This opinion will be unpublished and

may not be cited except as provided by

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






Malachi Kilgore-Bey,


State of Minnesota,


Filed February 28, 2006


Stoneburner, Judge


Hennepin County District Court

File No. 00017431


Malachi Kilgore-Bey, MCF – Stillwater, 970 Pickett Street, Bayport, MN 55003-1490 (pro se appellant)


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


Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the denial of his third petition for postconviction relief in which he (1) asserted that his sentence was imposed in violation of his Sixth Amendment rights and (2) asserted ineffective assistance of counsel for failure to challenge his sentence.  Because the district court did not err in denying appellant’s petition without an evidentiary hearing, we affirm.



            The facts regarding appellant’s 2000 indictment, guilty plea, conviction, and sentence for second-degree intentional murder are described in this court’s opinion affirming the denial of a previous petition for postconviction relief.  State v. Kilgore, 661 N.W.2d 654 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003).  In this third petition for postconviction relief, appellant asserted that the upward-durational departure in his sentence violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Appellant also contended that his trial counsel was ineffective because he failed to advise appellant of his rights or to challenge his sentence under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000),and convinced appellant to plead guilty despite knowing that a co-defendant had admitted to a jailhouse informant that he, rather than appellant, had shot the victim and that he (co-defendant) was framing appellant.  The postconviction court summarily denied relief, citing Minn. Stat. § 590.04, subd. 3 (2004), which provides that a “second or successive petition for similar relief” may be summarily denied.  This appeal followed.



            “A petition for postconviction relief is a collateral attack on a conviction that carries a presumption of regularity.”  Greer v. State, 673 N.W.2d 151, 154 (Minn. 2004).   “Appellate review of postconviction proceedings is limited to whether there is sufficient evidence in the record to sustain the findings of the postconviction court.”  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005).  The postconviction court’s findings are granted great deference and the decision will not be overturned absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  A postconviction court’s determinations of legal issues are reviewed de novo.  Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).  Whether a holding applies retroactively is a legal question, which this court reviews de novo.  See State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).  Claims of ineffective assistance of counsel involve mixed questions of fact and law, and are reviewed de novo.  Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004).

I.          Summary dismissal under Minn. Stat. § 590.04, subd. 3 (2004)

            Minn. Stat. § 590.04, subd. 3 (2004), provides in relevant part that the postconviction court “may summarily deny a second or successive petition for similar relief on behalf of the same petitioner . . . .”  The supreme court has applied Minn. Stat.    § 590.04, subd. 3, when a subsequent petition raises the same claim raised in a prior petition.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (affirming that summary dismissal under Minn. Stat. § 590.04, subd. 3, was proper when case involved the petitioner’s third petition and second request for relief based on the same claims of ineffective assistance of trial and appellate counsel that he had raised in previous petition).  But the statute was not applied to a petition for postconviction relief that raised legal and factual arguments not raised in previous petitions.  Rainer v. State, 566 N.W.2d 692, 693-96 (Minn. 1997) (addressing claim of newly discovered evidence in appeal from denial of second petition for postconviction relief, even though appellant had brought previous postconviction petition and appeal that raised claims of ineffective assistance of counsel and other newly discovered evidence). 

In this case, appellant’s first petition argued that his sentence was illegal under newly issued case law and requested resentencing.  His second petition requested vacation of his conviction and sentence alleging that the statute that he was convicted under was invalid.  The current petition raises claims that were not raised in prior petitions, therefore, the postconviction court erred by summarily dismissing appellant’s petition under Minn. Stat. § 590.04, subd. 3.  But, a thorough review of the record leads us to conclude that appellant is not entitled to relief and that the petition should have been dismissed, without an evidentiary hearing, on other grounds.  See Hummel v. State, 617 N.W.2d 561, 563-64 (Minn. 2000) (affirming district court’s summary dismissal, but on different grounds, and citing rule that no evidentiary hearing is required if the “petition, files, and record conclusively show that the petitioner is entitled to no relief”) (quotation omitted).

II.        Blakely claim

Appellant first contends that his 90-month upward-departure sentence violated his Sixth Amendment rights under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Blakely was a modification of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), in which the Supreme Court held that any facts, other than the fact of a prior conviction, that increase the penalty for an offense beyond the statutory maximum must be proved to a jury beyond a reasonable doubt.  Id. at 490, 120 S. Ct. at 2362-63.  Blakely clarified that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings.”  Blakely, 542 U.S. at ___­, 124 S. Ct. at 2537.  The Minnesota Supreme Court has determined that Blakely applies to sentences imposed under this state’s sentencing guidelines.  State v. Shattuck, 704 N.W.2d 131, 141–42 (Minn. 2005).  But the supreme court also held that Blakely announced “a new rule of constitutional criminal procedure unavailable for collateral use;” not a “watershed” rule to be applied retroactively.  State v. Houston, 702 N.W.2d 268, 273–74 (Minn. 2005).  “[E]xtending the benefit of the Blakely rule beyond those cases pending on direct review at the time of the announcement of the rule would undermine the retroactivity policy of validating good-faith state court decisions and preserving finality.”  Id. at 273. 

Minn. R. Crim. P. 28.02, subd. 4(3), requires that a criminal defendant appeal within 90 days after entry of judgment.  A conviction becomes final after the time for appeal is exhausted.  O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004).

Appellant did not seek direct review, and his conviction and sentence became final 90 days after entry of judgment on October 3, 2000.  Blakely was not decided until June 24, 2004, more than three years after appellant’s sentence became final.  Because appellant’s case was final at the time of the Blakely decision, he is not entitled to relief under Blakely.

III.       Ineffective assistance of counsel claims

      a.         Failure to challenge sentence under Apprendi           

Appellant contends that his trial counsel was ineffective because “being a competent professional lawyer, [he] was fully conscience [sic] that the upward depa[r]ture [was] illegal and in violation of the Petitioner’s 6th Amendment [rights], and he failed to argue the violation . . . .”  Appellant cites Apprendi in support of this argument.

A postconviction petitioner who has raised claims in previous postconviction petitions is procedurally barred from bringing claims raised or that could have been raised in the previous petitions.  See Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (applying rule from State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), to situation where petitioner did not raise issues in his previous petitions for postconviction relief).  The exceptions to the Knaffla rule are when (1) a claim is so novel that the legal basis was not available on previous review, or (2) a claim that the petitioner did not “deliberately and inexcusably” fail to raise previously when fairness requires consideration of the claim.  Dukes, 621 N.W.2d at 251.  

“Claims of . . . ineffective assistance of trial counsel generally may not be raised in a petition for postconviction relief if the petitioner knew of the claim at the time of an earlier petition . . . .”  Dunn v. State, 578 N.W.2d 351, 352 (Minn. 1998).  In this case, appellant knew or should have known of both the factual and legal bases for his ineffective-assistance-of-counsel claim based on Apprendi when he filed his prior petitions.  Appellant makes no argument that he is raising a novel legal theory not previously available, or that fairness requires consideration of his claim.  Therefore, appellant’s claim that his counsel was ineffective for failing to challenge his sentence under Apprendi is procedurally barred.         

Even if we addressed this claim on the merits, we note that there is no reason trial counsel should have argued that the upward departure in this case violated appellant’s Sixth Amendment right to a jury trial under Apprendi because, at the time of appellant’s conviction and sentencing, Apprendi only prohibited sentences beyond the statutory maximum based on judicial determination of aggravating factors.  Appellant’s sentence of 33 years (396 months) was not longer than the 40-year statutory maximum for second-degree murder.  See Minn. Stat. § 609.19, subd. 1 (2000); see also State v. Allen, 706 N.W.2d ­­40, 44 (Minn. 2005) (“For [appellant] to have objected on Apprendi grounds at sentencing would have been of little avail; before Blakely was decided, our understanding of Apprendi was that the ‘statutory maximum’ penalty authorized by the jury’s verdict was the maximum sentence allowed by the statute defining the offense.”).

b.         Coercing to plead guilty despite alleged knowledge of co-defendant’s confession


Appellant also alleged ineffective assistance of counsel based on his bald assertion that his trial counsel coerced him into pleading guilty when counsel knew that appellant’s codefendant had confessed to a jail-house informant that he (co-defendant) had committed the shooting with which appellant was charged, and was framing appellant.  Appellant further asserted, without evidentiary support, that “[the jail-house informant’s] statements was [sic] examined and proven reliable and admissible as evidence.”  Because appellant fails to provide any evidence that he recently discovered this “evidence” such that it could not have formed the basis of a claim in a previous petition, this claim is also procedurally barred under the Knaffla rule.  See Henderson v. State, 675 N.W.2d 318, 323 (Minn. 2004) (placing burden on the petitioner to show why claims are not procedurally barred, by noting that “[petitioner] set[] forth no evidence suggesting why his claims [were] not procedurally barred. . . . [T]here is no evidence that the claims were not known at the time of [previous appeal] . . . .”).

            Even if this claim were not procedurally barred, appellant has not made the minimal factual showing necessary to obtain an evidentiary hearing on this claim.  A person convicted by his guilty plea may seek to prove at a postconviction evidentiary hearing that his plea was made involuntarily or without knowledge of the charges, the law, or the consequences, such that he is entitled to withdraw the plea.  Brown v. State, 449 N.W.2d 180, 183 (Minn. 1989).  The district court has discretion in such matters and need allow the withdrawal of a plea only if it is necessary to correct a manifest injustice.  Minn. R. Crim. P. 15.05, subd. 1.  A manifest injustice occurs if a defendant is coerced into pleading guilty.  State v. Kaiser, 469 N.W.2d 316, 319 (Minn. 1991).  On a postconviction petition to withdraw a guilty plea, the court need not grant an evidentiary hearing unless the court deems such a hearing necessary to resolve a disputed fact issue created by conflicting affidavits or based on assertions outside the record.  Saliterman v. State, 443 N.W.2d 841, 843 (Minn. App. 1989), review denied (Minn. Oct. 13, 1989).

To obtain postconviction relief based on ineffective assistance of counsel, the appellant must show that his counsel’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)).  In the guilty-plea context, the petitioner must show a reasonable probability that he would not have pleaded guilty to the crime and would have insisted on going to trial but for his counsel’s unprofessional errors.  Berg v. State, 557 N.W.2d 593, 596 (Minn. App. 1996) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985)).

When a postconviction petitioner seeks an evidentiary hearing, Minn. Stat.            § 590.04, subd. 1 (2004), requires the petitioner “to allege facts that, if proven would entitle him to the requested relief.”  Opsahl, 677 N.W.2dat 423.  A postconviction court need not grant an evidentiary hearing when the allegations in the petition are “merely argumentative assertions without factual support.”  Patterson v. State, 670 N.W.2d 439, 443 (Minn. 2003).

In this case, appellant does not present any facts to show that his plea was “coerced” by counsel, and the record does not support a claim of coercion.  Appellant testified at the plea hearing that no one threatened him or promised him anything other than the promises spelled out in the plea agreement.  He also testified that he had discussed the plea with his counsel and did not have any questions regarding his plea or his counsel’s advice.  Appellant has not supported this claim with even minimal evidence and is not entitled to relief on it.  The district court did not err in denying appellant’s petition without an evidentiary hearing.