This opinion will be unpublished and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

A03-453

 

Peter Gerald Lonergan, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed December 16, 2003

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. K7-91-1490

 

Robert A. O’Malley, Suite 201, 1304 University Avenue Northeast, Minneapolis, Minnesota 55413 (for appellant)

 

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

 

James C. Backstrom, Dakota County Attorney, Lawrence F. Clark, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, Minnesota 55033 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

 

On appeal from a denial of post-conviction relief, appellant argues that the district court erred by denying him relief from errors made at his trial.  The district court denied appellant’s post-conviction petition finding that the issues raised in his petition were either raised, or known and available to appellant at the time of his direct appeal.  We affirm.

FACTS

On September 5, 1991, appellant Peter Gerald Lonergan was charged with one count of criminal sexual conduct in the first-degree, in violation of Minn. Stat. § 609.342 (1990).  On February 26, 1992, a jury found Lonergan guilty.

Lonergan appealed this decision contending that a number of errors occurred at his trial.  On August 24, 1993, this court issued an order affirming the trial court on all grounds.  State v. Lonergan, 505 N.W.2d 349 (Minn. App. 1993). 

On April 25 1997, Lonergan filed a petition for a writ of habeas corpus to the Federal District Court of Minnesota.  His petition was denied on all grounds.  The Eighth Circuit declined to review this decision.

On February 15, 2003, Lonergan filed a petition for post-conviction relief with the district court.  The district court issued an order denying his petition finding that he raised, or knew of, and had the opportunity to raise, all of the claims he raised in his petition at his prior appeal.  This appeal follows.


D E C I S I O N

A post-conviction court’s decision will not be disturbed absent an abuse of discretion.  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995).  Where a direct appeal has been taken, all issues raised, and all claims known but not raised, will not be considered upon a subsequent post-conviction petition.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  A petitioner may be entitled to relief only upon showing that his claim is so novel that the legal basis was not available on direct appeal.  Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001).  Further, if the petitioner did not “deliberately and inexcusably” fail to raise the claim on direct appeal, fairness requires that the claim be considered.  Fox v. State, 474 N.W.2d 821, 825 (Minn. 1991).

            Here, at the time of Lonergan’s direct appeal before this court, he either raised, or knew about and failed to raise, each of the claims he is currently raising.  Therefore, because Lonergan’s claims do not fit into an exception to the Knaffla rule, his claims are barred.

Affirmed