This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-36

 

Tony D. Jackson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 17, 2001

Affirmed

Lansing, Judge

 

 

Washington County District Court

File No. K2972580

 

Tony D. Jackson, MCF-Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

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

 

Doug Johnson, Washington County Attorney, Michael C. Hutchinson, Assistant County Attorney, Washington County Government Center, 14949 62nd Street North, Stillwater, MN 55082 (for respondent)

 

††††††††††† Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

 

 

 

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† On appeal from an order denying his petition for postconviction relief, Tony Jackson argues that he was denied the effective assistance of appellate counsel and that the district court violated his right to due process by sentencing him as a patterned sex offender without submitting to the jury facts that resulted in an increased penalty.† Jackson also raises several claims of trial error.† Because the district court did not abuse its discretion in denying Jackson postconviction relief, we affirm.

FACTS

††††††††††† In 1997, the state charged Tony Jackson with two counts of first-degree criminal sexual conduct in violation of Minn. Stat. ß 609.342, subds. 1, 2 (1996), two counts of first-degree burglary in violation of Minn. Stat. ß 609.582, subd. 1 (1996), and one count each of false imprisonment and aggravated assault.† The charges stemmed from two separate incidents of sexual assault.† A jury convicted Jackson of the charges stemming from the first incident but was unable to reach a unanimous verdict on the charges stemming from the second.

On the sexual assault count for which Jackson was convicted, the court sentenced him as a patterned sex offender to 182 months in prison, a double durational departure from the presumptive sentence.† In his direct appeal from judgment of conviction and sentence, Jackson challenged the district courtís departure from the presumptive sentence and its denial of a Schwartz hearing.† This court affirmed.† State v. Jackson, 596 N.W.2d 262 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999).

In November 2000, Jackson filed a petition for postconviction relief, claiming that he was denied the effective assistance of appellate counsel and that the length of his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).† Jackson also claimed that the extensive publicity surrounding his trial had deprived him of his right to a serene and calm trial, that the district court failed to instruct the jury on lesser-included offenses, that the victimís in-court identification was prejudicial and denied him due process, that the district court abused its discretion in denying his request for a change of venue, and that the previous claimed errors taken together violated his due-process rights and caused the trial to be fundamentally unfair.

The postconviction court denied Jacksonís petition, reasoning that because Jackson either had raised the claims on appeal or knew the legal basis for those claims at the time of the appeal, all of Jacksonís claims were procedurally barred.† With respect to Jacksonís claim of ineffective assistance of appellate counsel, the district court concluded that Jackson had failed to allege facts that would entitle him to relief.† This appeal followed.

DECISION

††††††††††† A petitioner seeking postconviction relief must establish by a fair preponderance of the evidence facts that warrant reopening a case.† State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).† The scope of this courtís review is limited to whether the record contains sufficient evidence to sustain the postconviction courtís findings.† State v. Doppler, 590 N.W.2d 627, 632 (Minn. 1999).† We will not reverse the postconviction courtís decision absent an abuse of discretion.† Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

Claims raised on direct appeal and claims known but not raised will not be considered on a subsequent petition for postconviction relief unless the claims are so novel that their legal basis was not reasonably available to counsel at the time the direct appeal was taken, or the petitioner did not deliberately or inexcusably fail to raise the claims on appeal and fairness requires that they be considered.† Id. at 251.

Jackson first argues that he was denied the effective assistance of appellate counsel because counsel ďfailed to argue * * * clear procedural errors made by the trial court and the trial counsel.Ē† Relying on the Supreme Courtís recent decision in Glover v. United States, 531 U.S. 198, 121 S. Ct. 696 (2001), Jackson also argues that counselís failure to object to an error of law in the calculation of his sentence constituted ineffective assistance.† Jacksonís claims lack merit.

To prevail on a claim of ineffective assistance of counsel, a petitioner must show by a preponderance of the evidence that his counselís performance was so deficient that it fell below an objective standard of reasonableness.† A petitioner must also show that his counselís performance so prejudiced him at trial that a different outcome would have resulted but for his counselís error.† Dukes, 621 N.W.2d at 252.† The allegations underlying an ineffective-assistance claim must be more than argumentative assertions without factual support.† Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).† Because Jackson has made only a general and unsupported assertion that his appellate counsel failed to raise procedural errors and has failed to identify any specific procedural error, the district court properly concluded that Jackson alleged no facts that would warrant postconviction relief.

Likewise, Jackson has failed to identify any legal error in sentencing that would provide a basis for his assertion that his appellate counsel ineffectively represented him by neglecting to challenge the calculation of his sentence.† Cf. Glover, 531 U.S. at 120, 121 S. Ct. at 701 (counselís failure to argue for the grouping of certain offenses under the sentencing guidelines, a failure that resulted in a six- to twenty-one-month increase in a prison sentence, constituted ineffective assistance irrespective of the amount by which the sentence was increased).

Jackson next argues that the district court violated the Supreme Courtís ruling in Apprendi by sentencing him as a patterned sex offender without submitting to the jury facts that resulted in an increased penalty.† See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63 (holding that ď[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubtĒ) (emphasis added).† Assuming for the sake of argument that Apprendi may be applied retroactively, the district court did not violate Apprendi because Jacksonís sentence, although double the presumptive sentence, did not exceed the statutory maximum penalty for first-degree criminal sexual conduct.† The court sentenced Jackson to 182 months; the maximum statutory penalty for first-degree criminal sexual conduct is 360 months.† See Minn. Stat. ß 609.342, subd. 2 (1996).

Jacksonís remaining claims relating to pretrial publicity, jury instructions, the victimís in-court identification, and venue were either raised in the direct appeal or were known and could have been raised.† Jackson, 596 N.W.2d at 265-67.† Furthermore, the arguments lack a factual or legal basis that would support reopening his case.† The postconviction court thus properly denied Jacksonís petition for postconviction relief.

Affirmed.