This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-01-1694

 

 

Alveto Rivera, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 25, 2002

Affirmed
Klaphake, Judge

 

Ramsey County District Court

File No. K096719

 

Alveto Rivera, #187428, MCF Ė Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN† 55767 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 West Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

 

††††††††††† Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Hanson, Judge.


U N P U B L I S H E D†† O P I N I O N

KLAPHAKE, Judge

††††††††††† Pro se appellant Alveto Rivera challenges the postconviction courtís order denying his petition without an evidentiary hearing.† Because Rivera raised or should have raised these issues on direct appeal, we conclude that the district court did not abuse its discretion and affirm.

D E C I S I O N

††††††††††† This court reviews a postconviction proceeding only to determine whether the evidence is sufficient to sustain the postconviction courtís findings and will affirm the postconviction courtís decision absent an abuse of discretion.† Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).† Where direct appeal has been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.† State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).† An exception to the rule exists when the petitionerís claim is novel or fairness requires further review.† Russell, 562 N.W.2d at 672.† A novel claim means one for which a legal basis was not reasonably available at the time direct appeal was taken.† Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991).†

††††††††††† Rivera identifies five bases for error in his postconviction appeal:† (1) the admission of Spreigl evidence; (2) prosecutorial misconduct; (3) ineffective assistance of counsel; (4) judicial misconduct; and (5) denial of equal protection rights.† Because Rivera previously appealed the admission of Spreigl evidence, prosecutorial misconduct, and ineffective assistance of counsel in his direct appeal, we will not address those issues here.† See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

††††††††††† The two issues not raised in his direct appeal were judicial misconduct and violation of the equal protection clause; the state argues that both should have been raised.† We agree.† Minnesota courts generally hold that if a claim can be raised, or should be raised, at the time of direct appeal, no postconviction hearing will be granted.† Wilson v. State, 582 N.W.2d 882, 884 (Minn. 1998).† Rivera provides no evidence that these are novel issues unavailable to him at the time of his direct appeal.† Therefore, both issues should have been raised in the direct appeal.† See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (if defendant has previously made direct appeal, this court will not consider issues raised in direct appeal, or issues known but not raised in direct appeal, in subsequent petition for postconviction relief).

††††††††††† Affirmed.