                               STATE OF MINNESOTA

                                 IN SUPREME COURT

                                        A15-1468

Mahnomen County                                                            Anderson, J.
                                                                Took no part, Chutich, J.
Thomas Lee Fairbanks,

             Appellant,

vs.                                                                 Filed: July 20, 2016
                                                              Office of Appellate Courts
State of Minnesota,

             Respondent.

                              ________________________

Thomas Lee Fairbanks, Torrington, Wyoming, pro se.

Lori Swanson, Attorney General, John D. Gross, Assistant Attorney General, Saint Paul,
Minnesota; and

Darlene Rivera Spalla, Mahnomen County Attorney, Mahnomen, Minnesota, for
respondent.
                         ________________________

                                    SYLLABUS

      1.     The postconviction court did not abuse its discretion when it concluded that

appellant’s causation claim was Knaffla-barred.

      2.     Appellant’s remaining claims are unsupported by substantive facts or

argument and are therefore forfeited.

      Affirmed.

      Considered and decided by the court without oral argument.

                                           1
                                      OPINION

ANDERSON, Justice.

      On September 1, 2011, a Polk County jury found appellant Thomas Lee Fairbanks

guilty of first-degree murder of a peace officer, Minn. Stat. § 609.185(a)(4) (2014), and

nine other felonies associated with the shooting of Mahnomen County Sheriff’s Deputy

Christopher Dewey. Fairbanks appealed directly to our court, and we affirmed his first-

degree murder conviction and all but one of his other felony convictions.         State v.

Fairbanks, 842 N.W.2d 297 (Minn. 2014). On February 17, 2015, Fairbanks filed a

pro se petition for postconviction relief, which the postconviction court denied without

holding an evidentiary hearing. Fairbanks now appeals the postconviction court’s ruling.

                                                I.

      The facts relevant to this appeal span the night of February 17 and the early

morning hours of February 18, 2009, when the shooting occurred.1 During a night of

drinking with his associate, Daniel Vernier, Fairbanks fired a pistol several times, both

inside and outside of his mobile home trailer. Police came to Fairbanks’s mobile home

twice: once to investigate a report of gunfire and once to investigate a report of drunk

driving and/or a crash involving Fairbanks’s vehicle. On both occasions, Fairbanks and

Vernier hid in the mobile home to avoid the officers, and after the officers departed, the

two continued to drink into the early morning hours.



1
       The facts surrounding Fairbanks’s murder of Deputy Dewey are set out in detail in
our opinion in his direct appeal. See Fairbanks, 842 N.W.2d at 300-01.

                                            2
      After the officers left for the second time, Fairbanks and Vernier ran out of

alcohol. Fairbanks, accompanied by Vernier, decided to ask a neighbor for either alcohol

or a ride. As Fairbanks was talking to the neighbor, Deputy Dewey pulled up in his

squad car. Deputy Dewey then left the vehicle and began to walk up the driveway

toward Vernier and Fairbanks. Vernier walked toward Deputy Dewey; Deputy Dewey

ordered Vernier to put his hands in the air. Fairbanks and the neighbor testified that

Vernier took a swing at Deputy Dewey, who ducked past Vernier. Fairbanks testified

that Deputy Dewey reached for his sidearm while ducking past Vernier, at which point

Fairbanks shot Deputy Dewey in the head and abdomen. After a lengthy standoff with

police, Vernier and then Fairbanks surrendered.

      Deputy Dewey was airlifted to a hospital in Fargo, where he underwent

emergency brain and abdominal surgery. During the surgery, the neurosurgeon removed

at least two-thirds of the right side of Deputy Dewey’s skull. Although Deputy Dewey

survived the surgery and the immediate aftermath of the shooting, his condition

deteriorated over the ensuing months. In January 2010 a rehabilitative doctor determined

that Deputy Dewey was in a “persistent vegetative state.”

      In July 2010 Deputy Dewey was diagnosed with pneumothorax.2 According to

Deputy Dewey’s doctor, the treatment for pneumothorax would require hospitalization, a

chest tube, and massive antibiotics.    In consultation with family members, Deputy


2
        Pneumothorax is a condition in which an air pocket forms inside the chest cavity
as a result of a punctured lung. Pneumothorax can place pressure on the lungs and reduce
the ability of the lungs to oxygenate the blood.

                                            3
Dewey’s wife decided not to pursue treatment for the pneumothorax and instead placed

Deputy Dewey in hospice care. Deputy Dewey died approximately 18 months after the

shooting.

       The medical examiner concluded that Deputy Dewey’s death was a homicide and

was caused by complications from the gunshot wounds that Fairbanks inflicted on

Deputy Dewey. After a jury trial, Fairbanks was convicted of first-degree murder and

nine other felonies. Fairbanks appealed directly to our court, arguing, among other

things, that his murder conviction violated the common law year-and-a-day rule.3 We

upheld Fairbanks’s first-degree-murder conviction and all but one of his other felony

convictions, concluding that “the year-and-a-day rule does not apply to the Minnesota

law of homicide.” Fairbanks, 842 N.W.2d at 305, 308.

       On February 17, 2015, Fairbanks filed a pro se petition for postconviction relief

wherein he argued, in addition to asserting other claims, that he did not actually cause the

death of Deputy Dewey. The postconviction court denied Fairbanks’s petition without an

evidentiary hearing, finding that his causation claim and the majority of his other claims

were barred by Minn. Stat. § 590.01, subd. 1 (2014), and our decision in State v. Knaffla,

309 Minn. 246, 243 N.W.2d 737 (1976). Fairbanks’s remaining claims were deemed

meritless. This appeal followed.



3
       “The year-and-a-day rule is an ancient English common law doctrine providing
that a defendant may not be convicted of murder unless the victim dies from the
defendant’s act within a year and a day of the act.” Fairbanks, 842 N.W.2d at 304 (citing
Rogers v. Tennessee, 532 U.S. 451, 462-67 (2001)).

                                             4
                                              II.

         “A petition for postconviction relief is a collateral attack on a conviction that

carries a presumption of regularity.” Hummel v. State, 617 N.W.2d 561, 563 (Minn.

2000).     We review the denial of a postconviction petition for an abuse of the

postconviction court’s discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999).

“We review findings of fact for clear error and questions of law de novo.” Erickson v.

State, 842 N.W.2d 314, 318 (Minn. 2014). A postconviction petitioner is entitled to a

hearing “[u]nless the petition and the files and records of the proceeding conclusively

show that the petitioner is entitled to no relief . . . .” Minn. Stat. § 590.04, subd. 1 (2014);

Zenanko v. State, 587 N.W.2d 642, 644 (Minn. 1998).              A hearing is not required,

however, when the petition is procedurally barred by the Knaffla rule. See Zenanko, 587

N.W.2d at 644 (stating that claims raised on direct appeal or known but not raised on

direct appeal “will not be considered . . . for postconviction relief”).

         Fairbanks’s petition focuses almost exclusively on his argument that he did not

cause the death of Deputy Dewey, and thus his first-degree-murder conviction must be

overturned.4 Specifically, Fairbanks argues that the pneumothorax in July 2010, the

decision by Deputy Dewey’s family to refuse further medical treatment, or a combination

of the two caused Deputy Dewey’s death. The postconviction court concluded that

Fairbanks’s claim was barred by Minn. Stat. § 590.01, subd. 1, which states: “A petition

4
       Fairbanks also argues that the district court prevented his counsel from arguing the
issue of causation at the trial. The record does not support this assertion. To the
contrary, the district court permitted Fairbanks’s counsel to generate a record regarding
the causation issue.

                                               5
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.” The

postconviction court also found that Fairbanks’s claims were barred by our decision in

Knaffla. See Sontoya v. State, 829 N.W.2d 602, 604 (Minn. 2013) (stating that “[c]laims

that were raised on direct appeal, or were known or should have been known but were not

raised on direct appeal, are” Knaffla-barred).

       Here, the causation issue was both known and actively litigated before the district

court and, consequently, it was known or should have been known on direct appeal. See

Ashby v. State, 752 N.W.2d 76, 79 (Minn. 2008) (concluding that a petitioner knew or

should have known about claims concerning “conduct occurring either before or during

trial”). Fairbanks’s counsel objected to the State’s proposed causation instruction during

the pretrial phase and initially argued that Deputy Dewey’s family committed

“euthanasia” by refusing further medical care.

       Although arguments about causation were not made at trial, their absence was a

result of an agreement between the prosecution and the defense. Fairbanks’s counsel

agreed not to argue that Deputy Dewey’s family committed euthanasia and, in return, the

prosecutor agreed not to question the State’s medical witnesses concerning the definition

of euthanasia and whether euthanasia caused the death of Deputy Dewey.               This

agreement appears to have been the product of a calculated decision on the part of

Fairbanks’s counsel to acknowledge that Fairbanks shot Deputy Dewey, show that

Fairbanks was taking responsibility for his actions, and then present the defense of

intoxication. Fairbanks explicitly agreed to this strategy on the record before the trial

                                             6
began and specifically acknowledged that he was aware of the issues that had been

litigated during the pretrial phase. On direct appeal, Fairbanks did not raise the causation

issue, but he did raise a related claim by arguing that the common law year-and-a-day

rule precluded his murder conviction.

       The litigation in the district court and on appeal demonstrates that Fairbanks and

his attorney were aware of the causation issue and chose not to raise it, or chose to

address it obliquely, for strategic reasons. Consequently, Fairbanks’s causation claim is

clearly barred by Minn. Stat. § 590.01, subd. 1, and Knaffla because, although Fairbanks

could have raised the claim on direct appeal, he failed to do so. See Zenanko, 587

N.W.2d at 644 (“Once a defendant has had a direct appeal, ‘all matters raised therein, and

all claims known but not raised, will not be considered upon a subsequent petition for

postconviction relief.’ ” (quoting Knaffla, 309 Minn. at 252, 243 N.W.2d at 741)).

       “There are two exceptions to the Knaffla rule: (1) if a novel legal issue is

presented, or (2) if the interests of justice require review.” Taylor v. State, 691 N.W.2d

78, 79 (Minn. 2005). We have not yet decided whether the two exceptions to Knaffla

apply to the procedural bar in section 590.01, subdivision 1. See Hooper v. State, 838

N.W.2d 775, 787 n.2 (Minn. 2013) (collecting cases that have declined to decide whether

the exceptions to the Knaffla bar survived the passage of Minn. Stat. § 590.01, subd. 1,

either because the claims were clearly barred under Knaffla or because the State did not

argue that the exceptions were superseded by Minn. Stat. § 590.01, subd. 1).

       It is unnecessary to resolve this issue here because Fairbanks does not argue that

either of the exceptions to the Knaffla rule apply here. As a result, Fairbanks has

                                             7
forfeited any argument that the exceptions to the Knaffla rule permit his causation claim

to proceed. See Greer v. State, 836 N.W.2d 520, 522 n.3 (Minn. 2013) (holding that an

argument regarding the newly-discovered-evidence exception to the statute of limitations

had been forfeited because the petitioner did not raise it in his brief).           Because

Fairbanks’s causation claim is barred by section 590.01, subdivision 1, and Knaffla, the

postconviction court did not abuse its discretion when it denied Fairbanks’s claim without

holding a hearing. See Zenanko, 587 N.W.2d at 644.

                                                 III.

       Fairbanks raises a number of other claims at the end of his petition and at the end

of his brief to our court.5 None of these claims are supported by any facts, citations to the



5
       Fairbanks’s brief to this court states:

       That petitioner also alleges such other grounds relating to the Constitution
       and laws of the United States or the State of Minnesota which appear from
       the records and proceedings herein, and such grounds that the Court may
       decide to have litigated even though not specifically raised by the
       petitioner, such as his right not to have evidence illegally seized; his right
       not to have statements obtained from him in violation of his right to counsel
       or his right not to incriminate himself or other legal right; his right to be
       charged by proper complaint, information or indictment; his right to be
       confronted by his accusers; his right not to be placed twice in jeopardy; his
       right to due process of law including discovery; his right to disclosure of
       favorable evidence; his right to counsel and to the effective aid and
       assistance of counsel; his right not to be induced to enter a plea of guilty by
       fraud, coercion, or misrepresentation; his right not to be induced to enter a
       plea of guilty by misunderstanding or lack of knowledge of his right to
       exclude illegally obtained evidence or to preliminary proceedings; his right
       to have his plea of guilty properly accepted by the trial court, and his right
       to be sentenced by a court of competent jurisdiction and to a fair sentence.

                                                        (Footnote continued on next page.)
                                                  8
record, or substantive argument. We note that many of these claims are not obviously

applicable to Fairbanks’s case,6 while a number of other claims appear to be barred by

section 590.01, subdivision 1, or Knaffla. But Fairbanks’s failure to provide us with any

additional factual information or argumentation makes it impossible for us to fully

analyze these claims. Because a “petitioner’s allegations must [present] ‘more than

argumentative assertions without factual support,’ ” Hodgson v. State, 540 N.W.2d 515,

517 (Minn. 1995) (quoting Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564

(1971)), we decline to consider Fairbanks’s additional claims.           Therefore, the

postconviction court did not abuse its discretion when it denied Fairbanks’s petition

without a 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.




(Footnote continued from previous page.)
Fairbanks provides no further facts, argument, or analysis to support any of these
claims, apparently relying on us to examine the record independently.
6
       For instance, Fairbanks makes several claims regarding the entry of a guilty plea,
but Fairbanks never entered or attempted to enter a plea of guilty in district court.

                                              9
