This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







Eugene Francis Kleinwachter, petitioner,





State of Minnesota,



Filed May 3, 2005


Hudson, Judge


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 County Attorney, P.O. Box 159, Warren, Minnesota 56762 (for respondent)


            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 S. Ct. 2531 (2004), does not apply retroactively to his sentence. Because we conclude that Blakely does not apply retroactively to appellant’s sentence, we affirm.



            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. 

On 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 S. Ct. 2531 (2004), does not apply retroactively to appellant’s sentence.  This appeal follows.




Appellant 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 (Minn. 2004). 

Appellant argues that Blakely is retroactively applicable to the time of release of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and that, because his case was pending in 2001, he is entitled to Blakely relief.  Appellant argues that his case was still pending when Apprendi was decided because he had a federal habeas corpus petition pending until February 20, 2001.  Appellant also argues that he is entitled to Blakely relief because the decision is retroactively applicable to his sentence because neither Blakely nor Apprendi announced a new rule. 

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 ApprendiState v. Petschl, 692 N.W.2d 463, 471 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). 

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.[1]  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 ApprendiPetschl, 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 U.S. 288, 307, 311, 109 S. Ct. 1060, 1073, 1076 (1989) (quotation omitted)).  Appellant does not argue that either exception is applicable to his case. 

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 (Minn. 1996) (stating that this court will generally not consider matters not argued to the district court).


[1] 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.