                          This opinion will be unpublished and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
                                     A13-2253

                          Michael Frederick Schmidt, petitioner,
                                       Appellant,

                                            vs.

                                   State of Minnesota,
                                      Respondent.

                                  Filed August 4, 2014
                                        Affirmed
                                      Reyes, Judge

                              Dakota County District Court
                               File No. 19HACR101575

Daniel C. Guerrero, Meshbesher & Spence, Ltd., Minneapolis, Minnesota (for appellant)

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

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County
Attorney, Hastings, Minnesota (for respondent)

       Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and

Kirk, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       In this postconviction appeal, appellant challenges the postconviction court’s

denial of an evidentiary hearing, arguing that his trial counsel rendered incomplete,
incompetent, and ineffective assistance by failing to consult an expert to rebut

respondent’s experts. We affirm.

                                          FACTS

       In May 2010, appellant Michael Frederick Schmidt was charged with criminal

sexual conduct in the first degree under Minn. Stat. § 609.342, subd. 1(a) (2010), for

allegedly sexually penetrating his nine-month-old niece. After a jury trial, he was found

guilty and sentenced accordingly. This court affirmed Schmidt’s conviction and sentence

on direct appeal, State v. Schmidt, A11-0453 2012 WL 1149327 (Minn. App. Apr. 9,

2012), review denied (Minn. June 27, 2012). Schmidt filed a petition for postconviction

relief, requesting an evidentiary hearing and arguing that he was denied effective

assistance of counsel because his trial attorney failed to consult with an expert about the

child’s injuries. The postconviction court denied Schmidt’s petition, and this appeal

follows.

                                      DECISION

I.     Knaffla bar

       Schmidt challenges the district court’s summary denial of his postconviction

petition for relief based on ineffective assistance of trial counsel. But before reaching the

merits of Schmidt’s claim, we must determine whether it is properly raised in this petition

for postconviction relief.




                                              2
       Respondent argues that Schmidt’s ineffective-assistance-of-trial-counsel claim is

barred by State v. Knaffla.1 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (holding

that when a direct appeal has been taken, “all matters raised therein, and all claims known

but not raised, will not be considered upon a subsequent petition for postconviction

relief”); see Minn. Stat. § 590.01, subd. 1 (2012) (“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.”). The state made this

argument to the postconviction court. In response, Schmidt implicitly conceded that his

ineffective-assistance-of-trial-counsel claim is barred by Knaffla, amending his petition

for relief to include “a claim of ineffective assistance of appellate counsel” based on

“appellate counsel’s failure to challenge trial counsel’s effectiveness” on Schmidt’s direct

appeal. (Emphasis added.) While the postconviction court received these arguments, it

did not base its denial of Schmidt’s petition on Knaffla or even acknowledge Schmidt’s

attempt to assert his claim as one of ineffective assistance of appellate counsel. Instead,

the postconviction court denied Schmidt’s ineffective-assistance-of-trial-counsel claim on

the merits.

       Despite conceding the potential Knaffla issue and accordingly rebranding his

claim in the arguments below as a challenge of appellate counsel’s assistance, Schmidt


1
  Knaffla bars a postconviction claim of ineffective assistance of trial counsel when the
claim is based solely on the trial record, and the claim was known or should have been
known at the time of the direct appeal. Evans v. State, 788 N.W.2d 38, 44 (Minn. 2010).
Knaffla does not bar a claim of ineffective assistance of counsel when additional
evidence outside of the existing record is required to determine the merits of the
ineffectiveness claim. Barnes v. State, 768 N.W.2d 359, 364 (Minn. 2009).

                                             3
based his appeal on ineffective assistance of trial counsel, not ineffective assistance of

appellate counsel. Only after the state reasserted its Knaffla argument in its responsive

brief did Schmidt, in his reply brief, then characterize his appeal as challenging the

assistance of appellate counsel, stating that “[t]o determine whether Mr. Schmidt’s

appellate counsel could have legitimately concluded that Mr. Schmidt would not have

prevailed on his ineffective assistance of trial counsel claim, this Court must ‘turn to an

examination of the merits of that claim.’ Arredondo v. State, 754 N.W.2d 566, 571

(Minn. 2008).”

       In short, Schmidt attempts to revive his ineffective-assistance-of-trial-counsel

claim by posthumously characterizing it in his reply brief as one of ineffective assistance

of appellate counsel for failure to raise the ineffective-assistance-of-trial-counsel claim on

direct appeal. But issues not raised or argued in an appellant’s principal brief cannot be

revived in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990),

review denied (Minn. Sept. 28, 1990). By rebranding his claim in his reply brief as one

of ineffective assistance of appellate counsel, Schmidt concedes, and we assume without

deciding, that his claim for ineffective assistance of trial counsel is procedurally barred

by Knaffla. Schmidt’s attempt to shoehorn this stale claim into an ineffective-assistance-

of-appellate-counsel claim fails. He had notice of the issue and amended his claim below

but neglected to raise the issue in his principal brief. As a result, Schmidt’s claim on

appeal is waived.




                                              4
       But even if Schmidt’s claim for ineffective assistance of trial counsel is not barred

by Knaffla and his claim for ineffective assistance of appellate counsel is not waived on

appeal, Schmidt’s arguments fail on the merits.

II.    Ineffective assistance of appellate/trial counsel

       Appellate courts review the denial of evidentiary hearings on postconviction-relief

petitions for an abuse of discretion.2 Hooper v. State, 838 N.W.2d 775, 786 (Minn.

2013). The threshold showing for a postconviction evidentiary hearing is lower than that

required for a new trial, and any doubts about whether to conduct an evidentiary hearing

should be resolved in favor of the petitioner. State v. Nicks, 831 N.W.2d 493, 504 (Minn.

2013). But a postconviction court need not hold an evidentiary hearing if “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). To receive an evidentiary

hearing on a postconviction claim of ineffective assistance of counsel, a defendant is

required to allege facts that, if proven by a fair preponderance of the evidence, would

satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064 (1984). Nicks, 831 N.W.2d at 504.

       To prevail under Strickland, “an appellant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and that a reasonable

probability exists that the outcome would have been different but for counsel’s errors.”

2
 When the district court grants an evidentiary hearing, “[w]e review the denial of
postconviction relief based on a claim of ineffective assistance of counsel de novo
because such a claim involves a mixed question of law and fact.” Hawes v. State, 826
N.W.2d 775, 782 (Minn. 2013). But here, the district court did not grant an evidentiary
hearing.

                                             5
Dereje v. State, 837 N.W.2d 714, 721 (Minn. 2013) (quotation omitted). “The two-prong

Strickland test also applies to ineffective assistance of counsel claims for appellate

counsel.” Cooper v. State, 745 N.W.2d 188, 193 (Minn. 2008). Appellate 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.” Id. (quotation

omitted). Therefore, representation by Schmidt’s appellate counsel did not fall below an

objective standard of reasonableness if counsel could have legitimately concluded that

Schmidt would not have prevailed on the ineffective-assistance-of-trial-counsel claim.

To determine whether Schmidt’s appellate counsel could have legitimately concluded

that Schmidt would not prevail on the ineffective-assistance-of-trial-counsel claim, we

examine the merits of that claim, as Schmidt implores. Arredondo, 754 N.W.2d at 571.

       “The objective standard of reasonableness is defined as representation by an

attorney exercising the customary skills and diligence that a reasonably competent

attorney would perform under similar circumstances.” State v. Hokanson, 821 N.W.2d

340, 358 (Minn. 2012) (quotation omitted), cert. denied, 133 S. Ct. 1741 (2013).

Appellate courts “review the reasonableness of counsel’s performance based on the

totality of the facts that existed at the time of counsel’s conduct.” Staunton v. State, 784

N.W.2d 289, 300 (Minn. 2010). “Because of the difficulties inherent in making [that]

evaluation, a court must indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action might be

considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065


                                              6
(emphasis added) (quotation omitted). Appellate courts “will generally not review an

ineffective-assistance-of-counsel claim that is based on trial strategy.” Andersen v. State,

830 N.W.2d 1, 10 (Minn. 2013).

       Schmidt argues that an evidentiary hearing is warranted to resolve whether he was

denied effective assistance of trial counsel. He claims that his trial attorney failed to

consult with an expert regarding the possible causes of the child’s injuries and that he

was prejudiced as a result. In support of his argument, Schmidt relies on State v. Beecroft

for the proposition that effective representation, where scientific testimony is key,

requires that defense counsel consult with an expert. 813 N.W.2d 814, 842 (Minn. 2012)

(“[W]hen scientific evidence is a significant factor at trial, one basic tool that must be

available to indigent defendants is access to the assistance of an expert for conducting

professional examinations, consulting on possible affirmative defenses or trial strategies,

and preparing to cross-examine the government’s expert witnesses.” (Quotations

omitted)).

       Schmidt’s reliance on Beecroft is misplaced. Beecroft does not establish that

counsel’s decision to forgo consulting with an expert amounts to ineffective assistance of

counsel. Unlike Beecroft, Schmidt does not contend that the he was deprived of access to

consult with an expert by a state actor. See id. at 843 (recognizing that a defendant’s

right to present a complete defense may be diminished when the state restricts access to

the defendant’s own experts). Rather, Schmidt asserts that his trial attorney advised him

that an expert witness was available to testify on his behalf, but the cost of retaining the

expert would be prohibitive. “What evidence to present to the jury, including which


                                              7
defenses to raise at trial and what witnesses to call, represent an attorney’s decision

regarding trial tactics which lie within the proper discretion of trial counsel and will not

be reviewed later for competence.” State v. Voorhees, 596 N.W.2d 241, 255 (Minn.

1999) (holding that appellant’s argument “that his counsel failed to call certain witnesses

in [appellant’s] defense and cross-examine the state’s witnesses [ ] represent matters of

trial strategy that we will not review for competence.”); see Leake v. State, 737 N.W.2d

531, 539 (Minn. 2007) (“Decisions about which witnesses to call at trial and what

information to present to the jury are questions of trial strategy that lie within the

discretion of trial counsel.”); Opsahl v. State, 677 N.W.2d 414, 421 (Minn. 2004) (“The

extent of counsel’s investigation is considered a part of trial strategy.”).

       Schmidt argues that characterizing trial counsel’s decision not to consult or call an

expert as one of trial strategy “borders on the incredulous” and that “[i]n this case, there

was no rational thought process, no plan, not a strategy at all.” But by Schmidt’s

admission, “[counsel] informed him that an expert [was] available, but that the cost

would be prohibitive” and that “[counsel] discouraged him from even attempting to

secure funds from the court to help defray some of the costs of an expert.” These alleged

statements by Schmidt’s trial counsel do not “concern errors in professional performance

but instead relate to trial strategy.” State v. Jones, 392 N.W.2d 224, 236 (Minn. 1986).

Therefore, Schmidt’s appellate counsel could have legitimately concluded that trial

counsel’s decision not to consult with an expert was a matter of trial strategy and that

Schmidt’s ineffective-assistance-of-trial-counsel claim would not prevail on appeal. As a




                                               8
result, Schmidt’s appellate counsel did not act unreasonably by failing to raise this claim

on Schmidt’s direct appeal.

       Even if Schmidt could establish that trial counsel’s failure to consult or call an

expert to testify fell below an objective standard of reasonableness, Schmidt fails to

demonstrate a reasonable probability that the outcome of trial would have been different

if his attorney had consulted with an expert. In his postconviction motion, Schmidt

submits the report of his proposed expert, who concluded that “[t]he findings in this case

are consistent with a penetrating injury that resulted in tissue tears that could have been

the result of sexual abuse. What also must be said is the injuries in this case could also

have been the result of an accident . . . .” To support the contention that the child’s

injuries may have resulted from an accident, Schmidt’s proposed expert explained that an

infant’s vaginal tissues “are very thin, delicate and relatively inelastic.”

       But at trial, Schmidt’s counsel cross-examined the child’s surgeon on this very

point, and the witness acknowledged that the vaginal wall of a nine-month-old is “less

stretchable” and that the tissue was “very delicate.” The purpose of this line of

questioning was to buttress Schmidt’s defense that the injury was caused by an accident

and that the victim would be susceptible to significant injury if an adult thumb

inadvertently penetrated the vagina. Schmidt’s counsel was aware of the physiological

argument, and she addressed it at trial.

       Because Schmidt failed to allege facts that, if proven by a preponderance of the

evidence, would show that the performance of his trial attorney fell below an objective

standard of reasonableness and that the outcome would have been different if his attorney


                                               9
had consulted with the expert, his ineffective-assistance-of-trial-counsel claim fails as a

matter of law. Accordingly, his claim of ineffective assistance of appellate counsel also

fails. The postconviction court did not abuse its discretion by summarily denying

Schmidt’s postconviction petition because it is clear he was not entitled to any relief.

       Affirmed.




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