This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Eugene Francis Kleinwachter, petitioner,
Filed May 3, 2005
Marshall County District Court
File No. K7-94-173
Eugene Francis Kleinwachter, OID #183182, MCF/Moose Lake, 1000 Lakeshore Drive, Moose Lake, Minnesota 55767-9449 (pro se appellant)
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Michael D. Williams, Marshall
Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Eugene Kleinwachter
challenges the district court’s denial of his motion for postconviction relief,
arguing that the district court erred in holding that Blakely v. Washington, 124
On June 21, 1994, the state charged appellant Eugene Kleinwachter with 12 counts of first- and second-degree criminal sexual conduct for abusing his daughter. In 1995 a jury convicted appellant of 11 of the 12 counts. The trial court imposed concurrent sentences of 86 months, 30 months, 122 months, 146 months, and 240 months for five of the convictions, determining that the evidence proved several specific aggravating factors. Appellant challenged his conviction and sentence. This court affirmed appellant’s conviction but remanded for resentencing after determining that the trial court erroneously adjudged appellant guilty of specific incidents of abuse as well as a continuing course of abuse.
On remand, the trial court vacated the five prior sentences, omitted the conviction for the continuous course of abuse, and imposed new concurrent sentences of 21 months, 98 months, 122 months, and 228 months. Appellant again challenged his sentence, and in July 1997, this court affirmed. In August 1997 the Minnesota Supreme Court denied review.
July 28, 2004, appellant petitioned for postconviction relief on the ground
that his sentence violates his Sixth Amendment rights. The postconviction court denied appellant’s
petition for postconviction relief, holding that Blakely v. Washington, 124
argues that the trial court’s imposition of an upward durational departure
based on the judge’s findings violates his right to a jury trial under the
Supreme Court’s holding in Blakely. We review de novo whether a decision applies
retroactively. O’Meara v. State,
679 N.W.2d 334, 338 (
argues that Blakely is retroactively applicable to the time of release
of Apprendi v.
Like a petition for postconviction relief, a
federal habeas corpus petition is a collateral attack on a conviction. See Meemken v. State, 662
N.W.2d 146, 148 (Minn. App. 2003) (noting that a petition for postconviction
relief is a collateral attack on a conviction); Gray v. Netherland, 518
U.S. 152, 161–62, 116 S. Ct. 2074, 2080–81 (1996) (stating the general
requirement that applicants seeking federal habeas corpus relief must first
exhaust all remedies available in state court).
The rule announced in Blakely does not retroactively apply on
collateral review of a conviction that was final before the Supreme Court
decided Apprendi. State v.
Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (
A case is pending on direct review “until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.” O’Meara, 679 N.W.2d at 336. Appellant’s conviction was final by December 1997 when the time to petition for certiorari elapsed following the Minnesota Supreme Court’s August 1997 denial of review. See Sup. Ct. R. 13 (delineating that a petition for a writ of certiorari must be filed within 90 days after entry of the order denying discretionary review by the state court of last resort). Thus, appellant’s case was not pending in 2000 when the Supreme Court decided Apprendi. Therefore, appellant is not entitled to retroactive application of Blakely.
Furthermore, this court recently concluded that
Blakely, like Apprendi, announced a new constitutional rule
because it was not dictated by precedent existing when appellant’s conviction
became final, which was before the release of Apprendi. Petschl, 692 N.W.2d at 471; see
also O’Meara, 679 N.W.2d at 339 (holding that Apprendi announced a new rule).
The Petschl court explained that as a new constitutional rule, Blakely
may only be applied retroactively to cases on collateral review if it: (1)
places certain kinds of individual conduct beyond the power of the government
to criminally proscribe; or (2) requires the observance of procedures that
are “implicit in the concept of ordered liberty,” meaning a “watershed rule[ ]
of criminal procedure” that alters the understanding of the basic procedures
essential to the fairness of a criminal conviction. Petschl, 692 N.W.2d at 471 (quoting Teague
v. Lane, 489
Accordingly, appellant is not entitled to retroactive application of Blakely.
Appellant also argues that the postconviction court erred in ruling on his postconviction petition without considering an answer by the state. See Minn. Stat. § 590.03 (2002) (delineating that within 20 days after the postconviction applicant has filed a petition, the state shall respond to the petition by answer or motion). Appellant contends that if the state had filed an answer, the postconviction court would have applied Blakely retroactively to appellant’s sentence.
We decline to address
appellant’s argument because he did not raise this issue to the district
court. See Roby v. State, 547
N.W.2d 354, 357 (
 We conclude that appellant did not file a petition for a writ of certiorari because the file does not contain a record of a petition nor does appellant allege that he filed a petition.