This opinion will be unpublished and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
Glenn Lee Figaro, petitioner,
Filed October 25, 2005
St. Louis County District Court
File No. K2-00-600483
Mark D. Kelly, 400 Exchange Building,
Mike Hatch, Attorney General, James B. Early, Assistant Attorney
Alan L. Mitchell, St. Louis County Attorney, St. Louis County
Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, 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 that challenged a 2001 conviction for controlled-substance offenses, appellant argues that the postconviction court erred in denying the petition without an evidentiary hearing. Because the district court properly denied appellant’s postconviction petition, we affirm.
Robert Jackley, a paid informant for the Duluth Police Department, made three purchases of crack cocaine from a person whom he identified as appellant Glenn Lee Figaro (a/k/a Daddy). Each transaction was recorded and contained conversations between Jackley and a person he called Daddy.
During pretrial proceedings, appellant argued that Jackley purchased the drugs from appellant’s cousin, Michael Hill, and that it was Hill’s voice on the tapes. At trial, Jackley testified that he knows Hill, that Hill and appellant do not look alike, and that he purchased the drugs from appellant. Further evidence at trial established that the seller drove a car rented to appellant’s mother, one sale was arranged through cell-phone contact and the owner of the cell phone gave the bills to appellant to pay, and two of the sales took place near appellant’s mother’s house.
A jury found appellant guilty of all controlled-substance charges. Appellant moved for a new trial based on newly discovered evidence of a tape-recorded conversation in which Hill allegedly confessed to the crimes. The district court denied appellant’s motion, noting that the evidence was not newly discovered because it could have been procured through diligence prior to trial.
On direct appeal, appellant argued that he was denied effective assistance
of counsel and that the district court abused its discretion in refusing to
allow an undisclosed witness to testify, in requiring appellant to testify to
authenticate a recording, and in denying his motion for a new trial. This court affirmed appellant’s
conviction. See State v. Figaro, No.
D E C I S I O N
We review a postconviction court’s
denial of relief for abuse of discretion.
Perry v. State, 595 N.W.2d 197, 200 (
Appellant petitioned for postconviction relief based on newly discovered evidence of a forensic audiologist’s report concluding that it was not appellant’s voice on the tapes and evidence from Jackley’s subsequent civil trial that contradicted the testimony he gave at appellant’s trial. The postconviction court denied the petition because appellant could have raised the audiologist’s report on direct appeal and newly discovered evidence may not be used for impeachment purposes.
To reopen a case based on newly discovered
evidence, the defendant must prove: (1) the evidence was not known to him or
his counsel before trial; (2) the evidence could not have been discovered
through due diligence before trial; (3) the evidence is not cumulative, impeaching,
or doubtful; and (4) the evidence would probably produce a different or a more
favorable result. Wieland v. State,
457 N.W.2d 712, 714 (
Further, “where 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
Appellant also argues that “evidence
produced at the civil trial by . . . Jackley . . . raises discovery violation
issues.” Appellant suggests that Jackley
testified at his civil trial that he was paid for convictions he attained, but
at appellant’s trial he testified that he did not receive additional
compensation for convictions. To reopen
a case based on newly discovered evidence, the defendant must prove that the
evidence is not cumulative, impeaching, or doubtful. Wieland, 457 N.W.2d at 714. Evidence
that Jackley received additional compensation for convictions that resulted
from his testimony as an informant would only serve to impeach Jackley’s
testimony. Further, “allegations raised
in the petition [for postconviction relief] must be more than argumentative
assertions without factual support.” Rainer v. State, 566 N.W.2d 692, 695 (