This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-01-2168

 

 

Robert Lee Valentine, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed July 2, 2002

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. 99122991

 

 

Robert L. Valentine, OID No. 204951, MCF – Stillwater, 970 Picket Street, Bayport, MN 55003-1490 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Elizabeth V. Cutter, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Poritsky, Judge.*


U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant Robert Lee Valentine challenges the district court's denial of his petition for postconviction relief following his conviction for first- and second-degree attempted murder, subsequent appeal, and remand.  We affirm.

FACTS

            On April 13, 2000, Valentine was found guilty by jury of first- and second-degree attempted murder  He was sentenced to 240 months, an upward durational departure from the presumptive sentence.  Valentine appealed, and this court affirmed his conviction but reversed as to the sentence departure and remanded for re-sentencing.  State v. Valentine, 630 N.W.2d 429, 438 (Minn. App. 2001), review denied (Minn. Aug. 22, 2001).  On November 16, 2001, Valentine was re-sentenced to the presumptive 180 months.  Valentine filed a petition for postconviction relief on October 23, 2001.  Valentine alleged: (1) the state's expert misled the jury, (2) improper closing argument by the prosecution, (3) ineffective assistance of counsel, (4) insufficient evidence, and (5) a juror was pressured to render a verdict.

            By order of December 3, 2001, and amended order of January 10, 2002, the district court denied Valentine's petition without an evidentiary hearing.  The district court reasoned that most of Valentine's allegations were either addressed in the direct appeal or were waived because they could have been raised in that appeal.  The remaining issue, that a juror was pressured to render a verdict, was insufficient as a matter of law for the relief requested.  This appeal followed.  

D E C I S I O N

            When seeking postconviction relief, the petitioner has the burden of proving, by a preponderance of the evidence, the facts warranting the relief sought.  Sutherlin v. State, 574 N.W.2d 428, 436 (Minn. 1998).  This court determines whether the district court's decision finds support in the record, and will reverse only when the court abused its discretion.  State v. Walen, 563 N.W.2d 742, 750 (Minn. 1997).

            1.  Valentine raised two of the issues in his earlier appeal that he asks the court to address here.  He alleged that the state's expert's ballistic evidence was misleading and that the prosecutor committed misconduct.  Insufficiency of the evidence and ineffective assistance of counsel were arguments available to Valentine at the time of his initial appeal.  Valentine's first four arguments either were raised, or could have been raised, in his direct appeal.  Accordingly, we do not consider these issues.  See Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) ("we will not consider matters that were raised on direct appeal or claims known at that time but not raised"); see also Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            2.  Valentine also alleges that a sworn letter from a juror indicates that a new trial is required.  The letter, however, indicates that the juror "felt that this was a lot of pressure on me to try and reach a fair verdict" and that the juror's "whole decision would have been different" if she had been allowed to see "some new documentation that [she has] seen since the trial."  The juror does not specify the new documentation. 

The court is not to inquire into the mental processes of a juror.  Minn. R. Evid. 606(b); State v. Olkon, 299 N.W.2d 89, 109 (Minn. 1980).  Allegations of juror misconduct, however, present an issue for the court to consider.  See Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 327-28, 104 N.W.2d 301, 302-03 (1960).  Minnesota Rule of Criminal Procedure 26.03, subd. 19 (6), states that if a defendant believes "the verdict is subject to impeachment," the defendant should make a motion for a hearing, commonly referred to as a Schwartz hearing.  A juror affidavit may not be used to impeach the verdict.  Id.  Instead, the affidavits and allegations are presented to the court for purposes of establishing a prima facie case warranting the Schwartz hearing.  State v. Larson, 281 N.W.2d 481, 484 (Minn. 1979).  The defendant must submit adequate evidence, standing alone, that would warrant the conclusion that jury misconduct occurred.  Id.

Although Valentine did not explicitly move for a Schwartz hearing, the district court addressed Valentine's allegations as if such a motion were being made.  The district court concluded that Valentine had not provided the prima facie basis warranting an evidentiary hearing and thus denied Valentine's request for postconviction relief without a hearing.  Whether a Schwartz hearing is warranted is generally a matter within the discretion of the district court.  Id.  The juror's letter discusses the ballistics expert and makes vague reference to some additional information regarding his testimony.  This evidentiary issue was raised in Valentine's earlier appeal, and this court rejected the contention.  Valentine, 630 N.W.2d at 438.  Our review of the record indicates that the district court did not abuse its discretion in denying Valentine's request for an evidentiary hearing nor in its decision regarding the merits of Valentine's assertions.  See Walen, 563 N.W.2d at 750 (district court's decision reversed on appeal only upon abuse of discretion).

Affirmed. 



            * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.