This opinion will be unpublished and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
Larry Roosevelt Noble, petitioner,
Filed March 28, 2006
Hennepin County District Court
File No. 2024799
Larry Roosevelt Noble,
OID #209799, MCF,
Mike Hatch, Attorney
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
Appellant challenges the district court’s denial of his petition for postconviction relief, arguing that (1) the district court abused its discretion by refusing to hold an evidentiary hearing; and (2) his sentence constituted an upward durational departure in violation of his constitutional rights under Blakely. Because the district court did not abuse its discretion in denying an evidentiary hearing, and appellant’s sentence does not violate his constitutional rights, we affirm.
In March 2002, following a heated argument, appellant Larry Roosevelt Noble shot his pregnant girlfriend in the back. Appellant was charged with attempted second-degree murder, in violation of Minn. Stat. §§ 609.19, subd. 1(1), .17 (2000), and unlawful possession of a handgun, in violation of Minn. Stat. § 624.713, subd. 1(b) (2000). The complaint was later amended to add a count of attempted second-degree murder of the victim’s unborn child, in violation of Minn. Stat. §§ 609.2662(1), .17 (2000). Following a jury trial, appellant was convicted of all charges.
In August 2002, the district court sentenced appellant to 336 months in prison, which included a presumptive 183-month sentence for the attempted second-degree murder of the victim; a permissive consecutive 153-month sentence for the attempted second-degree murder of the victim’s unborn child, which was also the presumptive duration; and a concurrent 60-month sentence for the handgun conviction.
Subsequently, appellant filed a direct appeal challenging his convictions and sentences. This court affirmed in State v. Noble, 669 N.W.2d 915, 918 (Minn. App. 2003), and the Minnesota Supreme Court denied review on December 23, 2003. Appellant did not file a petition for writ of certiorari to the United States Supreme Court.
In December 2004, appellant filed a petition for postconviction relief under Minn. Stat. § 590.01, subd. 1 (2004), arguing that (1) he was entitled to an evidentiary hearing, which would establish that the victim was not pregnant on the day of the shooting; and (2) his sentence violated his Sixth Amendment rights under Blakely. The district court denied appellant’s petition for postconviction relief, concluding that appellant was not entitled to a hearing because he failed to allege facts entitling him to an evidentiary hearing. But the district court did not address whether the sentence violated appellant’s Sixth Amendment rights. This appeal follows.
D E C I S I O N
Appellant raises two issues on appeal. First, appellant argues
that the district court erred in refusing to hold an evidentiary hearing based
on the allegation in his postconviction petition that the victim was not
pregnant on the day of the shooting.
Petitions for postconviction relief are collateral attacks on judgments which carry a presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (
The district court
must grant an evidentiary hearing for a postconviction appeal “[u]nless the
petition and the files and records of the proceeding conclusively show that the
petitioner is entitled to no relief[.]”
Here, appellant asserts that the victim was not pregnant, but offers no evidence in support of this assertion. Rather, appellant’s petition contains nothing more than the allegation that “reasonable investigation would have revealed that [the victim] . . . was not pregnant.” Given that appellant was found guilty of attempted murder of an unborn child, appellant was required to do more than allege what a “reasonable investigation” would disclose in order to obtain an evidentiary hearing. Because appellant did not meet his burden in establishing that there is a material fact in dispute, the district court did not abuse its discretion in denying appellant’s request for an evidentiary hearing.
Second, appellant contends that his sentence
violates his Sixth Amendment rights because the aggravating factors
supporting the upward durational departure were not found by a jury. Appellant’s arguments rely on the United
States Supreme Court’s holding in Apprendi
In Apprendi, the United States Supreme
Court held that any fact, other than the fact of a prior conviction, that
increases the penalty for an offense beyond the statutory maximum must be
submitted to a jury and proved beyond a reasonable doubt. 530
Supreme Court has concluded that Blakely applies
to sentences imposed under the Minnesota Sentencing Guidelines. State
v. Shattuck, 704 N.W.2d 131, 141 (
Here, appellant was convicted and sentenced in 2002. This court affirmed the conviction and sentence, and the supreme court denied review on December, 23, 2003. The time for petition for writ of certiorari to the United States Supreme Court elapsed on or about March 23, 2004, at which point appellant’s sentence became final. See Sup. Ct. R. 13.1 (providing that a petition for a writ of certiorari is timely when filed within 90 days after entry of judgment or denial of discretionary review by the state court of last resort). Because appellant’s conviction was final months before Blakely’s effective date, he cannot benefit from the rule enunciated therein.
Further, because appellant’s consecutive sentence
was permissive and there was no upward departure, the rule of law enunciated in
Blakely has no application to appellant’s
sentence. In State v. Senske, we held that Blakely
does not apply to consecutive sentences when the offenses are “crimes against
persons” because such sentences are permissive under Minnesota Sentencing
Guidelines. 692 N.W.2d 743, 748–49 (Minn. App. 2005), review denied (
Blakely, while presuming a “standard range” sentence
(or “presumptive sentence” in
was given consecutive sentences for the crimes of attempted murder of the victim; and attempted murder of the victim’s
unborn child. See Minn. Stat. § 609.2662 (2000) (defining second-degree
murder of unborn child); see also Minn.
Stat. § 609.2691 (2000) (“[A] prosecution for or conviction under sections 609.2661 to 609.268
[crimes against unborn child] is not a bar to conviction of or punishment for
any other crime committed by the defendant as part of the same conduct.”); see also State v. Merrill, 450 N.W.2d
318, 321 (
Appellant also asserted in his postconviction petition that the prosecution
violated his Brady rights by
withholding evidence that the victim was not pregnant and that his defense
counsel was ineffective for informing him that the victim was pregnant the day
of the shooting. Issues
raised in a petition for postconviction relief but not addressed by a party’s
brief are considered waived. Rainer v. State, 566 N.W.2d 692, 694,