This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-99-1205

Gale A. Rachuy,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 15, 2000
Affirmed
Amundson, Judge

Pine County District Court
File No. K4-91-126

Gale A. Rachuy, O.I.D. #100435, 1101 Linden Lane, Faribault, MN 55021 (pro se appellant)

Mike Hatch, Attorney General, Thomas Ragatz, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

John K. Carlson, Pine County Attorney, Pine County Courthouse, 315 Sixth Street, Suite 8, Pine City, MN 55063 (for respondent)

Considered and decided by Amundson, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges the district court’s denial of his post-conviction petition and motion for a new trial. Appellant contends that the state misrepresented the status of his petition to the federal district court in his federal habeas corpus petition proceedings when it claimed that appellant had failed to exhaust the state remedies available to him on two of his nine claims. Additionally, appellant seeks to have his current sentence reduced by the good time he accumulated on another sentence.

FACTS

Appellant, Gale A. Rachuy, was convicted of five counts of theft by swindle in Pine County, Minnesota, on September 11, 1991. The district court sentenced Rachuy as a career offender pursuant to Minn. Stat. § 609.152, subd. 3 (1990), to three ten-year sentences and two five-year sentences. Two of the ten-year sentences were to run consecutive with each other and a 146-month sentence Rachuy received for a conviction in Washington County. Rachuy challenged his sentences and we affirmed. The supreme court affirmed his conviction, but modified his sentence to five one-year sentences that were to run consecutive with each other and a sentence Rachuy received in Washington County. Rachuy also petitioned for a writ of habeas corpus in federal court on July 16, 1998, which was denied on February 2, 1999.

Rachuy filed a petition for post-conviction relief on February 17, 1999 requesting a new trial based on alleged misrepresentations made by the state during his habeas corpus proceedings. The post-conviction court denied Rachuy’s petition and June 4, 1999.

D E C I S I O N

I.

We will not disturb a post-conviction court’s decision to deny a new trial absent an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990). A federal court denied Rachuy’s petition for a writ of habeas corpus because he had not exhausted his state remedies. Rachuy petitioned for post-conviction relief on the basis that at the federal hearing, the state made material misrepresentations to the federal court. Specifically, Rachuy contends that the state incorrectly and intentionally represented to the federal district court that issues concerning false testimony at trial and the constitutionality of a search warrant were unexhausted.

However, even if the two issues were exhausted, Rachuy’s petition still contained unexhausted claims on which the federal court could have denied his petition, as the federal court did. The federal court found that Rachuy failed to exhaust some of the claims he raised in his habeas corpus petition. The court noted that Rachuy never raised the Eighth Amendment cruel and unusual punishment issue, nor had he raised his jury instruction claim in state court. Thus, the claims that the federal court found were unexhausted and on which it based its denial of Rachuy’s petition are not the same claims that Rachuy contends that the state incorrectly represented as unexhausted. Therefore, Rachuy is not entitled to a new trial on this basis.

II.

Rachuy contends that the sentence he received in Pine County for the five counts of theft by swindle should be reduced by the "good time" he has earned while completing his Washington County sentence. He further argues that his Pine County sentence is "indeterminate" and that this warrants application of his Washington County jail credit to his Pine County sentence.

Here, Rachuy’s sentence was modified by the Minnesota Supreme Court to a fixed sentence of five one-year consecutive terms. State v. Rachuy, 502 N.W.2d 51, 52 (Minn. 1993). Rachuy’s argument that his sentence is indeterminate is without merit. Additionally, in we note that when applying jail credit to consecutive sentences, credit should only be applied to the first sentence because to do otherwise would constitute double credit, defeating the purpose of consecutive sentencing. State v. Allen, 482 N.W.2d 228, 233 (Minn. App. 1992), review denied (Minn. Apr. 13, 1992).

Affirmed.