                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1171

                             Aaron Wayne Downing, petitioner,
                                       Appellant,

                                             vs.

                                     State of Minnesota,
                                        Respondent.

                                    Filed April 11, 2016
                                         Affirmed
                                     Schellhas, Judge

                                 Clay County District Court
                                  File No. 14-CR-11-2712

Aaron Wayne Downing, Bayport, Minnesota (pro se appellant)

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

Brian J. Melton, Clay County Attorney, Pamela Harris, Assistant County Attorney,
Moorhead, Minnesota (for respondent)

          Considered and decided by Schellhas, Presiding Judge; Worke, Judge; and Johnson,

Judge.

                          UNPUBLISHED OPINION

SCHELLHAS, Judge

          In this pro se appeal, appellant asks us to reverse the summary denial of

postconviction relief from his conviction of third-degree criminal sexual conduct. We

affirm.
                                         FACTS

       In August 2011, appellant Aaron Wayne Downing digitally penetrated 19-year-old

R.A.L. without her consent. Respondent State of Minnesota charged Downing with third-

and fifth-degree criminal sexual conduct, and a jury found Downing guilty as charged. The

district court entered convictions of third- and fifth-degree criminal sexual conduct and

sentenced Downing to 117 months’ imprisonment for the third-degree offense.

       Downing appealed, arguing that

              (1) the district court abused its discretion when it allowed the
              state to impeach [Downing] with prior felony convictions
              without conducting a Jones analysis; (2) the prosecutor
              committed reversible misconduct by eliciting from [Downing]
              testimony regarding a prior uncharged domestic-abuse incident
              and by improperly referencing the criminal histories of
              [Downing] and other witnesses during closing argument; and
              (3) the fifth-degree [criminal sexual conduct] conviction must
              be vacated as a lesser-included offense of the third-degree
              conviction.

State v. Downing, No. A12-0446, 2013 WL 599164, at *1 (Minn. App. Feb. 19, 2013),

review denied (Minn. May 21, 2013). This court affirmed Downing’s conviction of the

third-degree offense but reversed and vacated Downing’s conviction of the fifth-degree

offense. Id. at *1, *3.

       Two years later, Downing filed a pro se petition for postconviction relief. The

postconviction court summarily denied relief, concluding that all of Downing’s claims are

procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

       This appeal follows.




                                             2
                                      DECISION

       A defendant may petition for relief from a conviction obtained in violation of his

rights “under the Constitution or laws of the United States or of the state.” Minn. Stat.

§ 590.01, subd. 1 (2014). The postconviction court may deny relief summarily 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 (2014).

       “[Appellate courts] review the denial of a petition for postconviction relief, as well

as a request for an evidentiary hearing, for an abuse of discretion.” Taylor v. State, 874

N.W.2d 429, 430 (Minn. 2016) (quotation omitted). “In doing so, [appellate courts] review

the postconviction court’s underlying factual findings for clear error and its legal

conclusions de novo.” Id. at 430–31 (quotation omitted). “[Appellate courts] can affirm the

denial of postconviction relief on grounds other than those on which the postconviction

court relied.” Dukes v. State, 718 N.W.2d 920, 921–22 (Minn. 2006).

       Under Knaffla and its progeny, “once a direct appeal has been taken, all claims

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

were not raised in the direct appeal are procedurally barred.” Colbert v. State, 870 N.W.2d

616, 626 (Minn. 2015); see also Minn. Stat. § 590.01, subd. 1 (“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 supreme court] ha[s] recognized two exceptions to
              the Knaffla bar: a claim should be considered if it is (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



                                              3
              fairness so requires and the petitioner did not deliberately and
              inexcusably fail to raise the issue on direct appeal.

Carridine v. State, 867 N.W.2d 488, 493 (Minn. 2015) (quotation omitted).

       In this case, Downing challenges the postconviction court’s summary denial of

relief on the grounds that his claims are procedurally barred under Knaffla. Specifically,

Downing argues that Knaffla bars neither his prosecutorial-misconduct claim nor his

ineffective-assistance-of-trial-counsel claim. Downing also argues that the court erred by

failing to make findings of fact and conclusions of law on each of his postconviction claims.

       Downing first acknowledges that he raised a prosecutorial-misconduct claim on

direct appeal but argues that the claim is not Knaffla-barred because this court did not

address “the most major issues of misconduct” in its February 19, 2013 opinion. Downing

claims that “if an Appeal Court does not include issues on Appeal in [its] opinion, these

issues can be included in a Petition for Post-Conviction Relief.” But Downing provides no

argument or authority to support this claim, and we decline to consider it. See State v.

Bartylla, 755 N.W.2d 8, 22 (Minn. 2008) (“[Appellate courts] will not consider pro se

claims on appeal that are unsupported by either arguments or citations to legal authority.”).

       Downing also argues that his prosecutorial-misconduct claim is not Knaffla-barred

because he received evidence to prove some of the misconduct only after his direct appeal.

Downing does not identify the evidence to which he refers, explain why he could not have

accessed that evidence at an earlier date, or even assert that he could not have accessed the

evidence at an earlier date; we therefore reject this argument without analysis. See Sessions

v. State, 666 N.W.2d 718, 721–22 (Minn. 2003) (rejecting postconviction claim as Knaffla-



                                             4
barred without exception, reasoning in part that petitioner offered “nothing to support his

assertions” and noting that “we have held that allegations must be more than bald assertions

or unsupported statements”). We conclude that the postconviction court did not abuse its

discretion by summarily denying Downing’s prosecutorial-misconduct claim. See Colbert,

870 N.W.2d at 622 (stating that “a postconviction court may summarily deny a claim that

is . . . procedurally barred under Knaffla”).

       Downing next acknowledges that his ineffective-assistance-of-trial-counsel claim

was available on direct appeal, yet he argues that the claim is not Knaffla-barred because

it “cannot be fully examined” on the trial record. Downing is correct that an ineffective-

assistance-of-trial-counsel claim that “requires examination of evidence outside the trial

record or additional fact-finding by the postconviction court” may be raised in a first

postconviction petition, even if the basis for the claim was or should have been known on

direct appeal. Nissalke v. State, 861 N.W.2d 88, 93 (Minn. 2015), reh’g denied (May 20,

2015). But Downing does not explain why his claim requires examination of evidence

outside the trial record or additional fact-finding by the postconviction court; neither does

he provide examples of claims that have been held to require examination of outside

evidence or additional fact-finding. Accordingly, we decline to consider whether

Downing’s ineffective-assistance-of-trial-counsel claim survives the Knaffla bar. See

Bartylla, 755 N.W.2d at 22 (“[Appellate courts] will not consider pro se claims on appeal

that are unsupported by either arguments or citations to legal authority.”).

       In any event, “to be entitled to an evidentiary hearing on an ineffective-assistance-

of-counsel claim, the petitioner must allege facts that, if proven by a fair preponderance of


                                                5
the evidence, would satisfy the two-prong test” for ineffective assistance of counsel.

Carridine, 867 N.W.2d at 493–94 (quotation omitted). Here, Downing bases his

ineffective-assistance-of-trial-counsel claim on matters of trial strategy that cannot support

such a claim. See State v. Ali, 855 N.W.2d 235, 260 (Minn. 2014) (stating that courts “will

not review” ineffective-assistance claims that “raise matters of trial strategy”). We

conclude that the postconviction court did not abuse its discretion by summarily denying

that claim. See Fort v. State, 861 N.W.2d 674, 675 (Minn. 2015) (“Because [petitioner]’s

claim of ineffective assistance . . . fails as a matter of law, and his remaining claims are

time barred . . . , the postconviction court did not abuse its discretion in summarily denying

[the] petition.”).

       Downing also complains that the postconviction court “failed to review” three other

claims raised in his petition: (1) sufficiency of the evidence, (2) ineffective assistance of

appellate counsel, and (3) cumulative error. Citing Minn. Stat. § 590.04, subd. 1, Downing

challenges the court’s failure to make findings of fact and conclusions of law on each of

his postconviction claims.

       A postconviction court does not abuse its discretion by summarily denying relief

without issuing findings of fact and conclusions of law so long as the record “conclusively

supports” the denial of relief. Voorhees v. State, 627 N.W.2d 642, 653 (Minn. 2001). Here,

Downing’s sufficiency-of-the-evidence and cumulative-error claims were available on

direct appeal and therefore are Knaffla-barred; Downing offers no reason to apply a Knaffla

exception. And Downing’s ineffective-assistance-of-appellate-counsel claim is predicated

on appellate counsel’s failure to raise a claim of ineffective assistance of trial counsel.


                                              6
Downing’s failure to allege facts to support his claim of ineffective assistance of trial

counsel renders meritless his claim of ineffective assistance of appellate counsel. See

Carridine, 867 N.W.2d at 494 (“When a petitioner bases his ineffective-assistance-of-

appellate-counsel claim on appellate counsel’s failure to raise a claim of ineffective

assistance of trial counsel, he must first show that trial counsel was ineffective.”). We

conclude that the postconviction court did not abuse its discretion by summarily denying

relief on Downing’s postconviction claims without making findings of fact and conclusions

of law regarding each of those claims.

      Affirmed.




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