Danny Hamilton v. State of Minnesota ( 2015 )

This opinion will be unpublished and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
A14-1457
Danny Hamilton, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed March 23, 2015
Affirmed
Hooten, Judge
Hennepin County District Court
File No. 27-CR-10-17596
Danny Hamilton, Owatonna, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and
Hooten, Judge.
UNPUBLISHED OPINION
HOOTEN, Judge
Pro se appellant challenges the denial of his postconviction petition following his
direct appeal, arguing that the postconviction court erred by concluding that his claims
were without merit and were barred under State v. Knaffla, 309 Minn. 246, 252, 243
N.W.2d 737, 741 (1976). We affirm.
FACTS
In 2010, appellant Danny Hamilton was charged with first-degree criminal sexual
conduct and first-degree aggravated robbery. After the sexual assault, the victim
underwent a sexual-assault examination. A nurse swabbed the victim’s mouth, vagina,
rectum, and perineal area. A serologist from the Minnesota Bureau of Criminal
Apprehension (BCA) determined that the best source of potential DNA evidence was
from the perineal swab. A BCA forensic scientist tested the perineal swab, but the
remaining swabs were not tested. Upon testing of the perineal swab, DNA from the
sperm of an unidentified male was found, but Hamilton’s DNA was not found.
At trial, the victim testified that Hamilton sexually assaulted her orally, vaginally,
and anally. In addition to the victim’s testimony, the state’s evidence against Hamilton
included evidence of the victim’s numerous physical injuries, testimony about “fresh”
wounds on Hamilton’s hands and blood on his clothes on the night of the incident, and a
neighbor’s testimony that she heard a woman “wailing” and “crying” at the scene of the
crime. Hamilton testified in his own defense, admitting that he had oral sex with the
victim, but claiming that it was consensual.
Hamilton was convicted of both offenses. He appealed his convictions directly to
this court, arguing that: (1) prosecutorial misconduct in his first trial barred re-
prosecution under the Double Jeopardy Clause; (2) the prosecutor’s peremptory strike of
the only African American member of the jury panel was racially motivated; (3) the
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postconviction court erred by excluding evidence under the rape shield rule; and (4) the
evidence was insufficient to convict him. State v. Hamilton, No. A11-115, 2012 WL
5747, at *1 (Minn. App. Jan. 3, 2012), review denied (Minn. Mar. 28, 2012). We
affirmed. Id.
Subsequently, Hamilton sought postconviction relief, arguing that the failure of his
trial and appellate counsel to request and obtain independent DNA testing of the victim’s
rectal and vaginal swabs constituted ineffective assistance of counsel, and that DNA
testing should now be performed on the swabs. The postconviction court concluded that
Hamilton’s claims were without merit and were procedurally barred under Knaffla. This
appeal followed.
DECISION
When direct appeal is no longer available, a person convicted of a crime who
claims that the conviction violated his or her rights may file a postconviction petition to
vacate and set aside the judgment. Minn. Stat. § 590.01, subd. 1 (2014). “In
postconviction proceedings, the burden is on the petitioner to establish, by a fair
preponderance of the evidence, facts that warrant relief.” Williams v. State, 692 N.W.2d
893, 896 (Minn. 2005). “Allegations in a postconviction petition must be more than
argumentative assertions without factual support.” McKenzie v. State, 754 N.W.2d 366,
369 (Minn. 2008) (quotations omitted). “We review a denial of a petition for
postconviction relief . . . for an abuse of discretion. A postconviction court abuses its
discretion when its decision is based on an erroneous view of the law or is against logic
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and the facts in the record.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012) (quotation
and citations omitted).
I.
Hamilton argues that, where the state did not conduct DNA testing of the victim’s
rectal and vaginal swabs, his trial counsel provided ineffective assistance by failing to
conduct such tests. He alleges that his trial counsel failed to conduct DNA testing of the
swabs because the tests were too expensive or would take too long, and he argues that
these reasons are insufficient to excuse his trial counsel’s lack of diligence in performing
such tests.
“[W]here direct appeal has once been taken, all matters raised therein, and all
claims known but not raised, will not be considered upon a subsequent petition for
postconviction relief.” 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.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006)
(quotation omitted). “A claim of ineffective assistance of trial counsel that can be
decided on the basis of the trial court record must be brought on direct appeal and is
procedurally barred when raised in a [subsequent] postconviction petition.” White v.
State, 711 N.W.2d 106, 110 (Minn. 2006) (quotation omitted).
Hamilton’s claim of ineffective assistance of trial counsel is barred under Knaffla
because, at the time of his direct appeal, he knew that the victim’s rectal and vaginal
swabs were not tested, yet he did not raise this claim. See 309 Minn. at 252, 243 N.W.2d
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at 741. Hamilton does not argue that his claim falls under either of the two Knaffla
exceptions.
Even if this claim were not Knaffla-barred, however, it would fail on the merits.
To prevail on his ineffective assistance of trial counsel claim, Hamilton must show
“(1) [that] his counsel’s performance fell below an objective standard of reasonableness,
and (2) that a reasonable probability exists that the outcome would have been different
but for counsel’s errors.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013); see also
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Hamilton’s
claim fails both prongs of the Strickland test.
“There is a strong presumption that counsel’s performance was reasonable.”
Schleicher, 718 N.W.2d at 447 (quotation omitted). “Analysis of the performance prong
generally does not include reviewing attacks on counsel’s trial strategy because trial
strategy lies within the discretion of trial counsel.” Id. (quotation and citation omitted).
We conclude that the district court did not abuse its discretion by finding that the decision
not to order additional DNA testing of the rectal and vaginal swabs was part of the trial
counsel’s strategy. As the postconviction court articulated:
[D]efense counsel used the lack of testing to argue reasonable
doubt on behalf of [Hamilton]. Defense counsel argued that
[the] lack of testing results—and the lack of a request for
testing by the [s]tate—[w]as a failure to do good police work,
as part of an overall attack on the [s]tate’s case. The record
makes it clear that the defense strategy was to use the lack of
testing as grounds for why the jury should have reasonable
doubt as to [Hamilton’s] guilt. Seeking independent DNA
testing may have undermined this argument.
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The postconviction court’s findings of fact are not clearly erroneous, and it correctly
applied the law. Therefore, Hamilton has not shown that his trial counsel’s performance
fell below an objective standard of reasonableness.
As to the prejudice prong, Hamilton argues that DNA testing of the victim’s rectal
and vaginal swabs could have proven that he did not have anal or vaginal sex with the
victim, which would have supported his consent defense. But, neither anal nor vaginal
penetration is an essential element of Hamilton’s conviction. See Minn. Stat. §§ 609.342,
subd. 1e(i) (2008) (requiring “the actor [to cause] personal injury” by using “force or
coercion to accomplish sexual penetration”), .341, subd. 12 (2008) (including oral sex in
the definition of “sexual penetration”). Moreover, the jury heard ample evidence that
supported the criminal sexual conduct conviction, including the victim’s testimony,
documentary evidence of the victim’s physical injuries, testimony about “fresh” wounds
on Hamilton’s hands, and a neighbor’s testimony that she heard a woman screaming.
Hamilton has not shown that there is a reasonable probability that the result of the trial
would have been different if his trial counsel had ordered additional DNA testing.
Accordingly, the postconviction court did not abuse its discretion by rejecting
Hamilton’s claim of ineffective assistance of trial counsel.
II.
Hamilton also argues that his appellate counsel provided ineffective assistance by
failing to raise a claim of ineffective assistance of trial counsel on direct appeal.
“The basic standard for judging a claim of ineffective assistance of appellate
counsel is the same as that applied to trial counsel’s performance.” Jama v. State, 756
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N.W.2d 107, 113 n.2 (Minn. App. 2008). An ineffective assistance of appellate counsel
claim “is not barred by Knaffla because [appellant] could not have known of ineffective
assistance of his appellate counsel at the time of his direct appeal.” Schneider v. State,
725 N.W.2d 516, 521 (Minn. 2007). “[T]o prevail on [an] ineffective assistance of
appellate counsel claim” premised on appellate counsel’s failure to raise an ineffective
assistance of trial counsel claim, an appellant “must first show that his trial counsel was
ineffective.” Id.
Because Hamilton’s ineffective assistance of trial counsel claim is without merit,
his appellate counsel did not provide ineffective assistance by failing to raise this claim
on direct appeal. See id.; see also Case v. State, 364 N.W.2d 797, 800 (Minn. 1985)
(“When an appellant and his counsel have divergent opinions as to what issues should be
raised on appeal, his counsel has no duty to include claims which would detract from
other more meritorious issues.”). The postconviction court did not abuse its discretion by
denying Hamilton’s postconviction petition on this ground.
III.
Finally, Hamilton argues that the postconviction court should have granted his
postconviction request for DNA testing of the victim’s rectal and vaginal swabs in the
interest of justice.
A person convicted of a crime may make a motion for the
performance of . . . forensic DNA testing to demonstrate the
person’s actual innocence if . . . the evidence was not subject
to the testing because either the technology for the testing was
not available at the time of the trial or the testing was not
available as evidence at the time of the trial.
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Minn. Stat. § 590.01, subd. 1a(a)(2) (2014).
Hamilton’s claim cannot be sustained because the technology for the DNA testing
that he now seeks, and the use of such testing as evidence, was available at the time of
trial, as demonstrated by the fact that DNA testing of the victim’s perineal swab was
performed and the results were used as evidence in Hamilton’s trial. See Riley, 819
N.W.2d at 172 (holding that appellant’s motion for DNA testing of evidence “fails to
satisfy the requirements of subdivision 1a(a)(2) because [appellant] has not established
any change in . . . forensic testing in the time since his trial that would materially change
the types of testing available or testing available as evidence”). Hamilton has not shown
that he is entitled to relief on this ground, and the postconviction court did not abuse its
discretion by rejecting this claim.
Affirmed.
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