This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





David Rosales Bermudez,




Filed ­­­April 3, 2001


Harten, Judge


Kandiyohi County District Court

File No. K4-98-1300



Boyd A. Beccue, Kandiyohi County Attorney, 316 Southwest Fourth Street, Willmar, MN 56201; and


Mike Hatch, Attorney General, John B. Galus, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)


David Rosales Bermudez, #202307, M.C.F. St. Cloud Box-B, St. Cloud, MN 56302-1300 (appellant pro se)


            Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s summary denial of his two successive petitions for postconviction relief.  Because we see no abuse of discretion, we affirm.



            After a jury convicted appellant David Bermudez of kidnapping and third- and fifth-degree assault, he was concurrently sentenced to 88 and 36 months.  He previously challenged his convictions on direct appeal to this court asserting that the district court abused its discretion in excluding evidence of the victim’s prior car accident.  In a pro se brief, he also alleged breach of the state’s duty to disclose exculpatory material, insufficient evidence to convict, and ineffective assistance of counsel.  This court affirmed on all issues.  State v. Bermudez, No. C9-99-1113 (Minn. App. May 23, 2000).

            Appellant then sought postconviction relief in two successive petitions in the district court, alleging ineffective assistance of counsel and insufficient evidence to support the convictions for kidnapping and third-degree assault.  The postconviction court denied both petitions without a hearing.   Appellant now challenges that denial.[1] 



            Absent an abuse of discretion, a postconviction court’s decision will not be disturbed on appeal.  McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).  

            The court may summarily deny a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the court of appeals or the supreme court in the same case.


Minn. Stat. § 590.04, subd. 3 (2000).  Noting that all appellant’s claims were previously raised in and decided by this court on direct appeal, the postconviction court summarily dismissed them.  We see no abuse of discretion in that dismissal.

            Moreover, Minn. Stat. § 590.01, subd. 1 (2000), requires that a petition for postconviction relief be based either on a claim that the conviction violates the petitioner’s rights under the state or federal constitutions or laws or on a claim that scientific evidence unavailable at trial establishes the petitioner’s actual innocence.  Appellant does not allege the existence of scientific evidence unavailable at trial.  And we agree with the postconviction court that appellant’s only constitutional claim, that appellant’s attorney denied him Equal Protection or Due Process, is without merit because appellant’s attorney was not acting in a governmental capacity.  

Appellant reiterates his argument that the exclusion of the victim’s medical records following a car accident deprived appellant of his rights to present an effective defense and to confront his accuser.  But this court previously determined in appellant’s direct appeal that the records pertaining to the victim’s car accident had little, if any, relevance to appellant’s case and that their exclusion did not deprive him of his right to present an effective defense; nor did the exclusion deprive appellant of his right to confrontation, because the accident was collateral to the issues in the case and evidence of it was not admissible for impeachment purposes.  The postconviction court did not abuse its discretion in summarily dismissing appellant’s request for postconviction relief insofar as it pertained to this issue.

            Finally, in his postconviction petitions and associated appellate brief, appellant argues that the state breached its duty to disclose exculpatory material, that there was insufficient evidence to support appellant’s conviction, and that appellant was prejudiced by ineffective assistance of counsel.  Once again, this court has already addressed and decided these issues.  State v. Bermudez, No. C9-99-1113 (Minn. App. May 23, 2000).  The postconviction court did not abuse its discretion in summarily denying appellant’s motions for postconviction relief.


[1] In both his brief and his reply brief, appellant argues for the first time on appeal that he was prejudiced by: a police officer’s hearsay testimony, leading questions, unsupported assertions, and counsel’s opening and closing statements.  None of these challenges is supported by material not available to appellant at the time of trial.  His failure to raise these issues to the district court precludes him from raising them now.  See Robinson v. State, 567 N.W.2d 491, 494 n.2 (Minn. 1997) (a party may not raise issues for the first time on appeal).  Nor is this court free to address what was not presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).