This opinion will be unpublished and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
Robert James Dixon,
Filed January 9, 2007
Hennepin County District Court
File Nos. 94033956, 95053595
Robert James Dixon, OID No.
180596, MCF/Rush City,
Mike Hatch, Attorney General,
Considered and decided by Minge, Judge; Hudson, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal from an order denying his postconviction petition to correct his 1995 sentence for second-degree murder and aggravated robbery, appellant argues that (1) the district court failed to file a departure report within the required 60-day period; (2) the district court sentenced the offenses in the wrong order; (3) although appellant agreed to the upward departures, his waiver of his right to be sentenced under the guidelines was not valid; (4) the guidelines unconstitutionally provided for departures based on judicial fact-finding, as later proscribed in Blakely; and (5) his attorney was ineffective in failing to file a direct appeal. We affirm.
On January 19, 1995, pursuant to a plea agreement, appellant Robert James Dixon pleaded guilty to second-degree murder and aggravated robbery. The district court convicted him and ordered that his sentences be served consecutively, for a total of 432 months in prison. Appellant’s sentence reflected an upward durational departure on both the second-degree murder and aggravated robbery offenses. Both offenses were sentenced with a criminal history score of zero. At the sentencing hearing, the district court announced the sentence for second-degree murder before the sentence for aggravated robbery, the reverse order in which they were committed.
Appellant did not file a direct appeal of his plea or sentence and the period for direct appeal expired in 1995. In September 2004, appellant filed his first petition for postconviction relief in which he argued that his guilty plea was not knowing and voluntary and that his conviction was not supported by sufficient evidence. On April 11, 2005, the district court denied appellant’s petition without a hearing. He appealed the district court’s decision in June 2005, but the appeal was dismissed at his request in September 2005.
On October 28, 2006, appellant filed his second petition for postconviction relief in which he argued that his sentence should be reduced from 432 months to 337 months. On January 30, 2006, the district court denied appellant’s petition without a hearing. This appeal follows.
D E C I S I O N
Appellant argues that the district
court abused its discretion by denying his petition for postconviction relief. On appeal, this court “review[s] a
postconviction court’s findings to determine whether there is sufficient evidentiary
support in the record.” Dukes v.
State, 621 N.W.2d 246, 251 (
Claims that were raised in an
earlier postconviction petition and matters that were known and could have been
raised will not be considered upon a subsequent petition for postconviction
is appellant’s second petition for postconviction relief and all of his claims
are procedurally barred under Knaffla
because each of appellant’s arguments could have been raised in his first
petition for postconviction relief.
Even if we were to consider the
merits of appellant’s claims, he would still not be entitled to relief. First, appellant is not eligible for relief
under Blakely, because his conviction
was final nearly ten years before Blakely
was decided. Blakely v. Washington, 542
Because appellant’s claims are both procedurally barred and without merit, we conclude that the district court did not abuse its discretion by denying appellant’s petition for postconviction relief without a hearing.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.