This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-336

 

 

Puiassance Jhovar Andersen,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed October 7, 2003

Affirmed

Anderson, Judge

 

Hennepin County District Court

File No. 96-089253

 

Puiassance J. Andersen, OID: 161193, MCF – Stillwater, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)

 

Michael A. Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Amy Klobuchar, Hennepin County Attorney, Jean E. Burdorf, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN  55487 (for respondent)

 

            Considered and decided by Harten  , Presiding Judge; Anderson, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

ANDERSON, G. Barry, Judge

            Appellant challenges the district court’s summary denial of his second postconviction petition in which he sought a new trial, or in the alternative, resentencing arguing (1) ineffective assistance of trial counsel and district court error causing a mandated jury instruction to be excluded from the jury charge; (2) ineffective assistance of appellate and postconviction counsel; and (3) postconviction error in failing to, sua sponte, strike respondent’s late answer to appellant’s first petition for postconviction review.  We affirm.

FACTS

            Appellant was convicted in 1997 of first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (1996), and first-degree aiding and abetting burglary, in violation of Minn. Stat. § 609.582, subd. 1(a) (1996).  At appellant’s trial, a codefendant and an accomplice who could have been charged as an accessory after-the-fact testified against appellant.  At the close of evidence, appellant’s counsel did not request that an instruction regarding accomplice testimony be given.  The district court did not give the instruction despite Minnesota case law requiring that an accomplice-testimony instruction be given in cases where a witness who “might reasonably be considered an accomplice to the crime” testifies against the defendant, regardless whether or not the defendant requests the instruction.

            On September 5, 1997, appellant filed a direct appeal of his convictions in which he raised the following issues: (1) the admissibility of a letter written by appellant; (2) the admissibility of the testimony of a potential accessory after-the-fact; and (3) the propriety of the district court’s limitation of appellant’s cross-examination of a prosecution witness.  This court affirmed the district court in all respects in State v. Andersen, No. C7-97-1624, 1998 WL 346657, at *3 (Minn. App. June 30, 1998).

            On November 13, 2000, appellant petitioned the district court for postconviction relief.  Appellant requested a new trial or, alternatively, resentencing, arguing: (1) he received ineffective assistance of trial counsel because counsel did not request the accomplice-testimony instruction be given; (2) his appellate counsel was also ineffective because counsel did not raise the issue of ineffective assistance of trial counsel; and (3) the district court did not, sua sponte, instruct the jury on accomplice testimony.

The district court denied appellant’s petition for postconviction relief, stating that (1) appellant failed to allege facts which, if proven, would entitle him to relief; (2) assuming arguendo that trial and appellate counsel were ineffective, appellant failed to allege facts which, if proven, would establish that without the alleged errors the outcome of appellant’s trial or appeal would have been different; and (3) matters raised in appellant’s direct appeal, or known at the time of appeal and not raised, would not be considered by the postconviction court.  Appellant did not appeal this denial of postconviction relief.

            On February 4, 2003, appellant, acting pro se, again petitioned for postconviction relief.  In the 2003 petition, appellant sought the same relief, in a virtually verbatim recital of his first petition, as previously sought.  The only differences are that in appellant’s second petition he includes the additional claims that counsel in his first postconviction proceeding was ineffective and that the state’s response to the first petition was untimely.  The district court summarily denied appellant’s subsequent petition stating that the “court has already decided substantially all of the issues raised in the instant petition,” and noted the absence of a direct appeal following the first petition.  This appeal follows.

D E C I S I O N

            Appellant contends that the postconviction court abused its discretion by summarily denying his petition for postconviction relief.  Minn. Stat. § 590.04, subd. 3 (2002), provides that the postconviction

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.

 

An appellate court’s “scope of review of a postconviction proceeding is limited to determining whether there is sufficient evidence to sustain the postconviction court’s findings.”  Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999) (citation omitted) (footnote omitted).  A postconviction court’s decision will not be set aside absent an abuse of discretion.  Id.  Where, as here, there has been a direct appeal, matters known at the time of the direct appeal are procedurally barred from postconviction review.  Doppler v. State, 660 N.W.2d 797, 801 (Minn. 2003) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)); Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).

            In addition to simply repeating the same claims for relief as in his first petition, appellant raised two additional claims in his second petition: (1) ineffective assistance of postconviction counsel for failing to submit a memorandum of law with appellant’s postconviction petition, and failing to appeal the postconviction court’s denial of appellant’s postconviction petition; and (2) failure to strike the state’s response to appellant’s first postconviction petition as untimely filed. 

In the order denying relief, the postconviction court did not address the two newly raised issues.  Because these issues were not raised in appellant’s first petition for postconviction relief, appellant’s second petition was, technically, not the same as his first petition.  Thus it cannot be said that these issues were previously decided by the district court.  Therefore, we conclude that the postconviction court abused its discretion by summarily denying appellant’s second petition without addressing the issues of postconviction counsel’s alleged ineffective assistance and whether the postconviction court erred by not striking respondent’s answer to appellant’s first petition. 

Having concluded that the postconviction court erred, we must decide if the error was harmless.  See In re Child of Simon, 662 N.W.2d 155, 162 (Minn. App. 2003) (applying the harmless error test to the district court’s abuse of discretion).  A postconviction court may, when “the petition and the files and records [. . .] conclusively show that the petitioner is entitled to no relief[,]” deny the petition without a hearing or specific findings and conclusions.  See Minn. Stat. § 590.04, subd. 1 (stating that findings and conclusions must be set forth only following a hearing where the petition, files, and record do not make clear that petitioner is entitled to no relief).  Thus we review the evidence and determine if the postconviction court’s summary denial of appellant’s subsequent petition is supported.  Crisler v. State, 520 N.W.2d 22, 24 (Minn. App. 1994), review denied (Minn. Sept. 28, 1994).

            Appellant claims that his postconviction counsel was ineffective for failing to submit a memorandum of law with appellant’s first petition.  A petition for postconviction relief shall include:

(1) a statement of the facts and the grounds upon which the petition is based and the relief desired. All grounds for relief must be stated in the petition or any amendment thereof unless they could not reasonably have been set forth therein. It shall not contain argument or citation of authorities;

 

(2) an identification of the proceedings in which the petitioner was convicted including the date of the entry of judgment and sentence or other disposition complained of;

 

(3) an identification of any previous proceeding, together with the grounds therein asserted taken on behalf of the petitioner to secure relief from the conviction and sentence or other disposition;

 

(4) the name and address of any attorney representing the petitioner.

 

Minn. Stat. § 590.02, subd. 1 (2002) (emphasis added).  There is no requirement that a postconviction petition include a memorandum of law.  Quite the contrary, the statute specifically states that the petition “shall not contain argument or citation of authorities[.]”  Id.  Appellant’s first postconviction petition was filed in accordance with Minn. Stat. § 590.02.  Therefore, appellant’s postconviction counsel’s performance, in submitting the postconviction petition, did not fall below an objective standard of reasonableness.  See King v. State, 562 N.W.2d 791, 795 (Minn. 1997) (stating that in order to succeed on a claim of ineffective assistance of counsel, appellant must demonstrate that counsel’s performance fell below an objective standard of reasonableness).  Because counsel’s performance was not unreasonable, this court need not analyze whether appellant was prejudiced.  See Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 2069 (1984) (stating that courts need not analyze prejudice component if there is insufficient showing of attorney’s ineffective performance).

            Appellant next argues that his postconviction counsel was ineffective for failing to appeal the denial of appellant’s first postconviction petition.  Appellant argues that he requested that counsel file an appeal but counsel demanded more money before doing so, and because appellant could not pay, no appeal was filed.  Conspicuously absent from the record, however, is any evidence, beyond appellant’s assertion, that appellant ever requested that an appeal be filed or that financing the cost of an appeal was an issue.  Without evidence in the petition, files, and record to sustain these bare assertions, we cannot conclude the postconviction court’s refusal to entertain this issue prejudiced appellant.  See Minn. Stat. § 590.04, subd. 1 (stating if the petition, files, and record do not demonstrate that petitioner is entitled to relief, the court may deny a subsequent petition without a hearing, findings, or conclusions of law).

            Finally, appellant argues that the postconviction court abused its discretion by not striking respondent’s answer to appellant’s first petition.  Minn. Stat. § 590.03 (2002), states that

[w]ithin 20 days after the filing of the petition pursuant to section 590.01 or within such time as the judge to whom the matter has been assigned may fix, the county attorney, or the attorney general, on behalf of the state, shall respond to the petition by answer or motion which shall be filed with the court administrator of district court and served on the petitioner[.]

 

            Appellant’s notice of filing and affidavit of service of his first petition is dated November 6, 2000.  Respondent’s answer was filed on April 5, 2001—well beyond the 20-day deadline.

            The burden to establish facts—through the record, files, and petition—that warrant relief is on the petitioner in a postconviction proceeding.  Minn. Stat. § 590.04, subd. 3 (stating that the burden of establishing facts that entitle petitioner to relief is on the petitioner).  Here, the district court specifically found that appellant “failed to allege facts which, if proved, would entitle him to the requested relief.”  Respondent’s answer to appellant’s petition had no effect on the sufficiency or insufficiency of appellant’s petition.  Without analyzing whether the first postconviction court should have stricken respondent’s answer, sua sponte, it is readily apparent that even without the response the outcome would have been the same.  Because appellant’s petition, standing alone, failed to allege facts that would have entitled appellant to relief, and because this was the basis on which the court actually rested its decision, appellant was not prejudiced by the district court’s acceptance of respondent’s late response.

            Affirmed.