This opinion will be unpublished and

may not be cited except as provided by

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






Jerrod Ryan Kemmer, petitioner,


State of Minnesota,


Filed September 20, 2005


Peterson, Judge


Beltrami County District Court

File No. KO99784


Blair W. Nelson, Blair W. Nelson, Ltd., 1421 Bemidji Avenue North, Bemidji, MN  56601 (for appellant)


Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and


Timothy R. Faver, Beltrami County Attorney, 619 Beltrami Avenue, Suite 40, Bemidji, MN  56601 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


In this appeal from an order denying a postconviction petition challenging a conviction for sodomy, appellant Jerrold Ryan Kemmer contends that because his claim that the Minnesota sodomy statute is unconstitutional was not supported by case law until after his direct appeal was decided, the claim is so novel that its legal basis was not reasonably available at the time of his direct appeal, and the postconviction court should have considered the claim.  We affirm.


            Kemmer was charged with fourth-degree criminal sexual conduct in violation of Minn. Stat. § 609.345, subd. 1(d) (1998).  He pleaded guilty to gross-misdemeanor sodomy in violation of Minn. Stat. § 609.293, subd. 5 (1998), and the criminal-sexual-conduct charge was dismissed.  Based on the results of a psychological evaluation and Kemmer’s prior record of sexual misconduct, the court determined that Kemmer posed a high risk for reoffending and sentenced him to 122 days in jail, with credit for time served; placed him on two years’ probation; and ordered him to register as a sex offender under Minn. Stat. § 243.166 (1998).

            In his brief on direct appeal, Kemmer addressed three issues: (1) whether there was an adequate factual basis to support his guilty plea; (2) whether there was an adequate basis for ordering him to register as a sex offender; and (3) whether Minnesota’s sodomy statute is constitutional.  At oral argument, Kemmer withdrew his challenges to the factual basis for his guilty plea and the constitutionality of the sodomy statute.

            In July 2004, Kemmer filed a petition for postconviction relief, requesting that his conviction be vacated because the Minnesota sodomy statute was held unconstitutional after this court decided his direct appeal.  Based on a determination that the constitutional challenge was available to Kemmer at the time of his direct appeal, the district court denied Kemmer’s postconviction petition.  This appeal followed.


“A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). 

In State v. Knaffla, the supreme court established the rule that once a petitioner has directly appealed a conviction, all matters raised in that appeal, and all matters that were known but not raised, “will not be considered upon a subsequent petition for postconviction relief.”  309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  An exception to the Knaffla rule is that a postconviction court may hear and consider a claim that was previously known but not raised if the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal.  Greer v. State, 673 N.W.2d 151, 155 (Minn. 2004) (citing Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995)).

This court decided Kemmer’s direct appeal on April 10, 2001.  State v. Kemmer, No. C6-00-1402 (Minn. App. Apr. 10, 2001).  The following month, a Minnesota state district court held “Minn. Stat. § 609.293 to be unconstitutional, as applied to private, consensual, non-commercial acts of sodomy by consenting adults, because it violates the right of privacy guaranteed by the Minnesota Constitution.”  Doe v. Ventura, No. MC 01-489, 2001 WL 543734, at *9 (Minn. Hennepin County May 15, 2001).  In 2002, the Minnesota federal district court issued a published opinion following DoeSee Devescovi v. Ventura, 195 F. Supp. 2d 1146 (D. Minn. 2002).

            Kemmer argues that because the precedent for claiming that the Minnesota sodomy statute is unconstitutional was not available at the time of his direct appeal, the claim is a novel claim under Greer.  Although this court decided Kemmer’s direct appeal before Doe and Devescovi were decided, the district court determined that the constitutional challenge was available at the time of direct appeal for the following reasons:

            [Kemmer] now argues that the constitutionality of the sodomy statute was a novel argument at the time of his appeal and that the legal basis for such a challenge was unavailable to him.  I find no merit in this argument.  First, the very fact that he challenged the statute’s constitutionality in his appeal belies any claim that it was a “novel argument” unavailable to him.  Second, the issue of the constitutionality of Minnesota’s sodomy statute was very much in the news at the time of Kemmer’s appeal.  . . . Kemmer filed his appeal in August 2000 (the cased was decided on April 10, 2001).  In June 2000, the Minnesota Civil Liberties Union filed a widely-reported suit to overturn Minnesota’s sodomy law.  It was the following spring – on May 15, 2001 – that a Hennepin County District Court judge found the statute unconstitutional in Doe. . . .


            Moreover, numerous states have had their sodomy statutes challenged and overturned or repealed.  North and South Dakota, Nebraska and Iowa repealed similar laws in the late 1970s, and Wisconsin did the same in the early 1980s.  And, in fact, the Minnesota Supreme Court addressed a challenge to the statute as early as 1987 in State v. Gray, 413 N.W.2d 107 (Minn. 1987).  In Gray, decided just after Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841 (1986) [upholding sodomy law against federal constitutional challenge], the Court expressly limited its holding to commercial sexual conduct and signaled that other facts might expand the privacy right:

Today’s decision is limited to a holding that any asserted Minnesota constitutional privacy right does not encompass the protection of those who traffic in commercial sexual conduct.  Whether the scope of any privacy right asserted under the Minnesota Constitution should be expanded beyond federal holdings remains to be resolved in future cases wherein the issue is properly raised.

For all these reasons, [Kemmer] argues unconvincingly that the constitutional challenge to the law was not known or available to him in late 2000 – early 2001.


(Emphasis omitted) (citations omitted.)  We find the district court’s reasoning persuasive.

            Kemmer argues that even if the state constitutional challenge is not a novel claim, a federal constitutional challenge is a novel claim.  At the time of Kemmer’s direct appeal, Bowers, a five-to-four decision upholding a sodomy law against a federal constitutional challenge, was still good law.  In 2003, the Supreme Court overruled Bowers, holding that a Texas sodomy law violated federal constitutional due-process guaranties as applied to consenting adults.  Lawrence v. Texas, 539 U.S. 558, 559 123 S. Ct. 2472, 2475 (2003).

            Kemmer cites no authority supporting his position that the existence of contrary precedent makes a constitutional claim novel.  Because Kemmer’s claim that the Minnesota sodomy statute is unconstitutional is not so novel that its legal basis was not
reasonably available to him at the time of his direct appeal, the district court did not abuse its discretion in denying postconviction relief. 


*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.