This opinion will be unpublished and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
Marlowe Nathaniel Brooks, petitioner,
Filed May 31, 2005
Hennepin County District Court
File No. 00087189
Marlowe Nathaniel Brooks,
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
The district court denied Marlow Brooks’s postconviction petition without an evidentiary hearing. Because the petition, files, and record conclusively show that Brooks is not entitled to relief on his claim of ineffective assistance of counsel, we affirm the district court’s denial of Brooks’s request for postconviction relief.
Marlowe Brooks pleaded guilty to
second-degree murder and first-degree attempted murder for fatally shooting one
man and shooting at another as the two men left a store in south
Two years after his direct appeal,
Brooks petitioned for postconviction relief, alleging ineffective assistance of
trial and appellate counsel. Brooks
v. State, No. A03-515, 2004 WL 193112, at *1 (Minn. App. Feb. 3, 2004), review
In this third appeal and second postconviction-relief proceedings, Brooks again alleges that he received ineffective assistance of trial counsel because his attorney failed to object to the district court’s restitution order that required Brooks to reimburse, through the Minnesota Crime Victim Reparations Board, the funeral expenses for the shooting victim. The district court denied the petition as procedurally barred and substantively without merit. Brooks appeals from this second denial of postconviction relief.
D E C I S I O N
The district court must grant a
hearing for a postconviction appeal “[u]nless the petition and the files and
records of the proceeding conclusively show that the petitioner is entitled to
Brooks alleges that the district court abused its discretion by denying an evidentiary hearing to allow him to explain how his trial counsel’s representation was ineffective. The district court found that there was no need for an evidentiary hearing because the facts were not in dispute and concluded that consideration of the issues presented by Brooks was procedurally barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). The district court also noted that Brooks’s claim of ineffective assistance of counsel lacked merit because a failure to challenge a plea when restitution was not addressed in the plea bargain does not amount to ineffective assistance of counsel. See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (concluding that restitution may be ordered in addition to sentence and that defendant’s personal failure to object operates as waiver), review denied (Minn. Dec. 22, 1993).
postconviction court’s findings and conclusions are supported by the
record. At Brooks’s hearing on his
motion to withdraw his guilty plea, the subject of his direct appeal, the
district court considered Brooks’s claim of ineffective assistance of counsel for
inadequate investigation and improper development of discovery and concluded
that his attorneys’ assistance was not ineffective. State v. Brooks, No. C1-01-1253, 2002
WL 1277970 at *2-*3 (Minn. App. June 11, 2002), review denied (
that have already been raised and decided in a postconviction-relief petition
cannot be raised again. Knaffla, 309
Brooks either raised or had an opportunity to raise the claims included in this
petition, the district court did not abuse its discretion by denying, without a
hearing, Brooks’s request for postconviction relief. The postconviction court further observed
that the holding in
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.