This opinion will be unpublished and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
State of Minnesota,
Filed July 26, 2005
Robert H. Schumacher, Judge
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
James Allan Riley appeals from the district court's order summarily denying his petition for postconviction relief. The petition challenges his 1998 convictions of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. We affirm.
After a five-day jury trial in 1998, a jury found Riley guilty of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct. In 1999, Riley appealed directly from the convictions, raising 12 issues, which included the claim that the district court erred in awarding restitution. This court reversed a part of the restitution award and affirmed on all other issues. State v. Riley, No. C6-98-1169 (Minn. App. April 13, 1999). In 2004, Riley petitioned the district court for postconviction relief.
contends the chief judge erred in denying his request to remove the trial judge
from the postconviction proceeding. To
remove a trial judge from a subsequent postconviction proceeding, a party must
make an affirmative showing that the judge is disqualified under the Code of
Judicial Conduct. Minn. R. Crim. P.
26.03, subd. 13; Hooper v. State, 680
N.W.2d 89, 92 (
Before the district court, Riley argued that he "believes"
the trial judge was biased against him because the judge also presided over a
child protection matter involving Riley's stepson, whom Riley maintained
throughout the trial was the perpetrator of the crimes charged against
him. We have held that a trial judge's
impartiality when considering a suppression motion related to a search warrant
is not reasonably questioned by the mere fact that the judge previously issued
the warrant. State v. Poole, 472
N.W.2d 195, 196-97 (
2. Riley contends he was improperly denied assistance of counsel in bringing his postconviction petition. After providing representation in a direct appeal, the state public defender may, but is not required to, provide counsel to an indigent petitioner in a later postconviction proceeding. Minn. Stat. § 590.05 (2004) (stating, "state public defender shall represent [an indigent person], if the person has not already had a direct appeal of the conviction" and "may represent, without charge, all other persons pursuing a postconviction remedy"); Gibson v. State, 569 N.W.2d 421, 423 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997). Riley was represented in his direct appeal by the state public defender. The state public defender was under no obligation to represent him in the postconviction proceeding.
3. Riley also contends the district court erred in denying his
postconviction petition without granting him an "evidentiary"
Generally, a postconviction court need not grant a hearing when the
"petition and the files and records of the proceeding conclusively show
that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1
(2004). When there has been a direct
appeal, "all matters raised therein, and all claims known but not raised,
will not be considered upon a subsequent petition for postconviction relief." Gassler v. State, 590 N.W.2d 769, 771
Exceptions to the rule exist
where the claim is novel and the legal basis was unavailable at the time of
direct appeal, or fairness requires consideration of the claim and the petitioner did not
deliberately and inexcusably fail to raise the issue on direct appeal. Russell v. State, 562 N.W.2d 670, 672
First, Riley raises a constitutional challenge to Minn. Stat. § 611A.033 (1998), which provides for a victim's right to a speedy trial. This challenge was raised on direct appeal and is procedurally barred under Knaffla.
Second, Riley argues the district court erred in failing "to investigate into a source of conflict of interest between [Riley] and [the] public defender's office." This claim is a reformulation of issues raised by Riley on direct appeal, including that the district court erred in denying his request for a continuance from the start of his second trial, in dismissing private counsel involuntarily, and in scheduling a new trial too soon after the mistrial. To the extent the issue is not a reformulation of previously raised claims, it is not novel and there is no reason excusing Riley from raising it on direct appeal. This claim is procedurally barred under Knaffla.
Riley argues he received ineffective assistance of counsel. The Knaffla rule applies to ineffective assistance of counsel claims
unless an evidentiary hearing
is necessary to develop additional facts to explain the attorney's
decisions. Black v. State, 560
N.W.2d 83, 85 n.1 (
4. Finally, Riley contends he is entitled to a new trial
because of newly discovered evidence. In
order to be granted a new trial based on newly discovered evidence, Riley bears
the burden of proving that he did not know of the evidence at trial, his
failure to discover it was not due to a lack of diligence, the evidence is
material, and the evidence would probably produce a more favorable result for him
on retrial. Race v. State, 504
N.W.2d 214, 217 (
Riley argues the following newly discovered evidence entitles him to a new trial: (1) evidence of his former wife's allegations of sexual abuse that she brought against Riley prior to trial, (2) evidence of his former wife's drug addiction, "which led her to rehab prior to this case," and (3) evidence that prior to Riley's trial the trial judge presided over a child protection matter involving Riley's step-son. All of this evidence was either known by Riley or available to him prior to trial, and Riley does not demonstrate that his failure to discover this evidence was not due to lack of diligence.
Riley also argues a report produced in a guardianship matter involving Riley's son that took place after Riley's trial entitles him to a new trial. Since the report does not state that his son is in need of ongoing medical treatment, Riley argues his son must not have been sexually abused. At best this evidence would amount to impeachment of his son's videotaped statement that was admitted at trial. As such, the evidence is not material and does not entitle Riley to a new trial. See id. (explaining material evidence is "not impeaching, cumulative or doubtful" evidence).