This opinion will be unpublished and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
Darwin Ray Battle-Bey,
State of Minnesota,
Filed August 14, 2007
Ramsey County District Court
No. 91-2843 (5127529)
Battle-Bey, #100344 MCF-Stillwater,
Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and
Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN 55102-1657 (for respondent)
Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Pro se appellant Darwin Ray Battle-Bey challenges a district court order that summarily denied his second petition for postconviction relief. We affirm.
found appellant guilty of second-degree intentional murder and second-degree felony
murder. The district court sentenced appellant
on the intentional-murder count to 480 months in prison, which is the statutory
maximum sentence and an upward departure from the presumptive sentence of 406
months. On direct appeal, this court
affirmed appellant’s conviction and sentence.
Appellant filed his first petition for postconviction relief in 1996. The district court summarily denied relief. Appellant attempted to appeal the denial of relief, and this court dismissed the appeal for noncompliance with procedural rules. This court dismissed a second attempted appeal as untimely. Appellant also filed a federal habeas petition, which was denied as untimely.
Appellant filed the current postconviction petition in February 2005. By order filed May 11, 2006, the district court summarily denied relief. This appeal followed.
D E C I S I O N
petition for postconviction relief is a collateral attack on a judgment which
carries a presumption of regularity and which, therefore, cannot be lightly set
aside.” Pederson v. State, 649 N.W.2d 161, 163 (
court may summarily deny a second or successive 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). And
“where direct appeal has once been taken, all matters raised therein, and all
claims known but not raised, will not be considered upon a subsequent petition
for postconviction relief.” State v. Knaffla, 309
With one exception, all of the claims raised by appellant in the current postconviction proceeding involve alleged errors that occurred during trial or during direct appeal. These claims were or should have been known at the time of appellant’s direct appeal or his first postconviction proceeding. Appellant has not presented any evidence or legal authority that would justify applying an exception to the Knaffla rule. See Spears, 725 N.W.2d at 700 (discussing exceptions to Knaffla rule). Therefore, these claims are barred under Knaffla and Spears.
claim that is not barred under Knaffla
and Spears is a claim of newly
discovered evidence. “[A]n evidentiary hearing is not required
unless facts are alleged which, if proved, would entitle a petitioner to the
requested relief. The petitioner’s
allegations must be more than argumentative assertions without factual support.” Hodgson
v. State, 540 N.W.2d 515, 517 (
newly discovered evidence claim is based on allegations in the affidavit of
Jason Mann, which appellant attached to his petition. But although Mann’s signature appears on the
affidavit in a statement that declares that the affidavit is true and correct,
the affidavit does not indicate that Mann signed the affidavit in the presence
of a notarial officer. Instead, beneath
Mann’s declaration there is a statement that the affidavit was prepared by
appellant. This statement contains
appellant’s signature, and in the middle of the statement there is a notary
stamp and the signature of a notary public, which suggests that it is
appellant’s signature, rather than Mann’s, that the notary is acknowledging. Also, Mann’s declaration states that Mann
signed the affidavit on May 21, 2003, and the statement that the affidavit was
prepared by appellant states that appellant prepared the affidavit on February
2, 2005. The placement of the notary’s
stamp and signature and the statement that Mann signed the affidavit almost two
years before appellant prepared the affidavit are not sufficient to establish
the authenticity of the affidavit. See
The district court did not abuse its discretion in summarily denying appellant’s postconviction petition.