Lopez-Minjarez v. Kelly

Court Affirms Denial of Post-Conviction Relief Where Counsel’s Errors Not Prejudicial

Petitioner was convicted of felony murder and later sought post-conviction relief, alleging four assignments of error based on claims of inadequate and ineffective assistance of counsel. He asserted that his first trial counsel prejudiced him by referencing previously excluded statements; that retrial counsel submitted a legally incorrect jury instruction on withdrawal; and that appellate counsel failed to assign error to the trial court’s refusal to give that withdrawal instruction.

The Court of Appeals affirmed the post-conviction court’s denial of relief. The court held that petitioner failed to establish deficient performance by any of his attorneys. First, the court concluded that the previously excluded statements were not prejudicial and may have benefitted petitioner. Second, the trial court’s refusal to give a withdrawal instruction was not based on the incorrect legal theory proposed by retrial counsel, and the trial court was not required to give such an instruction in the context of felony murder. Finally, the record showed that appellate counsel had, in fact, both raised and preserved the withdrawal issue on appeal. Accordingly, the Court of Appeals concluded petitioner failed to show prejudice or error and affirmed.