2009-M-113             Charles Ray Barnes, Petitioner, vs. State of Minnesota, Respondent, and Charles Ray Barnes, Petitioner, vs. State of Minnesota, Respondent.

A defendant does not have a constitutional right to the assistance of counsel in asserting a post-conviction claim when that defendant had the benefit of counsel on direct appeal.  

On February 9, 2005, petitioner Charles Ray Barnes was convicted of first-degree domestic abuse murder for strangling his wife.  and sentenced to life in prison.  After his conviction, Barnes filed a direct appeal with the assistance of counsel. 

Barnes also filed a pro se supplemental brief as part of his direct appeal.  We affirmed Barnes’ conviction, rejecting each ground for appeal, with the exception of one pro se claim of ineffective assistance of counsel.  We did not reach the merits of the pro se ineffective assistance of counsel claim because additional facts were needed to review the issue.  

Following his direct appeal, Barnes filed a petition for post-conviction relief.  The Office of the Public Defender declined to represent Barnes on the post-conviction petition.  Following the evidentiary hearing, the post-conviction court denied Barnes’ petition for relief.  Barnes filed a motion for reconsideration, arguing, among other things, that he had a constitutional right to the assistance of counsel on his post-conviction claim.  The court denied the motion.  Barnes appeals from the court’s decisions and focuses on the question of whether he is entitled to the assistance of counsel on his post-conviction claim.  We affirm.  

Barnes argues that he has a right to counsel during his post-conviction hearing.  Barnes’ argument is based on the Minnesota Constitution and the rationale we articulated in Knaffla and Deegan.  He asserts that the Minnesota Constitution and our case law guarantee a criminal defendant the right to the assistance of counsel during first review by post-conviction proceedings.  Barnes argues that because our court was unable to resolve his ineffective assistance of counsel claim on direct appeal, that claim has not had the one meaningful review guaranteed by Deegan.  We conclude that Barnes’ case is distinguishable from Deegan and Barnes does not have a right to counsel on his post-conviction claim.  

Under Minnesota law, a post-conviction claim allows post-conviction claims in two circumstances:

(1) when federal or state constitutional issues or violations of law are raised, or (2) upon acquisition of scientific evidence that establishes innocence and was not available at trial.  Relief is predicated on compliance with the procedural requirements set forth in chapter 590.  But when “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 post-conviction relief.”   

Under Knaffla a post-conviction claim is not barred if: (1) “the claim ‘is so novel that the legal basis was not available on direct appeal,’ ” and (2) “the petitioner did not ‘deliberately and inexcusably’ ” fail to raise the claim on direct appeal and “ ‘fairness requires its consideration.’ ”  Further, a claim of ineffective assistance of trial counsel “is not barred by Knaffla if it cannot be determined from the district court record and requires additional evidence.”  In Barnes’ direct appeal, we determined that additional facts were needed to determine if the failure to present testimony from a medical expert was ineffective assistance of trial counsel, and so we determined that Barnes’ claim was better suited to a post-conviction proceeding.

Under Minnesota law, it is permissive, but not mandatory, that the state public defender represent an indigent defendant “pursuing a post-conviction remedy” provided that the defendant has had a direct appeal.  Barnes argues, however, that because of the procedural posture of his case, he is constitutionally entitled to post-conviction counsel.  Given that Barnes’ ineffective assistance of counsel claim was brought pro se and could not be reviewed on direct appeal, Barnes argues the claim has

not been given a “meaningful review.”  

Barnes’ argument largely derives from our decision in Deegan.  In Deegan, we held that Article I, section 6 of the Minnesota Constitution guaranteed a criminal defendant “one review of a criminal conviction” with the assistance of counsel, “whether by direct appeal or a first review by post-conviction proceeding.”  The precise issue addressed in Deegan was whether Minn. Stat. § 590.05 violated the United States or Minnesota Constitutions because the statute, provides that a petitioner who pleaded guilty, received no greater than the presumptive sentence, and did not pursue a direct appeal is not entitled to representation by the state public defender in a post-conviction petition if the state public defender reviews the case and determines that there is no basis to appeal the conviction or sentence. 

We ultimately concluded that section 590.05 violated the Minnesota Constitution.  In reaching the result in Deegan, we held that under the Minnesota Constitution “a defendant’s access to the other protections afforded in criminal proceedings cannot be meaningful without the assistance of counsel.”

Barnes argues that a post-conviction ineffective assistance of counsel claim is the type of proceeding that is meaningless absent the assistance of counsel.  But the emphasis in Deegan is on the right to assistance of counsel for one meaningful review of a criminal conviction, not a right to the assistance of counsel on each particular claim brought.  The Minnesota Constitution guarantees the right to counsel for one review of a criminal conviction, “whether by direct appeal or a first review by post-conviction proceeding.”  Subsequent case law reiterates that a defendant who has been represented by counsel on direct appeal, has no right to counsel in a subsequent

post-conviction proceeding. 

Barnes was entitled to and received the assistance of counsel on his direct appeal.  Therefore, Barnes has had the one meaningful review of his criminal conviction guaranteed by Deegan.  Our conclusion on direct appeal that Barnes failed to develop the facts necessary to review his pro se ineffective assistance of trial counsel claim based on the failure to present any defense medical expert testimony, does not alter this analysis.   Had Barnes wanted to develop his ineffective assistance of counsel claim during direct appeal, he had the opportunity to do so.  Barnes could have asked to stay his direct appeal

in order to pursue post-conviction evidentiary proceedings.  This would have allowed Barnes to develop the evidence necessary to allow our court to review the claim during the direct appeal. 

Nonetheless, the fact that, following a direct appeal in which a defendant was represented by counsel, the defendant is able to develop a post-conviction claim does not renew the defendant’s right to counsel under the Minnesota Constitution.

We hold that Barnes’ right to counsel under Deegan has been satisfied and, as a result, he does not have a right to counsel in asserting his post-conviction claim.  We deny Barnes’ request that we remand his claim for a new post-conviction evidentiary hearing and affirm the post-conviction court’s determinations on Barnes’ post-conviction claims.  

               Paul Anderson (Magnuson, Page, Meyer, Barry Anderson, Gildea, and Dietzen)

[MURDER]