Cortez Deon Banks v. State of Minnesota

• Court: Court of Appeals of Minnesota
• Decided: June 15, 2026
• Docket: a251575
• Status: Unpublished

Opinion

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA IN COURT OF APPEALS A25-1575

Cortez Deon Banks, petitioner, Appellant,

vs.

State of Minnesota, Respondent.

Filed June 15, 2026 Affirmed Harris, Judge

Hennepin County District Court File No. 27-CR-21-17568

Cortez Deon Banks, Lino Lakes, Minnesota (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Mark V. Griffin, Assistant County Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Bond, Presiding Judge; Reyes, Judge; and Harris, Judge.

NONPRECEDENTIAL OPINION

HARRIS, Judge

Appellant challenges the district court’s denial of his petition for postconviction

relief, arguing that he is entitled to a new trial because of ineffective assistance of appellate

counsel. Appellant contends that his appellate counsel was ineffective during his first

appeal because he did not argue that a clerical error in the jury’s verdict form and instances of prosecutorial misconduct prejudiced his right to a fair trial. Because his appellate

counsel’s performance did not fall below the objective standard of reasonableness, we

affirm.

FACTS

In the early morning hours of September 20, 2021, police officers responded to a

911 call on which multiple people were heard screaming. The officers entered the

apartment and, in one of the bedrooms, found appellant Cortez Deon Banks lying naked on

top of victim K.A., Banks’s ex-girlfriend. K.A.’s mother, G.W., who is paralyzed from the

waist down, was next to K.A. in the same bed and screaming, “he killed her.” Banks’s and

K.A.’s two-year-old child was “standing on the side of the bed, screaming and crying.”

The officers observed that K.A., G.W., Banks, and the two-year-old child were all “covered

in blood.” Following a dispute between Banks and K.A., K.A. ran into G.W.’s bedroom

and attempted to lock the door. Banks “pinned [K.A.] on [G.W.’s] bed, and began ‘having

sex’ with [K.A.] while also stabbing her with a knife.” As Banks stabbed and raped K.A.,

he yelled, “I’m going to kill you b-tch” and “Die b-tch!” G.W. sustained injuries as she

“attempted to block the knife.” K.A. was stabilized at the hospital and regained

consciousness.

Respondent State of Minnesota charged Banks with attempted second-degree

intentional murder, first-degree criminal sexual conduct (using force), first-degree assault-

harm, second-degree assault with a dangerous weapon, and violation of an order for

protection (OFP). See Minn. Stat. §§ 609.19, subd.1(1), .221, subd. 1, .222, subd. 1, .342,

subd. 1(c)(ii), and 518B.01, subd. 14(d)(1) (2020). The matter proceeded to a jury trial,

2 and Banks informed the district court and the state that he intended to assert a self-defense

claim. At trial, the state presented testimony from the responding officers, the sexual-

assault nurse examiner, and G.W. Banks testified on his own behalf.

After both parties rested, the district court instructed the jury that, “First one is Count

1, attempted murder in the second degree with intent. Under Minnesota law, whoever

attempts to intentionally cause the death of another person but without premeditation is

guilty of attempted murder in the second degree.” In explaining the elements of this charge,

the district court stated that “the State must prove [Banks] attempted to cause the death of

[K.A.].”

The jury found Banks guilty of attempted second-degree murder (count 1), violation

of an OFP (count 3), second-degree assault (count 5), and third-degree assault (count 6). 1

The district court convicted him on all four counts and sentenced him to 200 months in

prison for second-degree attempted murder, 32 months for violating an OFP, and 21

months for second-degree assault with a dangerous weapon, to be served consecutively.

At his sentencing hearing, Banks’s counsel informed the district court and the state

of an error in the verdict form for attempted second-degree murder. The verdict form read

“Murder in the Second Degree” instead of “Attempted Murder in the Second Degree.”

Therefore, Banks argued that the jury’s guilty verdict on that count should be vacated. The

state argued that the omission amounted to a clerical error and reminded the district court

that throughout the entire case, the state described the charged crime as an attempt to kill.

1 Banks was acquitted of first-degree criminal sexual conduct and first-degree assault.

3 The state also argued that clerical mistakes may be corrected by the district court at any

time under Minnesota Rule of Criminal Procedure 27.03, subdivision 10.

The district court determined that the omission of the attempt modifier in the verdict

form resulted from a clerical error and that it did not prejudice Banks. It explained that

had the jury “considered ‘murder’ rather than ‘attempted murder’ the clerical mistake

would have prejudiced the State because it would have added an element impossible for it

to prove; specifically, the death of a victim who indisputably did not die.” Furthermore,

each juror was provided with a copy of the jury instructions that “clearly and properly laid

out the charge for count one, which was ‘attempted murder in the second degree.’” The

district court concluded that the clerical error was harmless and lawfully corrected it to

reflect that Banks was charged with “Attempted Murder in the Second Degree.”

In May 2022, Banks filed a direct appeal challenging his convictions, arguing that

the district court erred by (1) permitting hearsay testimony by the sexual-assault nurse

examiner, (2) sentencing him for attempted murder and violating an OFP because the

offenses arose from a single behavioral incident, and (3) denying his request for a mistrial

after an alleged discovery violation by the state. In his pro se supplemental brief, Banks

alleged that he received ineffective assistance of counsel because his counsel (1) did not

object to or move to suppress the inspector’s rebuttal testimony relaying what Banks had

said during his custodial investigation, (2) failed to hire an expert witness, and (3) failed to

adequately represent him at sentencing by deciding not to interview his family members or

seek “experts to further analyze his mental state.” In July 2023, this court affirmed. State

4 v. Banks, A22-0745, 2023 WL 4862922, at *7-8 (Minn. App. July 31, 2023), rev. denied

(Minn. Oct. 25, 2023).

Approximately two years later, Banks filed a petition for postconviction relief under

Minnesota Statutes section 590.01 (2024), claiming ineffective assistance of appellate

counsel. He contended that his appellate counsel failed to raise, in his view, two stronger

grounds for relief: (1) the clerical error in the verdict form, and (2) allegations of

prosecutorial misconduct. Banks additionally requested a hearing to resolve his claims.

The state opposed the petition, arguing that the verdict-form error was procedurally barred,

and that Banks’s counsel was not required to raise all possible defenses.

The postconviction court denied Banks’s petition without an evidentiary hearing. It

determined that Banks’s claim of ineffective assistance of counsel was not procedurally

barred but that his claims lacked merit. The district court also concluded that Banks raised

no credibility issues that would require a hearing. Banks appeals.

DECISION

I. The postconviction court did not abuse its discretion when it denied Banks’s petition for postconviction relief because he failed to demonstrate that his appellate counsel’s performance fell below an objective standard of reasonableness.

Banks argues that the district court abused its discretion by denying his petition for

postconviction relief due to ineffective assistance of appellate counsel. He contends that

his appellate counsel on direct appeal was ineffective by failing to raise the verdict-form

error and a claim of prosecutorial misconduct. Each argument is addressed in turn.

5 “We review the summary denial of a petition for postconviction relief for an abuse

of discretion.” El-Shabazz v. State, 984 N.W.2d 569, 573 (Minn. 2023). “A

[postconviction] court abuses its discretion when it has exercised its discretion in an

arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made

clearly erroneous factual findings.” Id. (quotation omitted). The postconviction court’s

factual findings are reviewed for clear error, and its legal conclusions are reviewed de novo.

Id. However, “[b]ecause claims of ineffective assistance of counsel are mixed questions

of law and fact, we review the postconviction court’s legal conclusions on such questions

de novo.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).

The United States and Minnesota Constitutions guarantee a criminal defendant “the

right to effective assistance of counsel.” Taylor v. State, 887 N.W.2d 821, 823 (Minn.

2016) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To succeed on an

ineffective-assistance-of-counsel claim, Banks needed to satisfy the two-pronged

Strickland test. Strickland, 466 U.S. at 687; Peltier v. State, 946 N.W.2d 369, 372 (Minn.

2020) (applying Strickland test to a postconviction petition alleging ineffective assistance

of counsel). Under this test, Banks must show that “(1) his attorney’s performance fell

below an objective standard of reasonableness, and (2) a reasonable possibility exists that

the outcome would have been different, but for counsel’s errors.” State v. Mosley, 895

N.W.2d 585, 591 (Minn. 2017) (quotation omitted). If one of these prongs is not satisfied,

we may dispose of the claim without considering the other prong. Peltier, 946 N.W.2d at

372.

6 The Minnesota Supreme Court has held that an “appellate counsel’s failure to raise

meritless claims does not constitute deficient performance.” Schleicher v. State, 718

N.W.2d 440, 449 (Minn. 2006). Additionally, an appellate counsel “has no duty to raise

all possible issues, and may choose to present only the most meritorious claims to the

court.” Zornes v. State, 880 N.W.2d 363, 371 (Minn. 2016); see also Wright v. State, 765

N.W.2d 85, 91 (Minn. 2009) (“Counsel does not act unreasonably by not asserting claims

that counsel could have legitimately concluded would not prevail.”). Notably, “[w]e give

trial counsel wide latitude to determine the best strategy for the client.” Nicks, 831 N.W.2d

at 506; see State v. Rhodes, 657 N.W.2d 823, 844 (Minn. 2003) (stating that an appellate

court’s “scrutiny of counsel’s performance must be highly deferential”) (quotation

omitted). And general assertions of error without pointing to specific facts in the record

are inadequate to show ineffective assistance of counsel. State v. Miller, 666 N.W.2d 703,

717-18 (Minn. 2003).

With these principles in mind, we consider Banks’s first argument that his appellate

counsel should have raised the verdict-form error on direct appeal.

Here, the postconviction court determined that Banks’s appellate counsel’s decision

not to raise the clerical error on appeal would not have led to a different result. It reasoned

that “[a]t no point in the trial did anyone allege the victim of count 1 was dead.” Although

K.A. did not testify, the parties presented evidence and made arguments indicating that

K.A. survived the incident. In fact, Banks testified that he contacted her “600 hundred

times or something” and sent her letters. The prosecutor’s opening and closing arguments

reflected that the state had charged Banks with “attempted murder,” and Bank’s trial

7 counsel even reminded the jury during closing argument that Banks was charged with

attempted murder. The postconviction court thus concluded that “it was not unreasonable

for [his] appellate attorney to choose not to raise that issue in this case.”

The postconviction court did not err when it determined that Banks’s appellate

counsel did not act unreasonably by deciding not to pursue the verdict-form-clerical-error

argument. From opening statements through closing argument and sentencing, the record

reflects that Banks was charged with attempted second-degree murder, and the jury was

instructed as such. And, notably, Banks was convicted and sentenced based on attempted

murder. Neither the prosecutor nor Banks’s defense counsel at trial noticed the omission

of the word “attempted” in the verdict form at the time. It was only because of a news

article that described Banks being found guilty of murder that the parties discovered the

inconsistency. And the district court subsequently corrected the clerical error in a written

order. In short, the verdict-form error would have lacked merit on direct appeal, and so

appellate counsel’s decision not to raise this argument did not fall below the objective

standard of reasonableness.

II. Banks waived his inadequately briefed prosecutorial-misconduct argument.

Banks also asserts a claim of prosecutorial misconduct. But he does not identify

any specific instance of alleged misconduct or develop any argument supporting the claim.

We do not assume error on appeal. See State v. Fleming, 869 N.W.2d 319, 329 (Minn.

App. 2015) (citing Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949) (stating that “on appeal

error is never presumed” (quotation omitted)), aff’d, 883 N.W.2d 790 (Minn. 2016). Mere

assertions of error without supporting authority or argument are inadequately briefed and

8 are waived unless prejudicial error is obvious on mere inspection. State v. Andersen, 871

N.W.2d 910, 915 (Minn. 2015). Because Banks inadequately briefed this issue, we decline

to address it. See McKenzie v. State, 583 N.W.2d 744, 746 n.1 (Minn. 1998) (applying the

rule that arguments not briefed are waived in an appeal in which the appellant “allude[d]

to” an issue but “fail[ed] to address them in the argument portion of his brief.”). 2

Banks fails to show that the outcome of his case would have been different had his

appellate counsel pursued either the verdict-form error or the allegations of prosecutorial

misconduct during his direct appeal. Given the wide discretion we afford attorneys in trial

strategy and the presumption of reasonable professional assistance, State v. Jones, 392

N.W.2d 224, 236 (Minn. 1986), Banks’s ineffective-assistance-of-counsel claim fails. The

postconviction court’s findings are supported by the record, and its denial of Banks’s

petition for relief was not an abuse of discretion. Because Banks has not satisfied the first

Strickland prong, we need not consider the second prong.

Accordingly, we reject all of Banks’s arguments challenging his conviction.

Affirmed.

2 We have reviewed the claims Banks made in the postconviction petition and discern no error in the district court’s determination that appellate counsel did not act unreasonably by not raising claims of prosecutorial misconduct on direct appeal.