidence at trial.

       The Knaffla rule applies to claims of ineffective assistance of counsel, and thus

Zornes’ claims are barred if they are based on the trial record and were known or should

have been known to him at the time of his direct appeal. Reed v. State, 793 N.W.2d 725,

732 (Minn. 2010). However, an ineffective-assistance-of-trial-counsel claim brought in a

postconviction proceeding following direct appeal is not Knaffla-barred if review of the

claim requires consideration of facts outside those in the trial court record. Sanchez-Diaz

v. State, 758 N.W.2d 843, 847 (Minn. 2008).

                                              A.

       First, Zornes’ claims that his trial counsel was ineffective with regard to the issues

discussed in Part III, supra, are based on events that occurred on the record at his trial.

Zornes identifies no particular reason why he could not have raised these claims on direct

(Footnote continued from previous page.)
mere fact that a claim was not brought on direct appeal does not prevent operation of the
Knaffla rule if that claim was known or should have been known at the time of direct
appeal. Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).

                                              7
appeal or why facts other than those contained in the records and files of the proceedings

are needed to review his counsel’s performance. These ineffective-assistance issues can

be reviewed on the basis of the trial court record alone, and are therefore Knaffla-barred.

See Schleicher, 718 N.W.2d at 450.

                                             B.

       Zornes also argues that his trial counsel was ineffective in failing to prevent the

pocketknife, recovered from Zornes’ person at the time of his arrest, from being entered

into evidence at trial. He contends that this issue is not Knaffla-barred because facts

outside the trial court record are necessary to review it. In support of this contention, he

submitted as an exhibit to his postconviction petition the victims’ autopsy reports, which

were disclosed to the defense but not entered into evidence and are thus not part of the

trial court record. Zornes contends that the reports show that the blade of his pocketknife

was incapable of inflicting several of the victims’ wounds. He asserts that, though his

attorney moved to exclude the knife, the attorney failed to recognize and make the

wound-incompatibility argument, which Zornes characterizes as the most compelling

argument for the pocketknife’s exclusion.         He argues that an evidentiary hearing is

needed to determine whether his counsel adequately reviewed the autopsy reports and to

examine counsel’s reasons for choosing not to present expert testimony regarding the

knife’s incompatibility with those wounds.

       We conclude that, even if this issue is not Knaffla-barred, the postconviction court

did not abuse its discretion in denying the claim without a hearing, because the



                                             8
postconviction files and the trial court record conclusively show that Zornes is not

entitled to relief on this basis.

       To receive an evidentiary hearing on an ineffective-assistance-of-counsel claim, a

petitioner must allege facts that would, if proven, entitle him to relief under the two-

pronged Strickland test. Leake v. State, 737 N.W.2d 531, 536 (Minn. 2007) (citing

Strickland v. Washington, 466 U.S. 668, 690-94 (1984)). Thus, the facts alleged must

show, if proven, that counsel’s representation (1) fell below an objective standard of

reasonableness and (2) that but for counsel’s errors, there was a reasonable probability

the result would have been different. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013).

We review such claims with a strong presumption that counsel’s performance was

reasonable. Id.

       Zornes cannot overcome the “strong presumption” that his trial counsel provided

reasonable assistance. Id. Counsel filed a motion to exclude the pocketknife and other

tools recovered from Zornes’ campsite, arguing specifically that “[t]he State has failed to

provide any witnesses or scientific testing which provide a connection between the items”

and the crimes. Zornes’ attorney argued that, because the State could prove no such

connection, the items should have been excluded as irrelevant or, in the alternative, as

substantially more prejudicial than probative.

       It is true that counsel did not make the argument that the knife was incapable of

inflicting the specific wounds Zornes points to in the autopsy reports. However, counsel

could reasonably have concluded that this argument should not be pursued because,

according to the same autopsy reports, the victims did have wounds (such as those on

                                             9
their ears) that could have been produced by the knife in question. 4 Moreover, Zornes’

attorney did not stop at seeking exclusion of the evidence. On cross-examination of the

medical examiner, the attorney established that the examiner could not say that the

victims’ wounds were caused by the specific tools found at the campsite.            Zornes’

attorney also emphasized in closing argument that none of the items found at the

campsite, including the pocketknife, “yielded anything that would connect those items to

the crimes.” On these facts, Zornes cannot overcome the strong presumption that his trial

counsel’s performance was reasonable. As this determination is conclusive, there is no

reason to address the second prong of the ineffective-assistance claim. Andersen, 830

N.W.2d at 10.

                                             V.

       Finally, Zornes contends that the postconviction court erred in denying his claims

of ineffective assistance of appellate counsel. Ineffective assistance of appellate counsel

is properly raised in a first postconviction petition, because the petitioner could not have

known of such a claim at the time of direct appeal. See Wright v. State, 765 N.W.2d 85,

90-91 (Minn. 2009). Like a claim for ineffective assistance of trial counsel, to prove

ineffective assistance of appellate counsel a petitioner must prove both prongs of the

Strickland test. Sessions v. State, 666 N.W.2d 718, 722 (Minn. 2003).



4
       See State v. Daniels, 361 N.W.2d 819, 827 (Minn. 1985) (affirming the admission
of a gun in a murder case despite the fact it could not have fired the fatal shots because it
was sufficiently connected to the defendant and “could well have been” the other gun
used in the crime).

                                             10
       An attorney’s representation meets the objective standard of reasonableness if the

attorney exercises the skills and diligence that a reasonably competent lawyer would

exercise under the circumstances. Leake, 737 N.W.2d at 536. Appellate counsel has no

duty to raise all possible issues, and may choose to present only the most meritorious

claims to the court. Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012). Appellate

counsel does not act unreasonably by not raising issues that he or she could have

legitimately concluded would not prevail. Wright, 765 N.W.2d at 91. We employ a

strong presumption that appellate counsel’s judgment about which issues to raise falls

within the wide range of reasonable professional performance. Bobo, 820 N.W.2d at 516.

“[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” to prevail on the appellate counsel

claim. Wright, 765 N.W.2d at 91 (quoting Fields v. State, 733 N.W.2d 465, 468 (Minn.

2007)).

                                             A.

       Zornes first argues that his appellate attorney was ineffective by failing to raise the

ineffective-assistance-of-trial-counsel claim premised on exclusion of the pocketknife,

which we discussed and deemed meritless in Part IV(B), supra.              Zornes’ appellate

attorney was not ineffective by declining to raise a meritless issue. See Wright, 765

N.W.2d at 91. Therefore, the postconviction court did not abuse its discretion by denying

his petition without granting a hearing on that claim.



                                             11
                                             B.

       Zornes next argues that his appellate attorney was ineffective by failing to

challenge the prosecution’s use of an allegedly inflammatory computer-based slide

presentation during closing argument.

       It is well-established that parties may use visual aids in closing arguments. See

Brabeck v. Chicago & N.W. Ry. Co., 264 Minn. 160, 167-68, 117 N.W.2d 921, 926-27

(1962).    However, Zornes makes allegations that, if factually supported, would

potentially require an evidentiary hearing to be held: that the presentation “contain[ed]

information not admitted into evidence” and that neither defense counsel nor the court

was provided a copy of the presentation prior to its use. See id. at 168, 117 N.W.2d at

926-27 (holding that the use of visual aids in closing argument is proper so long as they

contain only facts supported by the evidence and they are submitted to the court and

opposing counsel in chambers beforehand). However, Zornes does not explain further

which facts were included that allegedly lacked evidentiary support. Accordingly, he has

not alleged facts that, if proven, would entitle him to relief. Matakis, 862 N.W.2d at 37.

Zornes’ argument that his attorney was ineffective by failing to raise this issue constitutes

an argumentative assertion without factual support, and he is not entitled to an

evidentiary hearing on the issue.

                                             C.

       Finally, Zornes argues that his appellate counsel was ineffective by failing to raise

the issue of prosecutorial misconduct based on the prosecutor’s purported references to



                                             12
Zornes’ choice not to testify. 5   Zornes characterizes this as an “arguably stronger”

argument than the issues his attorney raised on appeal. As Zornes makes no specific

argument that an evidentiary hearing is necessary to review this claim, we will review the

claim only to determine whether Zornes is entitled to relief on the basis of the trial court

record.

       Zornes’ argument on this issue fails because he cannot establish either prong of

Strickland, though we need only discuss the first prong, as that prong is determinative.

See State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).

       Though Zornes cites many instances in the closing argument transcript in which

the prosecutor refers to Zornes’ “words” or “explanations,” the large majority of these

references are not to Zornes’ decision not to testify, but rather to statements made by

Zornes following the crime, which were entered into evidence through witness testimony.

Only two of the comments that Zornes alleges constituted misconduct do not refer

explicitly to witness testimony: (1) “it would be nice to know a motive for these brutal




5
       Zornes also contends that this misconduct was compounded by the district court’s
no-adverse-inference instruction, and that he was not informed of his right to reject that
instruction. However, that claim is clearly contradicted by the record. Zornes stated on
the record that he had “discussed the issue of whether or not [he] wish[ed] to testify or
not testify with [his] attorneys.” Further, in Zornes’ presence, his attorney stated to the
court that Zornes “will be making a specific request for use of” the no-adverse-inference
instruction. Finally, when the court asked Zornes directly if he wanted the no-adverse-
inference instruction given, Zornes consented, and specifically told the court to read that
instruction only once, along with the rest of the instructions, prior to the jury’s
deliberations.


                                            13
homicides,” and (2) “[b]ut some things can’t be explained. He can’t explain that smoke

detector.” 6

       Indirect references to a defendant’s choice not to testify constitute misconduct if

they “(1) manifest the prosecutor’s intention to call attention to the defendant’s failure to

testify, or (2) are such that the jury would naturally have understood them as a comment

on the defendant’s failure to testify.” State v. Vue, 797 N.W.2d 5, 16 (Minn. 2011)

(quoting State v. DeRosier, 695 N.W.2d 97, 107 (Minn. 2005)).             Such misconduct

constitutes per se reversible error if the comments are extensive, the comments stress to

the jury that an inference of guilt from silence is a basis for conviction, and evidence

exists that could have supported acquittal. State v. DeRosier, 695 N.W.2d 97, 107 (Minn.

2005). If the misconduct does not constitute per se reversible error, it is reviewed for

harmless error, which requires us to determine whether it is clear beyond a reasonable

doubt that the verdict was “surely unattributable to” the misconduct. State v. Juarez, 572

N.W.2d 286, 292 (Minn. 1997).

       First, the prosecutor’s comment that “it would be nice to know a motive” was not

an indirect reference to Zornes’ choice not to testify. Unlike DeRosier, in which the

prosecutor’s comment that “it would be nice to know what happened” constituted such a

reference, the comment here was not coupled with another statement by the prosecutor

that the defendant did know, and was withholding, the very information that would be

6
       The State established at trial that at least one smoke detector was missing from the
apartment where the murders occurred and a fire was set. The remains of a smoke
detector were found by police in Cadotte’s car, which had been stolen and burned by
Zornes following the murders. Those remains were entered into evidence at trial.

                                             14
“nice to know.” See DeRosier, 695 N.W.2d at 107. Rather, the comment in this case was

delivered solely as part of the prosecutor’s argument to the jury emphasizing that motive

is not an element of the crimes with which Zornes was charged.

      Second, even assuming that the prosecutor’s brief comments that “some things

can’t be explained” and that Zornes “can’t explain” the presence of the smoke detector in

the car constituted misconduct, they were at most harmless error, and thus his appellate

attorney was not ineffective by failing to raise the issue on appeal. 7 Zornes’ attorney

objected to the comments and specifically responded to them in his own closing

argument, emphasizing that Zornes was presumed innocent and had no duty to explain

anything to prove his innocence. Also, as Zornes requested, the court instructed the jury

that it could not draw an adverse inference from Zornes’ choice not to testify, and we

presume that jurors follow the court’s instructions. State v. Gatson, 801 N.W.2d 134, 151

(Minn. 2011). In DeRosier, we concluded that even more direct and sustained comments

on the defendant’s choice not to testify than those arguably present here constituted

harmless error due to, among other factors, the minimal cumulative effect of the

comments, the court’s jury instructions, and the substantial evidence of guilt.      695

N.W.2d at 107-08. All of those factors are present in this case as well. Because Zornes’

appellate attorney could have reasonably concluded that this claim would not succeed,

Zornes has not shown that his attorney’s performance was ineffective. Accordingly, the


7
       The comments were not per se reversible error as they were not extensive,
consisting of only two sentences in a trial spanning over 1400 pages of transcript and a
closing argument that spans 26 pages. See DeRosier, 695 N.W.2d at 107.

                                           15
postconviction court did not abuse its discretion by denying his claim on this issue

without granting an evidentiary hearing.

                                             VI.

       In sum, we conclude that the postconviction court did not abuse its discretion in

determining that Zornes’ claims of trial error are procedurally barred. We also conclude

that Zornes’ claims of ineffective assistance of trial counsel are either procedurally barred

or do not otherwise entitle him to an evidentiary hearing. Finally, the files and records of

the proceedings conclusively show that Zornes did not receive ineffective assistance of

appellate counsel. Accordingly, the postconviction court did not abuse its discretion in

denying Zornes’ petition without granting an evidentiary hearing.

       Affirmed.



       CHUTICH, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                             16
