This opinion will be unpublished and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
aka Douglas Welch, petitioner,
Filed October 10, 2006
Hennepin County District Court
File No. 97096972
Shakur Al-Hakim, #185149,
Mike Hatch, Attorney General,
Considered and decided by Hudson, Presiding Judge; Halbrooks, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Shakur Al-Hakim challenges the district court’s denial of his petition for postconviction relief regarding his 1998 conviction of and sentence for second-degree murder. Appellant argues that the district court abused its discretion by (1) failing to consider the Minnesota Supreme Court’s decision in State v. Shattuck, 704 N.W.2d 131 (Minn. 2005); (2) failing to address whether the upward departure provided in the plea agreement was improper based on a retroactive application of State v. Misquadace, 644 N.W.2d 65 (Minn. 2002); and (3) failing to hold an evidentiary hearing to address his claim of ineffective assistance of counsel.
is appellant’s second appeal to this court. Appellant filed his first petition for
postconviction relief in 2002 and appealed the denial of that petition in 2003. Welch
v. State, No. A03-111, 2003 WL 22016087 (
Because all of appellant’s current claims are either procedurally barred or have already been addressed by this court, we affirm.
Appellant was charged with first-degree
murder in 1997. Pursuant to a plea
agreement, appellant was convicted of and sentenced for second-degree murder in
1998. In January 2006, appellant filed
his second petition for postconviction relief.
The district court denied appellant’s petition, finding that several of
his claims were barred because they had already been decided by this
court. The district court also
determined that appellant’s claims were barred by State v. Knaffla, 309
D E C I S I O N
appeal, this court reviews a postconviction court’s findings “to determine
whether there is sufficient evidentiary support in the record” and reviews
denials of postconviction relief, including those based on the Knaffla procedural bar, for an abuse of
discretion. Dukes v. State, 621 N.W.2d 246, 251 (
this second petition for postconviction relief, “we will not consider claims
which appellant raised or knew of and could have raised in earlier
review.” Wayne v. State, 601 N.W.2d 440, 441 (
postconviction decision regarding a claim of ineffective assistance of counsel
involves mixed questions of fact and law and is reviewed de novo. Opsahl
v. State, 677 N.W.2d 414, 420 (
Appellant argues that his sentence, determined pursuant to a plea agreement, violated the rule delineated in Misquadace. This court already addressed the applicability of Misquadace to appellant’s case and held that Misquadace does not have a retroactive effect. Welch, 2003 WL 22016087, at *3; Welch v. State, No. A03-111 (Minn. App. Feb. 2, 2005) (order op.).
also argues that his sentence violates the rule set out in Shattuck, which determined that Blakely
v. Washington, 542
Appellant finally argues that he received ineffective assistance of counsel because his trial counsel failed to provide adequate assistance with an appeal of his 1998 conviction. The time for direct appeal of appellant’s case expired in 1999, and his current claim of ineffective assistance of counsel could have been raised when he filed his first postconviction petition in 2002. Appellant alleges no new facts or circumstances that would defeat the Knaffla procedural bar, nor does he offer an explanation of why his failure to raise this particular issue at the time of his first postconviction petition was not deliberate and inexcusable. We conclude that the district court did not abuse its discretion when it denied appellant’s second petition for postconviction relief.
The district court mistakenly
concluded that appellant did not request an evidentiary hearing. The record reflects that appellant requested
an evidentiary hearing on his ineffective-assistance-of-counsel claim. But “[a]n evidentiary hearing upon a petition
for postconviction relief is not required unless the petitioner alleges such
facts which, if proved by a fair preponderance of the evidence, would entitle
him or her to the requested relief.” Roby v. State, 547 N.W.2d 354, 356 (
 Appellant has since changed his name from Douglas Welch to Shakur Al-Hakim.