author: BARRY G. ANDERSON, Justice.

text:
    Mark Alan STUTELBERG, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-383.
    Supreme Court of Minnesota.
    Dec. 6, 2007.

      Charles L. Hawkins, Minneapolis, MN, for Appellant.
    J. Michael Richardson, Assistant County Attorney, Minneapolis, MN, Attorney General, St. Paul, MN, for Respondent.
   OPINION

BARRY G. ANDERSON, Justice.

Appellant Mark Alan Stutelberg was convicted in 1994 of two counts of first-degree murder for the killing of his girlfriend, Holly Schwerzler. On March 30, 2006, appellant filed a petition for postcon-viction relief and a motion for an evidentia-ry hearing. The district court summarily denied appellant’s petition and motion, concluding that his delay in seeking relief constituted an abuse of judicial process and that the newly discovered evidence he proffers prejudices the State. We reverse the district court’s summary denial of appellant’s petition and motion and remand for an evidentiary hearing.

The relationship of appellant and Holly Schwerzler began during the summer of 1980. In 1981, appellant was convicted of murder for killing a drug dealer in the course of a robbery. Schwerzler participated in the crime, but, in connection with a plea bargain, she pleaded guilty to aggravated robbery in exchange for testifying against appellant. After appellant’s release from prison in 1989, the couple lived together with their son, M.S., in Cor-coran, Minnesota. They later moved to Osseo, Hennepin County, where they were living at the time of Schwerzler’s disappearance.

Appellant verbally threatened Schwer-zler’s life on multiple occasions, and M.S. testified that appellant physically abused Schwerzler approximately once a month when they lived together. Many of these incidents of abuse involved appellant attempting to strangle Schwerzler and pulling telephones out of the walls in their Osseo home to prevent her from seeking help. A particularly violent episode occurred in June 1992, a little over two months before Schwerzler’s disappearance, in which appellant attempted to strangle and vigorously kicked Schwerzler. In a note she wrote to a coworker, Schwerzler stated that appellant “about killed me this time.” Between the June 1992 incident of abuse and Schwerzler’s disappearance, Schwerzler lived in the house in Osseo and appellant lived in the adjacent garage.

Schwerzler resolved to end her relationship with appellant in the weeks before her disappearance. In August 1992, she confided in a coworker that appellant was in. possession of a trailer that did not belong to him and that she planned to notify the police/ She worried, however, that appellant “would kill her * * , * before he would go back to jail.” After appellant attempted to strangle M.S. in the week prior to Schwerzler’s disappearance, Schwerzler left M.S. with another family and became even more determined to end the relationship. On Saturday, August 29, -the police executed a search warrant for evidence of appellant’s theft of the trailer, thoroughly rummaging through the house and garage in the course of their search. Later that day, Schwerzler told the police what she knew about the trailer and returned home against the officers’ warnings. Until appellant spoke to the police on Monday, August 31, he was unaware that the police had executed a search warrant and instead believed that Schwerzler had broken into the garage.

In a phone conversation on Saturday evening, Schwerzler told her mother that she was packing her belongings. At approximately 4 a.m. on Sunday, August 30, Schwerzler’s next-door neighbor woke up, and, looking out her bathroom window, she noticed a man of appellant’s height and build in Schwerzler’s bedroom. The neighbor went back to sleep but woke up shortly thereafter and saw the man, who also had “the same walk” as appellant, place a bag into a car. After dozing off again, the neighbor woke up and saw the man turn off the light in Schwerzler’s bedroom. She watched the man enter the garage, heard the clinking sound of a chain being picked up, and saw him place something into the car. The man retrieved a briefcase from the house and drove away in the car at 5 a.m. The neighbor testified that she had “no doubt” that appellant was the man she saw that morning.

Family members became concerned when Schwerzler failed to appear at a family gathering on Sunday. They visited the house in Osseo that day and found phones ripped out of the walls, packed boxes scattered about the house, and a broken table. The state of the phones was particularly alarming given appellant’s practice of ripping phones out of the walls during his abuse of Schwerzler. The family members also observed that Schwerzler’s bed was covered with only a mattress pad and a crumpled sheet. An officer had seen a comforter on the bed when he searched the house on August 29.

Schwerzler’s family returned to the house over the next two days and found that someone had attempted to repair the phone wires and removed many of the boxes and the broken table. They also found Schwerzler’s makeup bag, which she took with her whenever she left home. On Monday, August 31, they found a pile of appellant’s clothes in the basement and a pair of jeans and a shirt in the washing machine, and the next day they found Schwerzler’s quilt in the dryer. A picture of the interior of the garage taken by one of Schwerzler’s sisters on Tuesday shows a blanket on the floor underneath Schwer-zler’s comb, an unopened pack of cigarettes, and the dining room telephone. The garage was uncharacteristically clean and had a damp spot on the floor as if it had been washed. Appellant was arrested on Tuesday, September 1, for a parole violation. He repeatedly contradicted himself in his explanations to Schwerzler’s family members and to the police regarding his activities on the weekend of Schwerzler’s disappearance, when he last saw Schwerzler, and the whereabouts of his truck and Schwerzler’s car during that time.

On October 1, 1992, a hunter discovered Schwerzler’s body wrapped in a sheet and placed under tree branches in a wooded area in Vasa Township, Goodhue County. Schwerzler’s robe, which she wore before and after her showers, was pushed partially behind her, and pieces of her clothing were tied around her neck, wrists, and ankles. An autopsy revealed that the cause of Schwerzler’s death was “homicidal strangulation” and that she was already dead when the ligatures around her wrists and ankles were attached.

A number of items found near Schwer-zler’s body came from the house in Osseo. M.S. identified an iron, a set of weights tied together, and a dumbbell found near the body as items from the house. A small Dirt Devil vacuum cleaner and a trouble light were also found near the body, and M.S. testified. that a Dirt Devil vacuum was kept in the house and that appellant had a trouble light in the garage. A chain was found near the body as well. Expert testimony at trial connected, to varying degrees of certainty, (1) a concrete block found near Schwerzler’s body with one in the garage; (2) debris found in Schwer-zler’s car with those concrete blocks; (3) grease on the concrete block found near the body with appellant’s grease gun; (4) the weights found near the body with weights in the house in Osseo; and (5) markings on the concrete block found near the body with a scratch on appellant’s grease gun. Observing that most of the items found near Schwerzler’s body are heavy, the State speculated that appellant intended to submerge the body but found the nearby creek too difficult to reach or the water level too low.

The State and appellant each called an entomologist to testify as to Schwerzler’s date of death based on the presence of insects on her body. Both entomologists emphasized that the date of death prediction is an estimate that can be affected by numerous factors. The State’s entomologist testified that the evidence was “consistent” with Schwerzler’s death occurring on or around Saturday, August 29, but on cross-examination she discovered errors in her calculations that likely affected her conclusion. Appellant’s entomologist estimated that Schwerzler’s death occurred on or after September 3, when appellant was in police custody.

Robert Edwards, who was imprisoned with appellant prior to the discovery of Schwerzler’s body, testified that he overheard appellant tell another inmate, “she’s in the woods.” But Edwards’ testimony was impeached by the testimony of another inmate, who alleged that Edwards encouraged him to testify falsely against appellant and that Edwards has a reputation as a liar. Additionally, Walter Poepping, who was imprisoned with appellant prior to appellant’s trial, testified that appellant asked him to locate witnesses who would testify on appellant’s behalf in exchange for payment. Appellant provided Poep-ping with a letter instructing the witnesses to testify that they saw Schwerzler on the night of Tuesday, September 1, 1992. Appellant’s fingerprints were found on the letter, and a handwriting expert testified that appellant was the author. The police directed Poepping to place appellant in contact with an undercover detective, and they recorded multiple conversations in which appellant advised the detective how she should testify. Poepping admitted at trial that he received a reduced sentence in exchange for his assistance to the authorities.

Jurors heard a number of other recordings in which appellant, calling from a prison telephone, asked individuals to perjure themselves on his behalf. Appellant told one person, “I want to make sure everything’s covered from A to Z and back again,” and he told another person that “I want to cover my ass for those two days.” In an attempt to convince his brother to testify, appellant pleaded, “[E]verybody lies anyway, you know what I mean”? Handwriting analysis also confirmed that appellant wrote a letter to a man referred to as “Big Larry,” in which appellant directed him to testify that he saw Schwer-zler on the afternoon of Sunday, August 30, 1992. Appellant expressed concern in one of his phone conversations that Larry perhaps had not received the letter and that “Larry’s the only one out of * * * my master plan.”

Several witnesses testified on appellant’s behalf. One of appellant’s former prison roommates testified that he wrote a letter to appellant on November 10, 1992, in which he revealed that he overhead Randy Masica, a fellow inmate, say that he saw Schwerzler on Tuesday, September 1. The letter was admitted into evidence along with an envelope postmarked November 12, 1992. Randy Masica and another witness, both former employees of appellant, testified that they saw Schwerzler on September 1.

On May 4, 1993, appellant was indicted on two counts of first-degree murder: premeditated murder under Minn.Stat. § 609.185(1) (2000) and pattern of domestic abuse murder under Minn.Stat. § 609.185(6) (1994). In August 1993, the district court authorized the State not to disclose two of its witnesses until shortly before trial, finding that they “may indeed be subject to physical harm or coercion if the information relative to these individuals presently in possession of the prosecution is disclosed to the defendant.” The witnesses had “expressed fear for their lives if their identities were disclosed prior to trial,” and one of them had allegedly received death threats through mutual acquaintances of that witness and appellant. Appellant was convicted on both counts of first-degree murder and sentenced to consecutive life sentences.

Appellant appealed his conviction in February 1995, and the following November he requested a stay of his direct appeal process to pursue evidentiary hearings in the district court. After authorizing two extensions of time for filing a brief, we dismissed appellant’s appeal for failure to file a brief and denied his motion to stay the appeals process. Our dismissals were “without prejudice to filing of a petition for post-conviction relief in the district court.”

In 2004 and 2005, appellant secured affidavits from Robert Edwards, Walter Poepping, and Diane Bauer which appellant claims entitle him to a new trial. Edwards states in his affidavit that he testified falsely at appellant’s trial in pursuit of a lenient sentence, Poepping states in his affidavit that he was paid by the authorities for assisting with the investigation and that appellant told him he was innocent, and Bauer states in her affidavit that the authorities coerced her to tell them “what [they] wanted to hear even though [she] knew it wasn’t right.”

Appellant filed a petition for postconviction relief and a motion for an evidentiary hearing on March 30, 2006, and he filed a memorandum in support of his petition in August 2006. On December 19, 2006, shortly after receiving the State’s memorandum in opposition to postconviction relief and before appellant filed a response, the district court denied appellant’s petition and motion. The district court concluded that appellant’s delay in moving for relief “amounts to an abuse of judicial process,” reasoning that appellant “offers no éxcuse, explanation, or rationale for his prolonged delay in seeking review of his murder conviction of nearly twelve years” and that appellant’s newly discovered evidence “cause[s] prejudice to the State.” Appellant appealed the district court’s decision on February 21, 2007, and he later submitted an affidavit in which he claims that he diligently pursued relief and that his delay was attributable to the pro bono status of his attorney and investigator.

I.

On appeal from a summary denial of a petition for postconviction relief, we “determine[ ] only whether sufficient evidence exists to support the lower court’s findings.” Roby v. State, 547 N.W.2d 354, 356 (Minn.1996). We will disturb the post-conviction court’s decision only if the court abused its discretion, but we review the postconviction court’s legal determinations de novo. Leake v. State, 737 N.W.2d 531, 535 (Minn.2007). A petitioner is entitled to an evidentiary hearing “[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 (2006). A petitioner’s allegations “must be ‘more than argumentative assertions without factual support.’ ” Leake, 737 N.W.2d at 535 (quoting Hodgson v. State, 540 N.W.2d 515, 517 (Minn.1995)). In the postconviction court, the petitioner has the burden of proving the truth of the facts set forth in the petition by a fair preponderance of the evidence. Minn.Stat. § 590.04, subd. 3 (2006).

Because the length of appellant’s delay in filing his petition is not as great as the length of delay in most cases in which we have upheld the denial of a petition on untimeliness grounds, the newly discovered evidence proffered by appellant causes little or no prejudice to the State, and appellant has not received appellate review of his claims, the district court erred in failing to grant an evidentiary hearing under the unique facts of this case. We therefore reverse and remand for an evi-dentiary hearing.

Length of Delay

A petitioner’s delay in filing a petition for postconviction relief is generally one factor we consider when determining whether relief should be granted. Rairdon v. State, 557 N.W.2d 318, 322 (Minn.1996). But “a delay that is deliberate and inexcusable constituting an abuse of the judicial process * * * is sufficient grounds to justify denial of relief solely on the basis that the petition is untimely.” James v. State, 699 N.W.2d 723, 728 (Minn.2005). In McMaster v. State, for example, we affirmed the denial of a petition for postconviction relief because the petitioner’s claims were meritless and his 15-year delay constituted “an abuse of the judicial process.” 551 N.W.2d 218, 218-19 (Minn.1996). But we also emphasized in McMaster that the petitioner admitted that his delay was a deliberate attempt to avoid extradition to Canada, where he thought he would face capital punishment for murders he committed there. Id. at 219. Likewise, in Gaulke v. State, we affirmed the denial of a petition for post-conviction relief because the petitioner, who waited 25 years to file his petition after allegedly learning of new evidence, “did not act with due diligence in seeking relief.” 296 Minn. 487, 487, 206 N.W.2d 652, 652 (1973). See also Sutherlin v. State, 574 N.W.2d 428, 433 (Minn.1998) (deciding to evaluate the merits of petitioner’s claims although his 10-year delay “alone may be sufficient grounds” for dismissing his petition); Black v. State, 560 N.W.2d 83, 85-86 (Minn.1997) (holding that although the petitioner’s claims were either procedurally barred or meritless, the 18-year delay between his conviction and the filing of his petition was “a sufficient basis for affirming” the district court’s denial of the petition); Houghton v. State, 296 Minn. 494, 495, 207 N.W.2d 63, 64 (1973) (“We are of the opinion that, if the matter has not been rendered moot by petitioner’s unconditional discharge, it was proper for the trial court to deny relief where over 46 years elapsed before petitioner asserted his rights.”).

The State emphasizes that appellant waited more than 11 years after his conviction and more than 10 years after his direct appeal was dismissed to file his petition for postconviction relief. But the filing delay here is not as great as the delay in most cases in which we have upheld the denial of a petition on untimeliness grounds. The length of the petitioner’s delay in Sutherlin is similar to the length of appellant’s delay, but in Suther-lin we merely posited that the petitioner’s delay “may be sufficient grounds” for dismissing the petition and proceeded to evaluate the petitioner’s claims on their merits. Sutherlin, 574 N.W.2d at 433 (emphasis added). Furthermore, the length of appellant’s delay is not as great as the length of the petitioner’s delay in McMaster, and in that case the petitioner admitted that his delay was intentional. 551 N.W.2d at 219. Appellant, in contrast, claims that his delay was unintentional and that he has diligently pursued relief. While the delay here is troublesome, it does not conclusively show that appellant is entitled to no relief.

Prejudice to the State

The prejudice to the State caused by a petitioner’s delay is also a relevant factor in determining whether relief should be granted. See Opsahl v. State, 677 N.W.2d 414, 425 (Minn.2004); Wensman v. State, 342 N.W.2d 150, 151 (Minn.1984). The district court held that the affiants’ “recanted and refashioned statements * * * cause prejudice to the State, as the statute of limitations for perjury has expired.” According to the district court, “Any new testimony offered by these former State witnesses is free of impunity and the State may not pursue any actions for perjury against them.”

The expiration of the perjury statute of limitations was the sole basis for the district court’s finding of prejudice, and we reject the court’s assessment of that issue. We have never held that the three-year statute of limitations for perjury, Minn. Stat. § 628.26(k) (2006), is also the statute of limitations for postconviction relief based on recanted testimony, which would be the practical effect of adopting the district court’s reasoning. We further reject the district court’s reasoning because, although the witnesses could not be prosecuted for false statements made at trial, they could be prosecuted for false statements made in their affidavits. See Minn. Stat. § 609.48, subd. 1 (2006). Consequently, the prejudice to the State allegedly caused by the expiration of the perjury statute of limitations does not conclusively show that appellant is entitled to no relief.

Absence-of Appellate Review

Finally, but perhaps most critically, because we dismissed appellant’s direct appeal for failure to file a brief, he has not received appellate review of his claims. “Although there may be extreme cases in which an excessive delay, without excuse, may alone justify denial of postconviction relief, * * * convicted defendants are generally entitled to at least one right of review.” Rairdon, 557 N.W.2d at 322 (internal citation omitted). Indeed, we have suggested that a petition cannot be barred as untimely where the petitioner has not been heard on appeal. In Black, for example, we noted that although excessive delay can be a basis for dismissal, “[a]n exception to this rule is if the petitioner never received a review of his case by an appellate court.” 560 N.W.2d at 85. Likewise, we clarified in Sutherlin that “[a] lengthy delay in filing a petition for postconviction relief may in itself provide a sufficient basis for affirming the dismissal of the petition when there has already been a direct appeal.” 574 N.W.2d at 432 (emphasis added).

We are cognizant of prior cases in which we have relied in part or in whole on untimeliness grounds to uphold a district court’s denial of a petition where the petitioner had not received appellate review of his claims. See McMaster, 551 N.W.2d at 218-19; Houghton, 296 Minn. at 495, 207 N.W.2d at 64; Gaulke, 296 Minn. at 487, 206 N.W.2d at 652. But in each of these cases, the petitioner had been granted a hearing. In light of the unique facts of this case, the district court’s failure to consider this factor contributes to our conclusion that the district court abused its discretion in denying appellant’s petition for postconviction relief and motion for an evidentiary hearing.

II.

Because the petition, files, and records do not “conclusively show that the petitioner is entitled to no relief,” appellant is entitled to an evidentiary hearing. Minn. Stat. § 590.04, subd. 1 (2006). The district court thus abused its discretion in summarily denying appellant’s petition for postconviction relief and motion for an evi-dentiary hearing under the facts and circumstances of this case. We recognize that appellant’s burden of proving the truth of the facts set forth in his petition will be especially difficult to meet in light of the overwhelming evidence presented against him at trial and his efforts to suborn perjury. See Minn.Stat. § 590.04, subd. 3 (2006) (“Unless otherwise ordered by the court, the burden of proof of the facts alleged in the petition shall be upon the petitioner to establish the facts by a fair preponderance of the evidence.”). We do not intimate how the district court should rule on the timeliness or merits of appellant’s petition, but only require that an evidentiary hearing be held to consider appellant’s claims.

Reversed and remanded for an eviden-tiary hearing.

      . At appellant’s trial for the murder of Schwerzler, the district court prohibited the State from revealing that appellant’s prior conviction was a homicide.

      . Appellant engaged the police in a standoff, but the district court prohibited the State from introducing evidence of that fact at trial.

      . Schwerzler's car was ultimately found near the home of Hans Brenner and Diane Bauer. Bauer claimed that appellant lent her the car, which she abandoned with the keys inside upon learning of Schwerzler's disappearance.

      . Poepping also informed the police that appellant told him that he dumped Schwerzler down a dirt road in a wooded area, but the State did not solicit this testimony at trial.

      . Neither party has raised the issue of the interaction of these convictions with Minn, Stat. § 609.04 (2006), and in light of our remand we do not reach the issue here.

      . Although not stated in the McMaster, Houghton, and Gaulke opinions, the appellate briefs in those cases indicate that the petitioners did not receive appellate review of their convictions and that a hearing was held.


source: Caselaw Access Project

author: PAGE, Justice.

license: Public Domain

text:
    Guy James HATHAWAY, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. A07-1188.
    Supreme Court of Minnesota.
    Dec. 6, 2007.

      Guy James Hathaway, Stillwater, MN, Appellant, pro se.
    Lori Swanson, Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, St. Paul, MN, for Respondent.
   OPINION

PAGE, Justice.

In this case, we review the postconviction court’s denial of pro se petitioner Guy James Hathaway’s second petition for postconviction relief challenging his 1984 conviction for first-degree murder. The postconviction court denied the petition without an evidentiary hearing. The court also denied Hathaway’s request for appointed counsel. We affirm.

In this appeal, Hathaway’s claims, construed liberally as required by Minn.Stat. § 590.03 (2006), are that: (1) his illiteracy at the time of his trial and postconviction proceedings prevented him from assisting in his own defense; (2) the description of his offense under the uniform offense charging codes is erroneous; (3) any reference to the victim as a police officer during trial was prejudicial error; (4) various other violations of his constitutional rights require reversal; (5) he was denied the right to attend his first postconviction hearing; (6) newly-discovered evidence reveals that a key witness at his trial perjured himself; (7) he was denied effective assistance of counsel at his first postcon-viction proceeding; and (8) he was erroneously denied appointed counsel for pursuing this second postconviction petition. For the reasons discussed below, we affirm.

On October 24,1982, Richard Walton, an off-duty police officer, was killed while attempting to prevent the armed robbery of a hospital pharmacy. Subsequently, Hathaway was arrested, charged, and convicted in connection with the killing. State v. Hathaway, 379 N.W.2d 498, 500 (Minn.1985). On direct appeal, we affirmed Hathaway’s conviction. Id. at 508. Hathaway subsequently filed a petition for post-conviction relief, which was denied by the postconviction court. Hathaway v. State, 434 N.W.2d 461, 461 (Minn.1989). On appeal, we affirmed the denial of postconviction relief. Id. Hathaway was represented by counsel in both his direct appeal, State v. Hathaway, 379 N.W.2d at 499, and his appeal from the denial of postconviction relief, Hathaway v. State, 434 N.W.2d at 461.

I.

Under MinmStat. § 590.01, subd. 1 (2006), a person convicted of a crime may petition for postconviction relief on the grounds that the conviction violated his rights under state or federal law. An evidentiary hearing must be held on that petition unless “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 (2006).

On review of postconviction proceedings, we inquire as to whether there was sufficient evidence to support the lower court’s findings, and will reverse only for an abuse of discretion. Russell v. State, 562 N.W.2d 670, 672 (Minn.1997). We will not consider allegations in a petition for postconviction relief that are “no more than argumentative assertions without factual support.” Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971).

Once a direct appeal has been taken from a conviction, “all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.” State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). In addition, any claims that the petitioner should have known of at the time of his direct appeal will not be considered. See Black v. State, 560 N.W.2d 83, 85 (Minn.1997). Knaffla also bars the review of claims that could have been raised in a previous postconviction petition. Wayne v. State, 601 N.W.2d 440, 441 (Minn.1999).

A. Illiteracy at Time of Trial and First Postconviction Review

Hathaway first asserts that, because he was illiterate at the time of his trial and first postconviction petition, he was unable to assist in his own defense. This claim is barred under Knaffla because Hathaway necessarily knew or should have known of the effect his alleged illiteracy had on his ability to assist in his own defense at the time of his direct appeal. Having failed to raise the issue then, the issue is barred now. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

B. References to the Uniform Charging Codes

Hathaway was indicted on three separate counts of first-degree murder: (1) premeditated murder in violation of Minn.Stat. § 609.185(1) (2000); (2) felony murder in violation of Minn.Stat. § 609.185(3) (1988); and (3) murder of a police officer in violation of Minn.Stat. § 609.185(4) (1984). The face of the indictment indicates that the offense tracking code for the murder of a police officer— Uniform Offense Classification # 0907— was listed for all three counts of the indictment. Before jury selection commenced, the state dismissed count 3 of the indictment (murder of a police officer). Ultimately, Hathaway was convicted on count 1 (premeditated murder) and count 2 (felony murder) of the indictment and of conspiracy to commit aggravated robbery.

Hathaway alleges that the use of the erroneous tracking code on both his indictment and a Department of Corrections Annual Review Report requires that his petition for postconviction relief be granted. Although Hathaway is correct that the wrong offense tracking code appears on his indictment and the Department of Corrections Annual Review Report, he does not explain how having the incorrect offense tracking code had any effect on his conviction. Because this claim contains nothing more than argumentative assertions, we will not consider it here. Beltowski, 289 Minn. at 217, 183 N.W.2d at 564.

C. Reference to Victim as “Officer Walton” at Trial

Hathaway next claims that references to the victim at trial as a police officer were prejudicial and inflammatory. Because any error in referring to the victim as a police officer at trial would have been known at the time of Hathaway’s direct appeal, this claim is also Knaffla-barred. Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

D. Constitutional Violations

Hathaway also argues that his trial violated his right to due process and equal protection, and that his punishment is cruel and unusual. Because, as with his offense tracking code claims, Hathaway has provided no factual or other support for these constitutional claims, we will not consider them here. Beltowski, 289 Minn. at 217, 183 N.W.2d at 564.

E. Denial of Right to Attend Postconviction Proceedings

Hathaway asserts that he was improperly denied the ability to attend the hearing on his first postconviction petition. Hathaway did not, however, have a right to attend that hearing. Effinger v. State, 380 N.W.2d 483, 487 (Minn.1986). Because Hathaway had no right to attend the hearing, we conclude that this claim has no merit.

F. New Evidence of Perjured Testimony

During Hathaway’s trial, William Dwyer, an admitted accomplice of Hathaway, was a key witness for the state. Hathaway now claims that newly discovered evidence — a plea agreement between Dwyer and Missouri authorities in a separate matter and a bartender’s 1994 statement to an investigator that contradicts a portion of Dwyer’s trial testimony — shows that Dwyer perjured himself when Dwyer testified against him at his trial.

Our review of the trial record indicates that Hathaway either knew or should have known of the details of Dwyer’s plea agreement at the time of trial, and certainly no later than the time of his first petition for postconviction relief. He should have also known about the bartender’s alleged statements before his first petition for postconviction relief was filed. At Hathaway’s trial, Dwyer was cross-examined extensively about his pending Missouri plea agreement. That plea agreement was accepted and Dwyer was sentenced pursuant to the agreement in December 1984. With respect to the bartender, the record indicates that by letter dated April 14, 1987, Hathaway was informed by his lawyer that he would not be raising any claims with respect to the bartender. The bartender’s 1994 statement was not materially different from the information considered by Hathaway’s lawyer in 1987 when he decided not to raise any claims involving the bartender. Because Hathaway knew or should have known of the bases for his perjury claim related to Dwyer by the time of his direct appeal and first posteonviction petition, that claim is barred under Knaffla.

G.Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a petitioner must “show that his attorney’s representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different.” Wilson v. State, 582 N.W.2d 882, 885 (Minn.1998). A claim of ineffective assistance cannot be based on matters of trial strategy, Leake v. State, 737 N.W.2d 531, 536 (Minn.2007), and an attorney’s failure to raise a particular claim will not constitute ineffective assistance if the attorney “could have legitimately concluded that he would not have prevailed” on that claim. Schneider v. State, 725 N.W.2d 516, 523 (Minn.2007).

Hathaway alleges that he was denied the effective assistance of counsel at his first postconviction hearing when his counsel failed to raise certain issues concerning Dwyer’s committing perjury at trial. This claim fails on the merits.

As noted above, Hathaway’s attorney declined to raise the perjury claim. In particular, the attorney observed that the proposed witness could not testify with any certainty to facts that would support the perjury claim. The decision not to raise the issue was a matter of strategy grounded in the conclusion that Hathaway could not prevail on the claim. Therefore, we conclude that Hathaway’s counsel was not ineffective because his performance did not fall below an objective standard of reasonableness.

II.

We read Hathaway’s appeal to also challenge the postconviction court’s refusal to appoint him counsel for this, his second postconviction proceeding. By statute, the state public defender must represent an indigent prisoner in a post-conviction proceeding “if the person has not already had a direct appeal of the conviction,” but, as to all others, such representation is optional. Minn.Stat. § 590.05 (Supp.2007). A petitioner’s right to counsel under the state constitution is satisfied by the assistance of counsel in one appeal. Deegan v. State, 711 N.W.2d 89, 98 (Minn.2006). Here, Hathaway was represented by counsel on direct appeal and thus had no right to counsel in this, his second postconviction proceeding. Therefore, the postconviction court did not err when it declined to appoint counsel for Hathaway.

Because the record conclusively shows that Hathaway’s claims lack merit, we hold that the district court did not abuse its discretion when it denied his postconviction petition without an evidentiary hearing.

Affirmed.

      . The facts and circumstances surrounding the killing and Hathaway’s subsequent arrest and conviction are set forth in this court's opinion on direct appeal and will not be repeated here except to the extent necessary to resolve the issues raised in this appeal.

      . The Knaffla rule has two limited exceptions, neither of which is applicable to the claims made here. The first is for claims so novel that their legal bases were not reasonably available to counsel at the time of direct appeal. Case v. State, 364 N.W.2d 797, 800 (Minn.1985). The second allows review when fairness so requires, unless the petitioner deliberately and inexcusably failed to raise the issue on direct appeal. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

      . We note that, to the extent that the offense tracking code is currently listed improperly on Hathaway’s Department of Corrections Annual Review Report, that issue is more properly addressed to the Department.

      . Notably, Hathaway’s attorney’s failure to raise the claim related to the bartender’s alleged statements in his first petition for póst-conviction relief forms the basis for Hathaway's ineffective assistance of counsel claim.

      . By a separate motion, Hathaway asked this court to appoint him counsel for this appeal. That motion was denied by order dated June 20, 2007.

      . While Hathaway had no right to counsel in his first postconviction proceeding, he nonetheless had the benefit of counsel in that proceeding.