This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed August 9, 2005
County District Court
Arden J. Archer, # 100187, MCF-OPH, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)
Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800
Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Joseph A. Evans, Becker County Attorney, Lincoln
Professional Center, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)
Considered and decided by Toussaint, Chief
Judge, and Forsberg, Judge.
P U B L I S H E D O P I N I O N
Appellant Arden John Archer was
convicted on multiple counts in 1997 and, as a career criminal offender, he
received a statutory maximum sentence of 20 years for each conviction. On what is Archer’s second postconviction
petition for relief he argues that (1) his sentence should be vacated under Blakely v. Washington, 124 S. Ct. 2531
(2004); (2) his sentence is based on an incorrect criminal history score; (3)
this court’s decision that burglary is not “a crime against a person” for
sentencing purposes makes his conviction impermissible; (4) he was entitled to
an evidentiary hearing before the district court on these issues; and (5) the
postconviction judge should have been disqualified from hearing his
petition. We affirm.
the state charged Archer with two
counts of first-degree aggravated robbery under Minn. Stat. § 609.245, subd. 1
(1996) and three counts of first-degree burglary under Minn. Stat. §609.582,
subd. 1 (1996). The jury convicted him
of all counts. Based on Archer’s criminal history score of 17 and the
district court’s determination that his current crimes were committed as a
pattern of criminal conduct, the district court sentenced Archer
as a career offender and imposed the statutory maximum of 20 years for each
conviction with the sentences to run consecutively. On direct appeal in 1999, this court affirmed
his conviction, but modified his sentences to a total commitment of 40 years,
concluding that his burglary of a business was not a “crime against a person”
and, therefore, he could not be sentenced for this burglary conviction consecutively
to his sentences for his other convictions.
State v. Archer, 1999 WL
1256432 (Minn. App. Dec. 28, 1999).
In 2001, Archer petitioned for postconviction relief, arguing that
his sentence violated the mandates of Apprendi v. U.S., 530 U.S. 466, 120 S. Ct.
2348 (2000). The district court denied
his petition, finding that Apprendi was inapplicable. This court affirmed, concluding that Archer’s sentence did not violate Apprendi, and that the district court did not
abuse its discretion in denying him an evidentiary hearing.
In 2004, Archer again petitioned the district court for
postconviction relief seeking correction of his sentence and requesting that
the postconviction judge be disqualified based on bias. The district court found Archer’s claims were “procedurally barred from
consideration and/or without merit.” The
district court denied Archer’s request
for postconviction relief and his request for an evidentiary hearing, but does
not appear to have ruled on the request for disqualification.
D E C I S I O N
seeking postconviction relief, appellant has the burden of establishing, by a
fair preponderance of the evidence, facts that will warrant a reopening of the
case. State v. Ranier, 502 N.W.2d
784, 787 (Minn.
1993). A postconviction proceeding is a
collateral attack on a judgment “which carries a presumption of regularity”
and, as result, that judgment will not be lightly set aside. State ex rel Gray v. Tahash, 279 Minn. 248, 250, 156
N.W.2d 228, 229 (1968). A postconviction
court’s decision will not be disturbed absent an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).
seeks relief from his sentence based on the United States Supreme Court’s
decision in Blakely v. Washington,
124 S. Ct. 2531 (2004). In State v. Petschl, this court held that “the
Blakely rule . . . is not a watershed
rule subject to retroactive application on collateral review.” 692 N.W.2d 463, 472 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). Because Archer’s
conviction was final before the Supreme Court released its decision in Apprendi, the district court properly
concluded, under Petschl,, that Archer
is not entitled to relief from his sentence based on Blakely.
Archer alleges that his sentence is based on an
incorrect criminal history score.
“[W]here direct appeal has once been taken, all matters raised therein,
and all claims known but not raised, will not be considered upon a subsequent
petition for postconviction relief.” State
v. Knaffla, 309 Minn.
246, 251-52, 243 N.W.2d 737, 741 (1976).
The alleged error that Archer
now raises was available at the time of his direct appeal, but at that time he
“d[id] not dispute that his criminal history score sentenced him as a career
1999 WL 1256432 at *4. The district
court properly determined Archer was
not entitled to raise this issue.
Archer contends that one of his burglary convictions
must be vacated because, for purposes of determining whether the sentence for
the offense could be imposed consecutively to Archer’s
other sentences, this court determined that the burglary was not a “crime
against a person.” Archer’s
assertion is based on a misreading of this court’s prior opinion, and is devoid
of merit. Because Archer
did not assert any ground on which he is entitled to relief from his sentence
or conviction, the district court properly denied his request for relief.
Archer also argues that he was entitled to an
evidentiary hearing. An evidentiary
hearing is not required unless “facts are alleged which, if proved, would
entitle a petitioner to the requested relief,” or when the petition, files, and
records “conclusively show that the petitioner is entitled to no relief.” Fratzke v. State, 450 N.W.2d 101, 102
see also Minn. Stat. § 590.04, subd.
1 (2004). Because, as discussed above, Archer’s petition did not allege any basis that would
entitle him to his requested relief, the district court was not required to
provide him with an evidentiary hearing.
And because Archer is not
entitled to the relief he requested, his argument that the postconviction judge
should have been disqualified is moot.
Archer argues that the postconviction
judge should have been disqualified when Archer
questioned his impartiality under Minn. R. Civ. P. 63.02 as part of his motion
to “correct his sentence.” Motions to
remove a judge in a criminal matter are to be made under Minn. R. Crim. P.
26.03. But even if we construe Archer’s allegations as an acceptable motion to
disqualify the postconviction judge for bias, we see nothing in the record
demonstrating that the judge’s impartiality could reasonably be questioned in
this case, nor could any judge have granted the relief that Archer was requesting. See State v. Laughlin, 508 N.W.2d 545, 548 (Minn.
App. 1993) (concluding “removal is warranted only where the judge’s
impartiality might ‘reasonably’ be questioned; therefore, a judge should not
accede to the notice or be removed simply because a litigant subjectively
believes that the judge is biased”); see
also State v. Horning, 535 N.W.2d 296, 298 (Minn.1995) (stating appellant
has burden of proving error is prejudicial).