This opinion will be unpublished and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
Roger Joseph Foster,
State of Minnesota,
St. Louis County District Court
File No. K7-98-101824
Roger J. Foster, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Melanie S. Ford, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN 55802 (for respondent)
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.
In this appeal from an order denying a petition for postconviction relief, appellant argues that he was denied the effective assistance of trial counsel based on the failure to investigate or give notice of an alibi defense and the failure to challenge a sentencing departure. Appellant also argues that he was denied the effective assistance of appellate counsel based on the failure to pursue a number of issues on direct appeal and in postconviction proceedings. Appellant also claims that errors were committed in calculating his criminal-history score that the district court erroneously imposed consecutive sentences, and that prison authorities used the wrong evidentiary standard in prison disciplinary proceedings. We affirm.
Petitioner Roger Foster appeals the
district court’s summary denial of his third petition for postconviction
relief. The underlying offenses arise
from a 1998 crime spree for which Foster was convicted of 11 felony counts and
was sentenced to serve a total of 249 months for first-degree burglary (111
months), third-degree burglary (27 months concurrent), motor-vehicle theft (23
months concurrent), second-degree arson (51 months concurrent), two counts of first-degree
aggravated robbery (48 months consecutive for each), two counts of second-degree
assault (21 months consecutive for each), and unlawful possession of a firearm
(33 months concurrent). Foster’s first
petition for postconviction relief, which was heard in 2003, resulted in a
reduction of his sentence to 201 months.
The district court denied the remaining requests for postconviction relief,
which were based on a claim of ineffective assistance of trial counsel. We affirmed the conviction and the denial of
postconviction relief. Foster v. State, No. A03-991 (
In 2005, Foster sought a correction
of sentence, which the district court summarily denied, and we affirmed in Foster v. State, No. A05-1003 (
D E C I S I O N
The district court may deny without
a hearing a second or successive postconviction petition “for similar relief on
behalf of the same petitioner and may summarily deny a petition when the issues
raised in it have previously been decided by the Court of Appeals or the
Supreme Court in the same case.” Minn.
Stat. § 590.04, subd. 3 (2006); see
Spears v. State, 725 N.W.2d 696, 700
two exceptions to the Knaffla rule. A district court may address an issue that
was not previously raised “(1) if a novel legal issue is presented, or (2) if
the interests of justice require review.”
Spears, 725 N.W.2d at
700. To invoke the interests-of-justice
exception, a petitioner must demonstrate that fairness requires the district
court to address the issue, that the petitioner did not deliberately and
inexcusably fail to raise the issue previously, and that the claim has
a postconviction court’s findings to determine whether they are supported by sufficient
evidence in the record. Dukes v. State, 621 N.W.2d 246, 251 (
Foster argues that the district court abused its discretion by denying his petition for postconviction relief. The district court determined that most of Foster’s claims were barred because they had been raised or should have been raised in the earlier postconviction petitions. Foster claims that “newly discovered evidence” establishes that his trial counsel was ineffective and that his postconviction counsel failed to present this evidence to the postconviction court. But this newly discovered evidence, most of which was contained in his trial counsel’s file, does not provide a basis for the relief Foster seeks.
raises several claims of ineffective assistance of counsel. The claims against his trial counsel and his
postconviction counsel are interconnected in that Foster claims that his
postconviction counsel was ineffective in proving that his trial counsel was
ineffective. Foster first claims that his
trial counsel had a conflict of interest and that a letter written by Amanda
Niemi establishes that his trial counsel made inappropriate public comments
about the case while it was pending in district court, stating that he hoped
“those guys get locked up for a long time.”
Citing Cuyler v. Sullivan, 446
Foster also claims that newly discovered documents show that his trial counsel committed “perjury” when he misled the district court about his knowledge of alibi witnesses. The record indicates that, in the context of his request to the district court to allow alibi witnesses to testify at trial, despite late disclosure, Foster’s trial counsel stated that “[Foster] did indicate to me a couple of weeks ago or several--two or three weeks ago . . . that he had some folks that he wanted.” But his trial counsel did not “remember specifically if [Foster] gave [him] the names.” The new documents that Foster relies on are entirely consistent with his trial counsel’s original statement to the district court regarding the proposed witnesses, Carissa Sleen, Robert Baumchen, Sunny Thompson and Justin Sislo. The documents Foster relies on indicate that his trial counsel knew about the alibi witnesses weeks before trial, but only by nickname. He did not have full names and phone numbers or an opportunity to interview the witnesses until the morning of trial. As a matter of trial strategy, a defense attorney may choose not to disclose witnesses of whom the state has virtually no knowledge and who have not yet been interviewed. And as we observed previously, the district court’s determination that Foster’s trial counsel “argued vigorously for the introduction of the testimony and did not provide an inadequate defense” was not an abuse of discretion. Foster, No. A03-991, 2004 WL 1244151, at *7. Therefore, Foster’s “new” complaints regarding his trial counsel’s failure to investigate and present the alibi witnesses do not entitle him to relief.
next contends that he received ineffective assistance of postconviction
counsel. To show ineffective assistance
of counsel, Foster must demonstrate that his counsel’s representation fell
below an objective standard of reasonableness and that there is a reasonable
probability that, but for his counsel’s error, the result of the proceeding
would have been different. Carney v. State, 692 N.W.2d 888, 892 (
Foster first complains of his postconviction counsel’s failure to seek relief based on his trial counsel’s conflict of interest. But as discussed above, this argument is without merit. The same is true for Foster’s claims regarding his postconviction counsel’s failure to raise the issue of his trial counsel’s “perjury” because the evidence does not support Foster’s claim that his trial counsel lied. Foster also contends that his postconviction counsel was ineffective for failing to pursue witnesses Justin Sislo, Todd O’Donnel, and Amanda Niemi, and public-defender investigators David Langfeld and Michael Kirt. But these claims are without support in the record. To the contrary, the record establishes that Foster’s postconviction counsel attempted to secure the presence of incarcerated persons Carissa Sleen, John Douglas, and Clayton Celley at the April 2003 postconviction evidentiary hearing and that the district court issued several orders to that effect. Moreover, Douglas and Thompson testified at the postconviction hearing. In light of the efforts of postconviction counsel to secure the presence of witnesses, it appears to have been a strategic decision not to subpoena the other individuals. As a letter from postconviction counsel to Foster indicates, the two did not entirely agree on the postconviction strategy.
Furthermore, Sislo previously had refused to cooperate, and O’Donnel had changed his story since the statement he gave in June 1999. Therefore, the decision of Foster’s postconviction counsel to forego testimony from Sislo, O’Donnel, and Niemi at the postconviction hearing is entirely within the bounds of reasonable representation. Indeed, if Foster’s postconviction counsel had presented the evidence, it likely would have been inadmissible hearsay because Sislo was uncooperative; highly unreliable, since O’Donnel’s statements were inconsistent; and unpersuasive, since Niemi’s statement does not establish a conflict of interest. And although investigator Langfeld was discharged from the public defender’s office, there is no evidence that it was because of his work on Foster’s case.
At Foster’s request, his postconviction counsel offered Niemi’s letter to the district court at the postconviction hearing, noting that it was “something that Mr. Foster has asked me to insert into the record, again in order to preserve any claims that he might have when it comes to [the] pro se supplemental phase of any appeal that may follow.” The state offered in response a letter that the state contends Foster wrote, which instructed the recipient to tell “Amanda” to “write down what Todd said.” Sustaining objections to both letters, the district court made them part of the court file. Foster’s counsel then called two witnesses. Thompson testified about Foster’s alibi in an evasive manner. And when offering his testimony about Foster’s alibi, Douglas was so uncooperative that the district court discredited the testimony and held Douglas in contempt.
In sum, Foster
has made no new claims of ineffective assistance of counsel against his trial
counsel that would warrant relief. And
the record establishes that his postconviction counsel conducted a thorough
investigation into Foster’s claims against his trial counsel, introduced alibi
witnesses at the postconviction hearing, argued vigorously for relief on the
basis of ineffective assistance of trial counsel, and was successful in getting
Foster’s sentence reduced by 48 months.
Moreover, as the district court found, Foster’s claim of ineffective assistance
of postconviction counsel fails because it is predicated on the meritless claim
of ineffective assistance of trial counsel.
See Sutherlin v. State, 574
N.W.2d 428, 435 (
As to Foster’s claim that his criminal-history score is erroneous, the record indicates that the weight to be given to his prior convictions and the alleged “Hernandez method” error were thoroughly addressed at his sentencing hearing. Foster fails to establish how these alleged errors in the calculation of his criminal-history score affected his sentence. Furthermore, in both his 2002 supplemental brief and his 2005 motion for correction of sentence, Foster’s counsel argued that Foster’s sentence was improper, but for reasons other than errors in the criminal-history score or the calculation method.
Foster maintains that the district court abused its discretion in denying his request for an evidentiary hearing on the instant petition for postconviction relief. But because the record conclusively shows that Foster is not entitled to relief, the district court’s summary denial of the petition without an evidentiary hearing was not an abuse of discretion.
argues that the district court abused its discretion in denying as untimely
Foster’s motion to remove for cause. “[T]here is no automatic removal as
of right in a postconviction proceeding.”
Hooper v. State, 680 N.W.2d
89, 92 (
Foster filed his motion to remove Judge Pagliaccetti for cause on March 13, 2006, three days after the judge had summarily denied Foster’s petition. Thus, Foster’s March 13 motion was untimely or, if not untimely, moot. Had the motion been timely, it was without merit as it was based solely on a handwritten note in the public defender’s file, allegedly written by his postconviction counsel during a telephone conversation with Fred Friedman, the chief public defender of the Sixth Judicial District, which states: “Both [trial counsel] and judge told [Friedman] that alibi witnesses went to charges on which client wasn’t charged . . . .” Foster claims that this notation indicates that the judge “lied” to Friedman and establishes grounds to reasonably question the judge’s impartiality.
the record makes evident that Judge Pagliaccetti understood that the alibi
witnesses were offered in defense of the first four counts of the
complaint. As the judge determined in
the first postconviction order, “[Trial counsel] explained that the witnesses
would establish an alibi for the offenses charged in Counts I, II, III, and
IV.” And even if the handwritten note
accurately reflects the judge’s statement, Foster fails to show that the
statement had any effect either on the judge’s reason for disallowing the alibi
witnesses at trial, which was the late disclosure, or on the postconviction
proceedings. Because Foster failed to
affirmatively demonstrate any bias, prejudice, partiality, or appearance of
impropriety that would constitute cause for removal, and because “[t]he mere
fact a judge presided at trial is not cause for removal in a postconviction
proceeding,” denial of the motion was warranted. Johnson
v. State, 486 N.W.2d 825, 828 (
We observe, however, that rule 26.03, subdivision 13(3), provides that such a motion shall be heard by the chief judge or the assistant chief judge if the chief is the subject of the motion. Therefore, a judge other than Judge Pagliaccetti should have ruled on the motion. But because the motion was entirely without merit and “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded,” Minn. R. Crim. P. 31.01, Foster is not entitled to relief on this ground.
Foster also argues that the district
court abused its discretion by failing to rule on the claim that the Department
of Corrections (DOC) improperly extended Foster’s incarceration for a minor
disciplinary offense by applying the “some evidence” standard rather than the
preponderance-of-the-evidence standard. See Carrillo v. Fabian, 701 N.W.2d 763,
For all of the foregoing reasons, the district court did not abuse its discretion by summarily denying the petition for postconviction relief.
 Because the state failed to file a brief in this matter, we have ordered the matter submitted on the merits pursuant to Minn. R. Civ. App. P. 142.03.