Because Defendant Alleged Sufficient Facts to Warrant Evidentiary Hearing, the Post Conviction court Abused its Discretion When it Denied the Petition Without a Hearing

State v. Nicks, Minn.S.Ct., 5/31/2013.  A jury convicted Mr. Nicks of the first degree murder of Johanna Hollis, and of the attempted first degree murder of her daughter, A.R.  The state’s case turned in large part on certain cell phone records that indicated that Mr. Nicks was in the vicinity of the shooting, and supported the claim made by two witnesses that Mr. Nicks had made threats to Hollis on the night of the murder.  These records show that he placed two calls to Hollis’s cell phone, but Mr. Nicks insisted that these calls went to voicemail, that he did not speak with Hollis that night, and that there were no threatening calls between Hollis and him.  Trial counsel sought the Hollis cell phone records but it does not appear that counsel got them.

Appellate counsel had a forensic expert examine Hollis’s cell phone.  This examination, Nicks alleged in his post conviction petition, revealed that Hollis could not have received the alleged threatening phone calls from Nick’s phone.  The post conviction court denied Nick’s petition without a hearing upon receipt of this information.  Mr. Nicks appeals directly from the trial and from the denial of post conviction relief, primarily asserting that trial counsel provided ineffective assistance as a result of not getting the cell phone records and conducting a forensic exam of Hollis’s phone.

Justice Paul Anderson concludes that Mr. Nicks is entitled to an evidentiary hearing on his ineffectiveness claim.  Obtaining Hollis’s cell phone records, rather than being a course of action that counsel considered and rejected, was a central part of his theory of the case and his strategy at trial.  It was hardly a “strategy” that remains unreviewable under Strickland.  When counsel fails to conduct a thorough investigation of facts that are so directly related to the theory of the case, that conduct falls below an objective standard of professional conduct that defendant’s are entitled to under the constitution.  Regardless whether counsel’s performance actually fell below this standard is not the question when deciding whether to grant an evidentiary hearing; rather, the question is whether the allegations conclusively fail to show such a fall.   

Chief Justice Gildea and Justice Dietzen dissented.

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