                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0462

                             Raymond Darrel Pfarr, petitioner,
                                      Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                Filed November 17, 2014
                                       Affirmed
                                     Larkin, Judge

                             Chippewa County District Court
                                 File No. 12-CR-10-160


Raymond Darrel Pfarr, Moose Lake, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David Gilbertson, Chippewa County Attorney, Montevideo, Minnesota; and

Scott A. Hersey, Special Assistant County Attorney, St. Paul, Minnesota (for respondent)


         Considered and decided by Peterson, Presiding Judge; Hudson, Judge; and Larkin,

Judge.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellant challenges the postconviction court’s summary denial of his petition for

postconviction relief, arguing that the state improperly impeached him at trial, his trial

attorneys were ineffective, and his appellate attorney was ineffective. We affirm.

                                         FACTS

       Respondent State of Minnesota charged appellant Raymond Darrel Pfarr with

third-degree criminal sexual conduct. A jury found Pfarr guilty, and the district court

sentenced him to serve 72 months in prison. Pfarr appealed to this court, arguing that the

evidence was insufficient to support his conviction, and we affirmed. State v. Pfarr, No.

A11-592, 2012 WL 1149329, at *1-2 (Minn. App. Apr. 9, 2012).

       Later, Pfarr filed a pro se petition for postconviction relief. Pfarr argued that the

district court erred by allowing the state to impeach him at trial with his custodial

statements because he was not advised of his rights under Miranda v. Arizona, 384 U.S.

436, 86 S. Ct. 1602 (1966), and the police ignored his request for counsel during the

interrogation. Pfarr also argued that his trial attorneys were ineffective. Lastly, Pfarr

argued that his appellate attorney was ineffective because he met with Pfarr for only one

hour during the appellate process and he “should have raised constitutional issues in [the]

direct appeal.”

       The postconviction court concluded that Pfarr’s “claims that the state improperly

impeached him and that his trial attorneys were ineffective are barred because they could

have been raised in his direct appeal.” The postconviction court further concluded that


                                             2
Pfarr’s “claim that his appellate attorney was ineffective failed to allege sufficient facts to

entitle him to relief on that basis.” The postconviction court therefore denied Pfarr’s

petition for postconviction relief without a hearing. This appeal follows.

                                      DECISION

       A postconviction court must hold a hearing on a petition “[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 (2012). We review summary denial of a petition

for postconviction relief for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167

(Minn. 2012). “A postconviction court abuses its discretion when its decision is based on

an erroneous view of the law or is against logic and the facts in the record.”              Id.

(quotation omitted).

                                              I.

       Pfarr argues that his claims of improper impeachment and ineffective assistance of

trial counsel “should not be procedurally barred.”

       When “direct appeal has once been taken,” all issues raised in the appeal, and all

issues “known but not raised, will not be considered [in] a subsequent petition for

postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741

(1976). “This rule applies if the defendant knew or should have known about the issue at

the time of appeal.” King v. State, 649 N.W.2d 149, 156 (Minn. 2002). There are two

exceptions to the Knaffla rule. First, a claim will not be barred if its novelty is so great

that its legal basis was not reasonably available when direct appeal was taken. Roby v.

State, 531 N.W.2d 482, 484 (Minn. 1995). Second, even if the claim’s legal basis was


                                              3
sufficiently available, substantive review may be allowed “when fairness so requires and

when the petitioner did not deliberately and inexcusably fail to raise the issue on direct

appeal.” Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (quotation omitted).

      Pfarr argues that he “could not have possibly known these newly discovered issues

at the time of direct appeal.”      But Pfarr’s claims of improper impeachment and

ineffective assistance of trial counsel are based on events that occurred at trial and that

were known or should have been known at the time of his direct appeal. See Wright v.

State, 765 N.W.2d 85, 90 (Minn. 2009) (concluding that “[p]ostconviction review of

claims other than ineffective assistance of appellate counsel and ‘new evidence’ is barred

because these claims are based on evidence in the trial record, and therefore these 11

claims were known or should have been known to Wright at the time of his direct

appeal”); White v. State, 711 N.W.2d 106, 110 (Minn. 2006) (“All of these claims can be

decided on the basis of the district court record and are therefore Knaffla-barred on this

postconviction review.”).

      For example, Pfarr alleged that one of his trial attorneys “was ineffective due to a

conflict of interest.” As support for that allegation, Pfarr submitted a letter that his

attorney sent him explaining that he had represented one of the witnesses against Pfarr at

a juvenile-detention hearing. But the letter was dated September 16, 2010, which was

before the trial date in this case. And on appeal, Pfarr concedes that he “attempted to

address this issue before trial at an omnibus hearing.” Thus, Pfarr knew about this issue

at the time of his direct appeal. See Sontoya v. State, 829 N.W.2d 602, 604 (Minn. 2013)

(“Given all of these facts, we hold that Sontoya either knew or should have known about


                                            4
trial counsel’s representation of the victim’s cousin, and his claim is therefore barred by

the Knaffla rule.”).

       Pfarr further argues that “the issues raised on Post-Conviction were in fact novel.”

But Pfarr does not present a novel legal issue, and he relies on application of

longstanding cases such as Miranda and Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052 (1984), to support his claims.

       Lastly Pfarr argues that “his extraordinary circumstances be considered” in the

“interests of fairness and justice.” “Claims decided in the interests of justice require that

the claims have substantive merit, and that the defendant did not deliberately and

inexcusably fail to raise the issue on direct appeal.” Deegan v. State, 711 N.W.2d 89, 94

(Minn. 2006) (citation and quotations omitted). The record is clear that Pfarr was aware

of the impeachment and trial counsel issues at the time of trial. Pfarr states in his brief

that after the prosecutor improperly impeached him at trial, he was left “stuttering and

stammering in front of the jury in what would have appeared to be someone attempting to

lie.” Pfarr also states that he attempted to address his trial attorney’s purported conflict of

interest “before trial at an omnibus hearing.” Pfarr knew of those issues, and he does not

establish that his failure to raise the issues on direct appeal was excusable. Therefore, we

do not consider the claims in the interests of justice. See id.

       In sum, the postconviction court did not err by concluding that Pfarr’s claims of

improper impeachment and ineffective assistance of trial counsel are procedurally barred.




                                              5
                                                II.

      Pfarr claims that his appellate counsel was ineffective and that the district court

should have held an evidentiary hearing on that claim. To receive an evidentiary hearing

on a postconviction claim of ineffective assistance of counsel, a petitioner must allege

facts that, if proved by a fair preponderance of the evidence, would satisfy the two-prong

test of Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. Bobo v. State, 820 N.W.2d

511, 516 (Minn. 2012). Under that test, “[w]hen a convicted defendant complains of the

ineffectiveness of counsel’s assistance, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Strickland, 466 U.S.

at 687-88, 104 S. Ct. at 2064. And “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.     A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694, 104 S. Ct. at 2068. An appellate court

“need not address both the performance and prejudice prongs if one is determinative.”

State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003).           And “[t]he petitioner must

overcome the presumption that counsel’s performance fell within a wide range of

reasonable representation.” Wright, 765 N.W.2d at 91 (quotation omitted).

      An evidentiary hearing on a claim of ineffective assistance of appellate counsel is

not warranted when a petitioner’s arguments “are presented solely as argumentative

assertions without factual support,” or when the petitioner “does not identify any issues

that his counsel should have pursued but did not.” Davis v. State, 784 N.W.2d 387, 391

(Minn. 2010); see also Wright, 765 N.W.2d at 91.


                                            6
       In his petition for postconviction relief, Pfarr alleged that his appellate attorney

met with him for only one hour and that his attorney “should have raised constitutional

issues in [the] direct appeal.”   Pfarr did not identify which constitutional issues he

believes his attorney should have pursued. On appeal, Pfarr argues that it was not

necessary to explicitly identify the constitutional issues because “it was obvious what

issues appellate counsel . . . should have pursued.”      But “generalized allegations of

incompetence [of counsel] are not reason for an evidentiary hearing.” Fratzke v. State,

450 N.W.2d 101, 102 (Minn. 1990). Pfarr’s reliance on what he believes is obvious is

insufficient. He had the burden to identify for the postconviction court “any issues that

his [appellate] counsel should have pursued but did not.” Davis, 784 N.W.2d at 391.

       Moreover, “[a]ppellate counsel is not required to raise all possible claims on direct

appeal, and counsel need not raise a claim if she could have legitimately concluded that it

would not prevail.” Arredondo v. State, 754 N.W.2d 566, 571 (Minn. 2008) (quotation

omitted). “And counsel has no duty to include claims which would detract from other

more meritorious issues.” Davis, 784 N.W.2d at 391 (quotation omitted). For example,

Pfarr argues that one of the “obvious” claims his appellate counsel should have raised

was his improper-impeachment claim. But suppressed statements can generally be used

for impeachment purposes. See Oregon v. Hass, 420 U.S. 714, 722, 95 S. Ct. 1215, 1221

(1975) (stating that “the shield provided by Miranda is not to be perverted to a license to

testify inconsistently, or even perjuriously, free from the risk of confrontation with prior

inconsistent utterances”).




                                             7
          In sum, Pfarr did not allege facts that would satisfy the two-prong test of

Strickland. He did not explain how his attorney’s representation fell below an objective

standard of reasonableness or how, but for his attorney’s errors, the result of the appeal

would have been different. The postconviction court therefore did not err by summarily

rejecting Pfarr’s claim that his appellate attorney was ineffective. See Davis, 784 N.W.2d

at 391.

                                              III.

          Pfarr raises additional issues that were not raised in the postconviction court. For

example, he claims that his statement to the police was not voluntary. And he makes

several complaints regarding his appellate attorney that he did not raise below. Because

he did not raise these issues in his petition for postconviction relief, we do not consider

them. See Azure v. State, 700 N.W.2d 443, 447 (Minn. 2005) (“It is well settled that a

party may not raise issues for the first time on appeal from denial of postconviction

relief” (quotation omitted)).

          In conclusion, “a postconviction court abuses its discretion when its decision is

based on an erroneous view of the law or is against logic and the facts in the record.”

Riley, 819 N.W.2d at 167 (quotation omitted). In this case, the postconviction court

properly applied the law and its decision is not against logic or the facts in the record.

The postconviction court properly reasoned that Pfarr’s claims of improper impeachment

and ineffective assistance of trial counsel were Knaffla barred because Pfarr knew or

should have known about the claims at the time of his direct appeal.                 And the

postconviction court properly concluded that Pfarr’s “general claim of ineffective


                                               8
assistance of appellate counsel is . . . insufficiently specific to warrant an evidentiary

hearing.” There is no basis for this court to reverse.

       Affirmed.




                                              9
