Fox v. State
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Fox v. State
Opinion of the Court
A Washington County jury found petitioner Thomas Fox guilty of first-degree premeditated murder and first-degree felony murder for the December 2011 stabbing death of Lori Baker. The district court sentenced Fox to life imprisonment without the possibility of release on the first-degree premeditated murder conviction. Fox appealed, and on June 15, 2015, we affirmed his convictions. State v. Fox ,
FACTS
The State charged Fox with first-degree premeditated murder and first-degree felony murder for stabbing his girlfriend, Lori Baker, 48 times and stealing her debit card. Fox ,
On direct appeal, Fox's counsel briefed four arguments: (1) Fox's Miranda rights were violated; (2) his statements to police should have been suppressed; (3) the district court provided an erroneous jury instruction regarding circumstantial evidence; and (4) the State did not present sufficient evidence to support his convictions. Fox ,
On November 28, 2016, Fox filed a pro se postconviction petition, alleging six grounds for postconviction relief: (1) the evidence was insufficient to support the conviction; (2) Fox received ineffective assistance of trial and appellate counsel; (3) the State's alleged failure to preserve exculpatory evidence violated his due process rights; (4) the search warrant for a DNA sample and fingernail samples was constitutionally defective, violated his Fourth Amendment rights, and was not addressed though raised in his direct appeal; (5) that Brady violations infringed his due process *433rights and Sixth Amendment right to confront witnesses; and (6) that his trial counsel's failure to challenge an order for restitution constitutes ineffective assistance of counsel. Fox also requested relief based on any other grounds the court may deem appropriate, "even though not specifically raised by the petitioner." The postconviction court concluded that the petition and the record conclusively showed that Fox was not entitled to any relief and rejected the petition without holding an evidentiary hearing. Fox appealed from this order.
ANALYSIS
We review a court's postconviction decisions for an abuse of discretion. Moua v. State ,
We will not consider claims that are "based on grounds that could have been raised on direct appeal of the conviction or sentence."
I.
The arguments Fox raises in his brief fall into three categories-arguments that are barred because we addressed them on direct appeal, arguments that are barred because Fox knew or should have known of their factual basis at the time of his direct appeal, and arguments that are not procedurally barred but fail as a matter of law. We address each category of arguments in turn.
A.
The first category of claims are those we have already addressed on direct appeal. Claims raised on direct appeal "will not be considered upon a subsequent petition for postconviction relief." Knaffla ,
Sufficiency of the Evidence
Fox argues that the evidence presented was insufficient to prove the elements of either first-degree premeditated murder or first-degree felony murder. We expressly addressed and rejected Fox's assertions that there was insufficient evidence of intent or premeditation in his *434direct appeal. Fox ,
B.
The second category of claims are those that Fox knew or should have known of at the time of his direct appeal. Because he did not raise them in his direct appeal, these claims are barred under
Alleged Brady Violations
Fox argues that the State violated Brady v. Maryland ,
Alleged Witness Perjury
Fox generally alleges that some of the State's witnesses perjured themselves and offered false testimony. These allegations relate to statements that are part of the trial record. Knaffla bars consideration of claims based on evidence in the trial record because such claims were known, or should have been known, at the time of direct appeal. Wright v. State ,
Validity of the Search Warrant
After Fox's arrest, police executed a search warrant for his person that allowed them to obtain DNA and fingernail samples. Fox now argues that this search warrant was deficient. This claim is Knaffla -barred because Fox reasonably should have been aware of any alleged defects in the search warrant at the time of his direct appeal. See Azure v. State ,
Alleged Violation of the Prompt Arraignment Rule
In addition to challenging the validity of the search warrant, Fox claims that, because he was initially arrested on December 29, 2011, but not arraigned until April 20, 2012, police violated *435Minn. R. Crim. P. 4.02, subd. 5(1). This rule requires arrestees be brought before a judge "without unnecessary delay."
Further, Fox knew or should have known the dates that he was arrested and arraigned, and does not offer any new information or explanation of why he could not have raised this issue during his direct appeal. Thus, this claim is also barred. See
Fox's Competency to Stand Trial
Fox further alleges that his trial counsel erred by not investigating whether he was competent to stand trial. On May 8, 2013, Fox filed a number of "objections" with the trial court, including his belief that his counsel was ineffective for failing to have him psychologically assessed. Because Fox knew of and could have raised this alleged issue in his direct appeal, it is now barred. Knaffla ,
Allegedly Staged Photograph
Fox also argues that the Bureau of Criminal Apprehension ("BCA") created a false exhibit. According to Fox, the kitchen drawer was not ajar, as depicted in trial exhibit 14. Rather, he alleges, the BCA pulled the drawer ajar and then took a picture. Fox has submitted photographs as proof that the drawer was allegedly shut. To refute the BCA's photos, Fox's photos would need to have been taken on December 27 or December 28, 2011. This would mean that Fox was aware of these photos before his trial, and could have raised the issue in his direct appeal. This claim is therefore barred.
Alleged Exclusion of Grand Jurors Based on Race
Fox asserts that the State excluded grand jury members based on race. Nothing in the grand jury transcript suggests that the attorneys excluded any grand jurors for any reason, racial or otherwise. In fact, nothing in the grand jury transcript provides any insight about any grand juror's race. Fox was not present at the grand jury proceedings, and has offered no evidence of a racially biased grand jury selection. Fox has also not offered any excuse or explanation for his failure to raise the issue during his direct appeal; nor does he claim to have learned of new evidence after his appeal. This claim is therefore also barred.
Conflicts of Interest
Fox also argues that he was prejudiced by his counsel's conflict of interest arising from representing multiple defendants. But Fox, the sole defendant in his case, has not identified any actual conflict. Instead, he claims that a conflict existed because the public defenders assigned to his case were also responsible for other cases. Even assuming there is any merit to this argument, Fox has not explained why he could not have raised this issue in his direct appeal. This claim is therefore also barred.
Failure to Secure DNA Testing
Finally, Fox alleges that his trial counsel was ineffective for failing to seek DNA testing of the blood-soaked comforter found at the crime scene. According to Fox, it was prejudicial to allow the jury to believe that the mix of his and Baker's DNA on the comforter was from their *436blood, instead of Baker's blood and Fox's semen or saliva. Fox raised this objection with the trial court, was aware of the claim, and could have raised this issue on direct appeal. Thus, this claim is also barred.
C.
The third category of claims Fox raises are those that are not procedurally barred, but fail as a matter of law. Postconviction claims that fail as a matter of law do not require an evidentiary hearing. See State v. Vang ,
Ineffective Assistance of Appellate Counsel
Fox also claims that he received ineffective assistance from his appellate counsel. To succeed on this claim, Fox must "overcome the 'presumption that counsel's performance fell within a wide range of reasonable' representation." Wright ,
Fox argues that his appellate counsel was ineffective because she did not raise an ineffective-assistance-of-trial-counsel argument. To prevail on this claim, Fox must first establish that his trial counsel was actually ineffective. Zenanko v. State ,
Fox also argues that his appellate counsel was ineffective for filing a direct appeal from his conviction instead of a petition for postconviction relief. He argues that filing a postconviction petition first would have allowed him to "preserve all of the trial record." But the substantial trial record in this case has been preserved. Further, Fox's appellate counsel is entitled to make reasonable strategic decisions. See Dobbins v. State ,
Finally, Fox argues that counsel was ineffective for failing to "go through the entire discovery." Fox does not state which counsel-trial or appellate-was allegedly ineffective, or provide any detail regarding counsel's failure to "go through" discovery. Even construing his petition liberally, Fox simply does not allege sufficient facts to conclude what occurred (or did not occur) or that he was prejudiced by the alleged failure. See Patterson v. State ,
CONCLUSION
For the foregoing reasons, we affirm the decision of the postconviction court.
Affirmed.
THISSEN, J., not having been a member of this court at the time of submission, took no part in the consideration or decision of this case.
We recited the facts underlying Fox's conviction in Fox ,
Fox argues we should consider his petition under the interests-of-justice exception to Knaffla . We have not addressed the impact of the 2005 amendments to
Reference
- Full Case Name
- Thomas James FOX v. STATE of Minnesota
- Cited By
- 13 cases
- Status
- Published