This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Lee Charles Draughn, petitioner,
Filed February 6, 2007
Hennepin County District Court
File No. 95085109
Lee Charles Draughn, OID No. 187052, MCF – Faribault, 1101 Linden Lane, Faribault, Minnesota 55021-6400 (pro se appellant)
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)
Considered and decided by Minge, Presiding Judge; Hudson, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
Pro se appellant Lee Charles Draughn challenges the district court’s order summarily denying his second petition for postconviction relief, arguing that the district court erred by concluding that the Knaffla rule procedurally bars his claims. We affirm.
D E C I S I O N
Appellant challenges the
district court’s order summarily denying his second petition for postconviction
relief, arguing that the district court erred by concluding that appellant’s
claims are barred by the Knaffla
rule. This court reviews a district
court’s denial of a petition for postconviction relief for an abuse of
discretion. Robledo-Kinney v. State, 637 N.W.2d 581, 585 (
A person convicted of a crime who
claims that the conviction or sentence violates the person’s constitutional
rights or the laws of this state or the United States may file a petition with
the district court in the county where the petitioner was convicted “to vacate and
set aside the judgment . . . or to resentence the petitioner or grant
a new trial or correct the sentence.”
In his second petition for postconviction relief appellant claims that: (1) the admission of Spreigl evidence violated the Supreme Court’s decision in In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970); (2) Hennepin County district court was not the proper venue for his trial; (3) his 1993 conviction for fifth-degree possession of cocaine should not have been considered in the computation of his criminal-history score; and (4) he was denied a fair trial because the district court did not instruct the jury that the use of a dangerous weapon was an element of the crime and the state did not prove that element beyond a reasonable doubt.
The district court concluded that these issues “were either raised or known at the time of [appellant’s] direct appeal and first petition for post-conviction relief,” and that his claims “do not fall under the exceptions to the Knaffla rule.” The district court concluded that appellant failed to show that fairness requires consideration of his issues, or that any of the issues raised are novel. In response, appellant contends that fairness requires consideration of his first three issues because he did not deliberately fail to raise them on direct appeal. Furthermore, appellant argues that his fourth issue is novel and that the legal basis for asserting it did not exist at the time of his direct appeal because the Supreme Court had not yet decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We find these arguments unpersuasive.
First, appellant’s argument that fairness requires consideration of his first three issues because he did not deliberately fail to raise them on his direct appeal has no factual support in the record. Nor does appellant articulate any factual basis that would support a finding that his failure to raise these issues was not inexcusable.
appellant’s argument that his Blakely
issue is novel does not comport with the law.
Significantly, the Minnesota Supreme Court recently rejected this
argument in Mckenzie v. State, 713
N.W.2d 840 (
Blakely requires that any fact (other
than a prior conviction) that is necessary to support a sentence exceeding the
maximum authorized by the jury’s verdict or a guilty plea must be admitted by the
defendant or proven beyond a reasonable doubt.
these principles, the supreme court rejected appellant’s argument in Mckenzie that he was entitled to relief
under Blakely because the jury did
not specifically find beyond a reasonable doubt that he used a firearm in the
commission of a crime. Mckenzie,713 N.W.2d at 842. Further,
the supreme court concluded that because “Mckenzie’s case was not pending on
direct review when Blakely was
decided . . . Blakely does
not apply retroactively to Mckenzie’s case.”
Here, this court affirmed appellant’s conviction on July 1, 1997, and the time for filing a petition for certiorari ended 90 days later. Sup. Ct. R. 13.1. Accordingly, appellant’s case was not pending on direct review when Blakely was decided in 2004. Thus Blakely does not apply retroactively to his case. But, even if Blakely did apply retroactively to appellant’s case, his sentence does not violate the rule established in Blakely. The district court sentenced appellant to the presumptive sentence authorized by the facts the jury’s verdict established, stating that the sentence was “neither a dispositional nor a durational departure.”
Because the record and the law do not support appellant’s arguments, and because the district court properly applied the law, the district court’s denial of appellant’s second petition for postconviction relief was not an abuse of discretion.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.