This opinion will be unpublished and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
Lawrence C. Anderson, petitioner,
State of Minnesota,
Filed November 21, 2006
Mille Lacs County
District Court File No. KX-00-141
Lawrence C. Anderson, #207311, MCF-Rush City, 7600 525th Street, Rush City, MN 55069 (pro se appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Jan Kolb, Mille Lacs County Attorney, Mark J. Herzing, Assistant County Attorney, Courthouse Square, 525 Second Street Southeast, Milaca, MN 56353 (for respondent)
Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal following summary denial of his petition for postconviction relief, appellant Lawrence Anderson, a/k/a Lawrence Walksalone, argues that (1) the district court erred by allowing racial bias to affect the trial outcome; (2) he received ineffective assistance of trial counsel; (3) the district court erred by subjecting him to double jeopardy; (4) appellant received ineffective assistance of appellate counsel; and (5) the district court erred by denying appellant’s petition without an evidentiary hearing. We affirm.
D E C I S I O N
A postconviction petition provides an appellant with access to the courts to challenge a conviction if: “(1) the conviction obtained or the sentence or other disposition made violated the person’s rights under the Constitution or laws of the United States or of the state; or (2) scientific evidence not available at trial . . . establishes the petitioner’s actual innocence.” Minn. Stat. § 590.01, subd. 1 (2004).
If appellant either knew or should have known of an issue at the time the direct appeal was taken, courts generally will not consider the issue when raised in a petition for postconviction relief. Cuypers v. State, 711 N.W.2d 100, 103 (Minn. 2006); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). Appellate courts may review issues not previously raised, even if known at the time of direct appeal, if the issue involves novel legal claims or implicates the interests of justice. Roby v. State, 547 N.W.2d 354, 356-57 (Minn. 1996).
Appellant, a Native American, argues that racial bias affected his convictions for first- and second-degree criminal sexual conduct in two ways: (1) a Native-American potential juror was arrested; and (2) the prosecutor failed to arrest a Caucasian witness who allegedly tampered with appellant’s mail. Although this claim could have been raised in appellant’s direct appeal, we review the claim in the interests of justice.
The record indicates that a Native-American potential juror was taken into custody during his individual voir dire session because he had an outstanding warrant for his arrest. But contrary to appellant’s contention, it was the prosecutor, not the public defender, who first learned of the potential juror’s legal status during a routine check of the criminal backgrounds of potential jurors. Moreover, the record indicates that the court carefully considered the potential juror’s situation and took many precautions to avoid impropriety or bias in the jury selection. The district court arranged for the Native-American potential juror to be taken into custody without disclosing this to the remaining potential jurors. Upon resolution of the potential juror’s legal situation later that same day, the court reconsidered the potential juror and allowed the attorneys to argue excusing him for cause. The juror was excused for cause, which this court has already found proper. State v. Anderson, No. C2-01-1777, 2003 WL 174929, at *5 (Minn. App. Jan. 17, 2003), review denied (Minn. Apr. 15, 2003) (Anderson I). Because of the efforts made by the district court to avoid racial bias in dealing with this juror, we conclude that appellant’s right to a fair trial was not affected.
Appellant asserts that evidence at trial suggested that a Caucasian witness tampered with his mail. He argues that the fact that the state did not arrest and prosecute this witness is evidence of discriminatory enforcement based on race. We disagree. Even assuming some evidence existed supporting appellant’s allegation, the witness is not accused of the same crime as appellant and is therefore not similarly situated. See Thul v. State, 657 N.W.2d 611, 616 (Minn. App. 2003), review denied (Minn. May 28, 2003) (stating that for a discriminatory enforcement claim, appellant must show that others similarly situated were not prosecuted and that the reason appellant was singled out for prosecution was based on an impermissible factor such as race). We conclude that appellant’s argument is without merit.
As he did on direct appeal, appellant argues that his trial counsel provided ineffective assistance. We decided that issue in Anderson I and decline to readdress it here. See Roby, 547 N.W.2d at 356 (stating that issues decided on direct appeal are generally not considered in a petition for postconviction relief).
Appellant alleges he was subjected to double jeopardy because he was sentenced for both first- and second-degree criminal sexual conduct. This court reviews double jeopardy claims de novo. State v. Watley, 541 N.W.2d 345, 347 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). The prohibition against double jeopardy protects a criminal defendant against “a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.” State v. Humes, 581 N.W.2d 317, 320 (Minn. 1998). Here, the record indicates that although appellant was sentenced on one count of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct, the counts involved different victims. See State v. DeFoe, 280 N.W.2d 38, 41-42 (Minn. 1979) (explaining multiple-victim exception to statutory protection against double jeopardy). Accordingly, double jeopardy is not implicated here and the district court did not err in so holding.
Appellant asserts that he received ineffective appellate counsel. Because ineffective assistance of counsel claims involve mixed questions of law and fact, the standard of review is de novo. State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S. Ct. 2052, 2070 (1984)).
To prove ineffective assistance of counsel, appellant must show both that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceeding would have been different but for counsel’s unprofessional errors. State v. Cram, 718 N.W.2d 898, 906 (Minn. 2006) (citing and quoting Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). A claim of ineffective assistance of counsel requires more than merely an assertion that counsel’s performance was somehow defective. Here, appellant has done no more than make such an assertion. We conclude that the district court correctly denied appellant’s claim.
Appellant alleges that the district court erred by denying his petition for postconviction relief without an evidentiary hearing. “An evidentiary hearing is required whenever material facts are in dispute that . . . must be resolved in order to determine the issues raised on the merits.” Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002) (quotation omitted). But a “petitioner seeking postconviction relief has the burden of establishing, by a fair preponderance of the evidence, facts that would warrant relief.” Id. at 442. And the district court need not conduct an evidentiary hearing if, from the files and records, it determines that petitioner is entitled to no relief. Minn. Stat. § 590.04, subd. 1 (2004). A reviewing court will reverse the denial of postconviction relief only upon a showing of abuse of discretion. Ferguson, 645 N.W.2d at 446. Here, appellant has presented nothing that entitles him to relief. Thus, the district court did not err by summarily denying appellant’s petition for postconviction relief.
Finally, we have considered appellant’s additional pro se claims, including failure of the district court to take judicial notice of several alleged facts, and find them to be unsupported and without merit.