This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Gale A. Rachuy, petitioner,


State of Minnesota,


Filed March 4, 2003


Peterson, Judge


Hennepin County District Court

File No. 00088218


Gale A. Rachuy, 1000 Lakeshore Drive, Moose Lake, MN  55767 (pro se appellant)


Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103-2106; and


Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)


            Considered and decided by Willis, Presiding Judge, Randall, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an order denying a petition for postconviction relief, pro se appellant Gale Rachuy argues that (1) the sentencing judge was biased; (2) his prior convictions were counted incorrectly for purposes of sentencing him under the career-offender statute; and (3) he is a victim of selective prosecution.  We affirm.


Appellant pleaded guilty to theft by swindle on August 17, 2001, pursuant to a plea agreement, and on September 18, 2001, appellant was sentenced to 56 months imprisonment and restitution of $4000.  Appellant moved to withdraw his guilty plea, arguing that restitution was not part of the plea agreement.  The district court denied the motion, and this court affirmed the district court.  State v. Rachuy, No. C9-01-1890 (Minn. App. Mar. 26, 2002), review denied (Minn. May 28, 2002).  Appellant then filed a petition for postconviction relief, and the postconviction court denied the petition. 


In postconviction proceedings, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts that warrant relief.  Minn. Stat. § 590.04, subd. 3 (1996).  On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).  Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal.  Id.

            Once a direct appeal has been taken, we will not consider [upon a subsequent petition for postconviction relief] matters that were raised on direct appeal or claims known at that time but not raised.  The exceptions to this rule are (1) a claim that is so novel that the legal basis was not available on direct appeal, or (2) a claim that petitioner did not “deliberately and inexcusably” fail to raise on direct appeal.  The exceptions are limited to the extent that fairness requires consideration of such a claim.


Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (citations omitted).

            Appellant makes three arguments on appeal: (1) the sentencing court was prejudiced and biased and should not have presided at trial; (2) under the calculation method set forth in State v. Huston, 616 N.W.2d 282 (Minn. App. 2000) and State v. Sanders, 644 N.W.2d 483 (Minn. App. 2002), he did not have the five prior convictions necessary to be sentenced under Minn. Stat. § 609.1095, subd. 4 (1998); and (3) he was selectively prosecuted as a career offender.

            Because each of these matters is based on events that occurred during the trial and sentencing, they were known at the time of appellants’ direct appeal.  Therefore, because appellant did not raise them in his direct appeal, we will not consider them.

            Appellant argues that his claim that under the calculation method set forth in Huston and Sanders, he did not have the five prior convictions necessary to be sentenced under Minn. Stat. § 609.1095, subd. 4, was not known to him at the time of his direct appeal because he did not know about the calculation method until he read Sanders, which was released after his direct appeal.  But appellant concedes that the calculation method was initially set forth in Huston.  Huston was decided before appellant was sentenced and, therefore, before his direct appeal.  Fairness does not require consideration of a claim that could have been raised in appellant’s direct appeal based on this court’s decision in Huston.