This opinion will be unpublished and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
State of Minnesota,
Filed June 13, 2006
Toussaint, Chief Judge
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Terry Lee Branson appeals from an order denying his postconviction petition, challenging a conviction and sentence for attempted kidnapping. Because we see no abuse of discretion and no error of law, we affirm.
In 1993, appellant pleaded guilty to charges of kidnapping and assault in the second degree. The district court ordered a presentence investigation, which included a psychological evaluation. Appellant was sentenced under the dangerous-offender statute to the maximum statutory sentences.
In 1995, appellant argued on
direct appeal that (1) the district court inappropriately applied the dangerous-offender
statute, (2) his sentences were inappropriately enhanced and run consecutively to
each other, and (3) his sentences unfairly exaggerated the criminality of his
conduct. His sentence was affirmed in
part and reversed in part. State v. Branson, 529 N.W.2d 1 (
In 1997, appellant filed a pro se petition for postconviction relief, arguing (1) ineffective assistance of trial and appellate counsel, (2) the psychological evaluation was unfairly a psychosexual evaluation, (3) inappropriate imposition of consecutive sentences with an unexpired conviction, (4) prosecutorial misconduct, (5) the district court engaged in improper speculation as to his future behavior, and (6) his sentence for kidnapping unfairly exaggerated the criminality of his conduct. The district court denied his petition.
In 2005, appellant filed a second petition for postconviction relief, raising issues previously raised in 1995 or 1997 and also arguing that the decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), should be applied retroactively to his sentence. The district court denied appellant’s second petition for postconviction relief on the grounds that Blakley did not apply and that the other issues had been raised previously.
“[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
Appellant is procedurally barred from raising his claims because he argued them in either his 1995 appeal or his 1997 postconviction-relief appeal. Further, none of the current claims is so novel that it could not have been discovered in appellant’s initial appeal or his subsequent 1997 postconviction petition. The district court correctly found that appellant knew of or should have known of the claims and the legal bases for the claims at the time of direct appeal.
Appellant also argues that Blakely applies retroactively to his
sentence because his sentence is not final as long as he has a form of appeal
available to him or until the sentence has completely expired. Whether a decision applies retroactively or prospectively
is a legal question. State v. Petschl, 692 N.W.2d 463, 470
(Minn. App. 2004), review denied (Jan.
20, 2005). The retroactive application
of a decision is an issue that this court reviews de novo. State v. Costello, 646 N.W.2d 204, 207
State v. Houston, 702 N.W.2d 268, 273-74 (