State v. Nicks

GILDEA, Chief Justice

(dissenting).

I respectfully dissent. The majority remands this case to the posteonviction court for an evidentiary hearing on Appellant Nidjia Nicks’s ineffective assistance of trial counsel claim. In doing so, the majority fails to apply well-established law regarding posteonviction evidentiary hearings and claims of ineffective assistance of trial counsel. Applying our well-established law to the facts of this case, I conclude that (1) there is no need to grant a post-conviction evidentiary hearing because Nicks’s claim is based entirely on the trial record, and (2) when the posteonviction court’s factual findings are afforded the required deference, the matters about which Nicks complains plainly involve trial strategy that is beyond the scope of our review. Based on these conclusions, I would affirm the posteonviction court’s summary denial of Nicks’s ineffective assistance of trial counsel claim.

I.

Our precedent recognizes that the purpose of a posteonviction evidentiary hearing is to develop the record when a claim depends on a fact outside the trial record. See, e.g., State v. Hokanson, 821 N.W.2d 340, 357-58 (Minn.2012); Leake v. State, 737 N.W.2d 531, 541 (Minn.2007) (remanding for an evidentiary hearing regarding discussions between counsel and defendant as to consequences of a plea); Dukes v. State, 621 N.W.2d 246, 254-55 (Minn.2001) (remanding for an evidentiary hearing regarding discussions between defendant and counsel as to counsel’s concession of defendant’s guilt). A posteonviction evi-dentiary hearing therefore is not required when an ineffective-assistance-of-counsel claim is based entirely on the trial record. See Buckingham v. State, 799 N.W.2d 229, 233 (Minn.2011). On the other hand, “[a]n evidentiary hearing on a petition is mandated whenever material facts are in dispute[,] which have not been resolved in the proceedings resulting in conviction and which must be resolved in order to determine the issue raised on the merits.” Riley v. State, 819 N.W.2d 162, 167 (Minn.2012) (citation omitted) (internal quotation marks omitted).

Without identifying any disputed material fact that is outside the trial record, the majority concludes that an evidentiary hearing is warranted on Nicks’s claims that his trial counsel was ineffective for failing to secure records of the victim’s cellphone. In its analysis of the first prong of the Strickland test, the majority states that “Nicks has alleged that counsel sought [the telephone] information, that he failed to obtain or misread [the subpoena response], and this allegation is not contradicted by the files or records.” 7 Supra at *513 27. Because the majority’s own analysis establishes that the issue about which Nicks complains is contained in the trial record, our precedent does not support a remand for an evidentiary hearing. There is simply nothing factually that needs to be developed or that is contested to necessitate a remand for an evidentiary hearing regarding counsel’s alleged failure to secure the victim’s cellphone records. 8 Our district courts and public defenders are already overburdened; we ought not to add to that burden by ordering hearings for the sake of hearings when there is no disputed factual question that actually needs to be litigated. 9

The majority misinterprets MinmStat. § 590.04 (2012), when it suggests that, even in the absence of a disputed material fact that is outside the trial record, an evidentiary hearing is required whenever the trial record fails to conclusively show that the defendant is entitled to no relief. When, properly interpreted, section 590.04 provides a petitioner an opportunity to develop the record through the presentation of evidence that proves “the facts alleged in the petition” by a fair preponderance. of the evidence. Minn.Stat. § 590.04, subd. 3 (emphasis added). But if the “the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief,” there is no need for an evidentiary hearing because even if the petitioner proved the facts alleged in the petition, he would not be entitled to relief. 10 Id., subd. 1 (emphasis added). This statutory scheme assumes that the petition alleges facts out *514 side the trial record, and therefore there is a need to develop the record. It is axiomatic that when a petition fails to allege a contested material fact that is outside the trial record, there is no need for an eviden-tiary hearing. 11 Because the majority’s decision to remand this case to the post-conviction court for an evidentiary hearing is contrary to well-established law, I dissent.

II.

Not only does the majority depart from precedent in ordering an evidentiary hearing in this case, the majority also departs from precedent in concluding that matters of trial strategy are subject to review for ineffective assistance of counsel. In my view, the trial record conclusively shows that Nicks is entitled to no relief on his ineffective-assistance-of-counsel claim because, when the postconviction court’s findings are afforded the deference required, the matters about which Nicks complains plainly involve trial strategy and trial strategy is not reviewable in the context of an ineffective assistance of trial counsel claim.

As the majority notes, we review de novo the postconviction court’s “decisions” on “claims of ineffective assistance of counsel.” Opsahl v. State, 677 N.W.2d 414, 420 (Minn.2004). But we review factual findings underlying those decisions for clear error. Hawes v. State, 826 N.W.2d 775, 783-85 (Minn.2013) (concluding that the record supported the factual finding on premeditation that the postconviction court made in the course of analyzing the second prong of Strickland test); see also Strickland v. Washington, 466 U.S. 668, 698 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) (explaining that state court findings of fact made in the course of deciding a claim of ineffective assistance of counsel are subject to the clearly erroneous standard of review). 12 *515 We therefore are required to “afford great deference to a [postconviction] court’s findings of fact and will not reverse the findings unless they are clearly erroneous.” Carlton v. State, 816 N.W.2d 590, 599 (Minn.2012) (citation omitted) (internal quotation marks omitted). Only when there is no reasonable evidence to support the finding or when we are left with the definite and firm conviction that a mistake occurred is a finding clearly erroneous. State v. Evans, 756 N.W.2d 854, 870 (Minn.2008).

Whether defense counsel made a strategic decision is a question of historical fact that is separate and distinct from the question of whether the strategic decision was a reasonable exercise of professional judgment under Strickland. Wood v. Allen, 558 U.S. 290, 301-04 , 130 S.Ct. 841 , 175 L.Ed.2d 738 (2010); see also Rivera v. State, 58 A.3d 171, 181 (R.I.2013) (explaining that appellate courts must defer to “findings of historical fact regarding trial counsels’ decision not to mount a third-party perpetrator defense”). In Wood, the United States Supreme Court concluded that “the state court’s finding that Wood’s counsel made a strategic decision not to pursue or present evidence of Wood’s mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings.” Wood, 558 U.S. at 301 , 130 S.Ct. 841 (emphasis added).

Based on its observations during the jury trial, the posteonvietion court found that: (1) defense “counsel made a clear decision to rely on cross examination to dispute [the threatening phone call] testimony,” and (2) counsel was not “totally derelict in his duty in attempting to locate exculpatory evidence.” Instead of considering whether there is reasonable evidence to support these findings, the majority independently reviews the trial record, concluding that “[o]btaining ... Hollis’s cellphone records was not a course of action that trial counsel considered and rejected; rather, it remained a central part of counsel’s theory of the case and his strategy at trial.” 13 Supra at 26. The majority’s analysis amounts to a de facto reversal of the postconviction court’s findings. But our standard of review does not permit us to so easily second-guess the postconviction court’s factual findings. Indeed, in my view, the majority’s analysis undermines the very purpose of the clearly erroneous standard of review, which is to ensure “uniformity and consistency in the *516 law by prohibiting the retrial of a case on appeal.” In re Welfare of M.D.O., 462 N.W.2d 370, 374 (Minn.1990).

My review of the record confirms that the postconviction court’s findings are not clearly erroneous. Defense counsel sought a court order requiring the State to obtain and disclose the records for the victim’s cell phone. The records were not provided, but it was not because counsel was derelict in failing to request them. Faced with the reality that the records had not been provided when the trial was well underway, defense counsel had a decision to make: should he seek a continuance to pursue further the records or should he persist with his initial strategy of challenging the State’s theory that Nicks had threatened the victim through other means, including witness cross-examination. Because the record contains reasonable evidence to support the postconviction court’s findings that counsel was not “derelict in his duty in attempting to locate exculpatory evidence” and instead “made a clear decision” to persist with his initial strategy, we are bound by those findings on appeal.

When the postconviction court’s factual findings are applied to our well-established case law, the matters about which Nicks complains plainly involve trial strategy that is beyond the scope of our review. In one of our leading cases on the question of trial strategy, State v. Jones, 392 N.W.2d 224 (Minn.1986), we made clear that contentions that “relate to trial strategy,” and not to “errors in professional performance,” do not fall within the scope of appellate court review for effective assistance. Id. at 236 . Jones alleged that his counsel was ineffective because he failed to hire an investigator and failed to interview witnesses. Id. We said that decisions about “[w]hich witnesses to call at trial and what information to present to the jury are questions that lie with the proper discretion of the trial counsel.” Id. And we held that such “trial tactics should not be reviewed by an appellate court, which, unlike the counsel, has the benefit of hindsight.” Id. We have repeatedly followed that rule. See, e.g., Andersen v. State, 830 N.W.2d 1, 13 (Minn.2013) (noting that conduct that “falls within trial strategy ... is not reviewable” for ineffective assistance); State v. Davis, 820 N.W.2d 525 , 539 n. 10 (Minn.2012) (noting that “decisions about which witnesses to interview are typically matters of trial strategy that we will not review”); Francis v. State, 781 N.W.2d 892, 898 (Minn.2010) (noting that whether to cross-examine the State’s expert witness constitutes trial strategy); Williams v. State, 764 N.W.2d 21, 31 (Minn.2009) (“When determining whether alleged failure to investigate constitutes ineffective assistance of counsel, we consider whether the decision was based on trial strategy or whether it demonstrated that counsel’s performance fell below an objective standard of reasonableness.”); Opsahl, 677 N.W.2d at 421 (“We are in no position to second-guess counsel’s decision to focus his strategy on other defenses instead of investigating [other] suspects.”); State v. Doppler, 590 N.W.2d 627, 633 (Minn.1999) (“What evidence to present to the jury, including which witnesses to call, represents an attorney’s decision regarding trial tactics and lies within the proper discretion of trial counsel.”); Hodgson v. State, 540 N.W.2d 515, 518 (Minn.1995) (noting that defense counsel’s decision not to present evidence that someone else might have committed the murder and not to investigate leads was trial strategy).

Without affording any deference to the postconviction court’s findings that counsel was not “derelict in his duty in attempting to locate exculpatory evidence” and instead “made a clear decision” to persist with his initial strategy of challenging the testimo *517 ny through cross-examination and other means, the majority finds that “[ojbtaining ... Hollis’s cellphone records was not a course of action that trial counsel considered and rejected; rather, it remained a central part of counsel’s theory of the case and his strategy at trial.” Supra at 26. Having substituted its factual finding for the finding of the postconviction court, the majority contends the general rule prohibiting review of trial strategy should not apply when a defense attorney “inexplicably [takes] no further action” to obtain relevant evidence. Supra at 26. But the majority’s finding that defense counsel “inexplicably took no further action” is directly contrary to the postconviction court’s finding that counsel made a strategic decision. Under our precedent, that type of decision is not reviewable. See Opsahl, 677 N.W.2d at 421 .

The majority argues that my adherence to our precedent “turns trial strategy into an impregnable barrier to ineffective-assistance claims.” Supra at 26. That “barrier” is exactly what our precedent requires, and with good reason. See Opsahl, 677 N.W.2d at 421 (“Our reluctance to scrutinize trial tactics is grounded in the public policy of allowing counsel to have the flexibility to represent a client to the fullest extent possible.” (citation omitted) (internal quotation marks omitted)). If the majority contends that these policy reasons no longer provide support for our rule, it should explain why and how that is so. See Hokanson, 821 N.W.2d at 350 (noting that “we are extremely reluctant to overrule our precedent under the principle of stare decisis and require a compelling reason before a prior decision will be overruled” (citation omitted) (internal quotation marks omitted)).

Rather than adhering to our precedent, the majority writes a new rule that permits examination into the wisdom of trial counsel’s strategic decisions. In writing this new rule today, the majority relies on death penalty cases from the United States Supreme Court. That an appellate court’s review of counsel’s performance may be broader in the context of the death penalty is not unexpected. That broader review in the “unique” context of the death penalty, however, does not support the conclusion that we should depart from our precedent in this case. Cf. United States v. Harper, 729 F.2d 1216, 1222-23 (9th Cir.1984) (“As the Supreme Court has recognized, the death penalty is unique.”); Gregg v. Georgia, 428 U.S. 153, 188 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976) (plurality opinion) (noting that the death penalty is “different in kind from any other punishment imposed under our system of criminal justice”). Additionally, the majority misapplies the review standard from these cases when it focuses on “counsel’s failure to obtain the cellphone records,” supra at 21, 24-25, rather than the issue of whether the reasons supporting counsel’s decision not to seek a midtrial continuance were objectively reasonable. 14 In light of the *518 postconviction court’s finding that counsel was not “derelict in his duty in attempting to locate exculpatory evidence” and instead “made a clear decision” to persist with his initial strategy, I would resolve this case consistent with our precedent and hold that matters of trial strategy, such as the matters about which Nicks complains, are not within the scope of review in the context of a claim for ineffective assistance of counsel.

In sum, I dissent from the majority’s decision to remand this case to the post-conviction court for an evidentiary hearing on Nicks’s ineffective-assistance-of-counsel claim for two reasons. First, there is no need for an evidentiary hearing because the majority has failed to identify any disputed material fact that is outside the trial record. Second, the trial record conclusively shows that Nicks is entitled to no relief because when the postconviction court’s findings are afforded the required deference, the matters about which Nicks complains plainly involve trial strategy and trial strategy is beyond the scope of our review in the context of an ineffective assistance of trial counsel claim. For the reasons articulated above, I would affirm.

. The two prongs of the Strickland test are: (1) "counsel’s representation fell below an objective standard of reasonableness,” and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. *513 State v. Rhodes, 657 N.W.2d 823, 842 (Minn.2003) (citation omitted) (internal quotation marks omitted).

.The majority contends that it is "a logical fallacy” to equate its concession that Nicks's factual allegations regarding counsel’s failure to obtain the cellphone records are not contradicted by the files or records with a concession that there are no material disputed facts regarding counsel’s failure to obtain the cellphone records. In support of its contention, the majority asserts that ‘‘Nicks’s allegations go into more detail and implicate more facts than have so far been developed.” Supra at 28 n. 5. Yet the majority fails to specify any disputed factual allegation made by Nicks that is not based on the trial record. Instead, the majority writes about a trip to Chicago. It is not necessary to depart from Minnesota or our precedent to resolve this case. A careful review of Nicks’s petition for postconviction relief indicates that each factual allegation regarding counsel’s failure to obtain the cellphone records is followed by a citation to the trial record. I fully agree that had Nicks alleged a material, disputed fact that occurred outside the trial record, the fact that the trial record does not contradict the alleged fact would not eliminate a need for an evidentiary hearing to resolve the material fact dispute. But that is not the case here.

. The majority argues that there is a factual dispute regarding the issue of "whether Hollis received a call from Nicks via call waiting.” Supra at 31. The majority then goes on to admit that this purported dispute can be resolved by applying "[sjimple addition” to the call logs in the record. Id. at 32. Surely the majority is not seriously contending that the postconviction court and the parties need to expend resources to hold an evidentiary hearing for the sole purpose of conducting this "simple” mathematical calculation to undisputed numbers. Any such contention is inconsistent with our precedent. Cf. State v. Ferguson, 742 N.W.2d 651, 660 (Minn.2007) (noting that "to justify the expense and risk of transporting the petitioner to an evidentiary hearing, it seems to us that the petitioner has an obligation to make a greater showing of a genuine recantation than was made here”).

. The majority argues that I "disagree with the policy choice made by the Legislature” because I "articulate[ ] a higher, tougher threshold” for holding an evidentiary hearing. Supra at 21. I do no such thing. The threshold I apply is the one our court has consistently applied until the majority's decision today. See, e.g., Hokanson, 821 N.W.2d at 357 ; Buckingham, 799 N.W.2d at 233 ; Leake, 737 N.W.2d at 541 ; Dukes, 621 N.W.2d at 254 .

. The majority's analysis loses sight of this axiom when it refers to Nicks's "allegations” rather than the "facts alleged in the petition.” The imprecise term "allegations” causes the majority to blur the distinction between a defendant's legal claim and the underlying facts that allegedly support the legal claim. In considering whether to grant an evidentia-ry hearing to resolve underlying factual disputes, a postconviction court must view the alleged facts, not the alleged legal claim, in a light most favorable to the petitioner. See, e.g., Riley, 819 N.W.2d at 169 (viewing the facts alleged in the petition in the light most favorable to the petitioner).

. The majority apparently contends that affording deference to the factual findings made by a postconviction court in the course of deciding a claim of ineffective assistance of counsel represents a departure from our precedent. But it is in fact the majority’s decision that reflects a departure from controlling precedent. In failing to apply the clearly erroneous review standard set forth in Strickland, 466 U.S. at 698 , 104 S.Ct. 2052 , to the postconviction court’s factual findings, not only does the majority depart from our precedent, but it also places Minnesota out of step with courts across the country. See, e.g., Bennett v. United States, 663 F.3d 71, 85 (2d Cir.2011) (explaining that its deference to the findings made by district court in the course of deciding an ineffectiveness claim reflected “the superiority of the trial judge’s position to make determinations of credibility since only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said” (citation omitted) (internal quotation marked omitted)); Ahmad v. Redman, 782 F.2d 409, 412 (3d Cir.1986) (explaining that the statutory presumption of correctness attaches to the subsidiary findings of historical fact that are relevant to the resolution of mixed questions of fact and law raised by a claim of ineffective assistance of counsel); United States v. Auerbach, 745 F.2d 1157, 1161 (8th Cir.1984) (explaining that, "[w]e will affirm a district court’s finding that a habeas petitioner was denied effective assistance of counsel where the district court’s findings of fact which support the conclusion of law are not clearly erroneous”); Gaines v. Comm’r of Corr., 306 Conn. 664 , 51 A.3d 948 , 959-60, 966 (2012) (explaining that *515 the postconviction court's finding that "the alibi testimony was credible and compelling” was subject to the clearly erroneous standard of review because a postconviction court “is the sole arbiter of the credibility of witnesses and weight to be given to their testimony” (citation omitted) (internal quotation marks omitted)); Windom v. State, 886 So.2d 915, 921-26 (Fla.2004) (deferring to the postcon-viction court's determinations regarding the credibility of witnesses and the weight of the State’s evidence when independently reviewing the postconviction court's conclusion that there was no reasonable probability that the outcome of the trial would have been different); Riley v. State, 110 Nev. 638 , 878 P.2d 272, 279 (1994) (deferring to the trial court's underlying credibility assessment when independently reviewing the trial court's conclusion that counsel’s failure to investigate statements reported by the defendant’s mother did not fall below an objective standard of reasonableness).

. The majority contends that the issue of whether defense counsel made a conscious decision to dispute the threatening phone call testimony with a cross-examination strategy, rather than a phone-record strategy, presents a question of law, not a finding of historical fact. Supra at 18 n. 1. That contention is inconsistent with the United States Supreme Court’s decision in Wood and our general understanding of historical facts, see McGlothlin v. Steinmetz, 751 N.W.2d 75, 80 (Minn.2008) (describing historical facts as how many nights McGlothlin stayed at the Steinmetz home or for how long).

. On the seventh day of jury selection, May 26, 2009, defense counsel explained on the record why he would not seek a midtrial continuance if the State failed to secure and disclose Hollis's cellphone records. More specifically, counsel said,

"I'm not going to ask for a continuance. Maybe — I’m going to make a good record of [the State’s failure to disclose Hollis’ cellphone records]. We are in trial. But I’m going to make a good record and you might end up trying it again anyway if you [sic] lose but I’m not planning on losing. So it will be moot then.”

Counsel’s comments reflect a "clear decision" not to seek a continuance based on his belief that he could win the case without Hollis’s cellphone records, and that in the event he lost the trial, the State’s failure to disclose the phone records would constitute reversible error. Thus, even under the review standard from the death penalty cases, Nicks is conclu *518 sively entitled to no relief on his claim of ineffective assistance of counsel because the reasons for his decision not to seek a midtrial continuance, articulated by defense counsel as part of the trial record, are not objectively unreasonable.