This opinion will be unpublished and may not be cited except as provided  
by Minn. Stat.  480A.08, subd. 3 (1994). 
 
 
STATE OF MINNESOTA IN COURT OF APPEALS C7-96-169 
 
 
Lazaro Despaigne Borrero, petitioner, Appellant, 
 
vs. 
 
State of Minnesota, Respondent. 
 
 
Filed August 13, 1996 Affirmed Amundson, Judge 
 
Ramsey County District Court File No. K5-93-765  
 
 
Lazaro Despaigne Borrero, MCF-Oak Park Heights, Box 10, Stillwater,  
MN  55082-0010  (Pro Se) 
 
Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445  
Minnesota Street, St.  Paul, MN 55101, Susan Gaertner, Ramsey County  
Attorney, Darrell C. Hill, Assistant  County Attorney, 50 West Kellogg  
Boulevard, Suite 315, St. Paul, MN  55102 (for  Respondent) 
 
	Considered and decided by Schumacher, Presiding Judge,  
Amundson, Judge, and  Harten, Judge. 
 
 
 U N P U B L I S H E D   O P I N I O N 
 
AMUNDSON, Judge 	Appellant contends the trial court abused its  
discretion when it dismissed his petition  for postconviction relief without  
appointing counsel or granting him an evidentiary hearing.   We affirm. 
 
FACTS 
 
	A jury found appellant Lazaro Despaigne Borrero guilty of illegal  
possession and  sale of cocaine and illegal possession of a pistol.  Before  
sentencing, Borrero filed a letter in  which he requested a judgment of  
acquittal or a new trial on these bases:  he was denied a  fair trial, because  
all judicial officers and the jury were of a race different from his; the   
verdict was not supported by the evidence and is contrary to the law; and  
he should have  been able to present certain evidence at trial, including the  
identity and testimony of the  confidential informant.  The trial court  
denied the motion, finding that the public defender  had been "strong and  
effective" in defending Borrero and the jury had been "fair and  impartial  
in all regards," and sentenced Borrero. 	On appeal from the  
judgment, this court affirmed Borrero's conviction.  State v.  Borrero, No.  
C0-93-2458 (Minn. App. Sept. 27, 1994), review denied (Minn. Nov. 16,   
1994). 	Borrero then brought a pro se petition for postconviction relief,  
appointment of  counsel, and an evidentiary hearing.  Borrero contended  
that he had received ineffective  assistance of trial counsel.  The trial court  
dismissed the petition because Borrero had not  raised the ineffective  
assistance of counsel claim in his direct appeal even though the claim  had  
been available to him at that time.  Similarly, because Borrero had already  
had the  assistance of the State Public Defender in the direct appeal, the  
court found Borrero was not  entitled to appointed counsel for the  
postconviction matter.  Finally, the court found Borrero  was not entitled  
to an evidentiary hearing.  This appeal followed. 
 
DECISION 
 
Petition for postconviction relief based on ineffective assistance of counsel  
	This court will not disturb a postconviction court's decision absent  
an abuse of  discretion.  Berry v. State, 364 N.W.2d 795, 796 (Minn.  
1985).  Our review is limited to a  determination of whether the evidence  
is sufficient to sustain the findings. Bliss v. State,  457 N.W.2d 385, 391  
(Minn. 1990). 	Borrero based his postconviction petition upon alleged  
ineffective assistance of  counsel, an issue that was available at the time of  
his direct appeal, but which Borrero chose  not to raise.  This court will not  
consider in a postconviction petition any claim that was  known but not  
raised in a prior direct appeal, unless the claim is so novel that its legal  
basis  was not reasonably available to counsel at the time of the direct  
appeal.  Roby v. State, 531  N.W.2d 482, 484 (Minn. 1995).  However, if  
fairness requires, and the petitioner did not  "deliberately and inexcusably"  
fail to raise the issue on direct appeal, this court may review  the merits of  
the claim.  Id.  "This rule includes claims of ineffective assistance of trial   
counsel."  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).   	The  
arguments Borrero now raises in his pro se brief are substantively similar  
to the  arguments that defense counsel made in Borrero's motion for  
judgment of acquittal or new  trial.  Indeed, at the motion hearing, the trial  
court commented on the strength of defense  counsel's representation at  
trial.  If those issues existed at the time of the motion hearing,  they also  
existed at the time of the direct appeal and, thus, the claim of ineffective   
assistance of trial counsel is not "so novel" that it was unavailable at the  
time of the direct  appeal.  See Roby, 531 N.W.2d at 484.  Nor does the  
record show that Borrero's failure to  raise the issue was excusable.  Id.  
	Borrero contends, however, that a postconviction proceeding is the  
only appropriate  forum for raising a claim of ineffective assistance of trial  
counsel.  We disagree.  The  Minnesota Supreme Court noted that, even  
though the preferred method of challenging  effectiveness of trial counsel  
may be by postconviction proceeding, a defendant is  "procedurally barred  
from pursuing postconviction relief * * * " on the effectiveness of  counsel  
issue if he chose to take a direct appeal first and failed to raise the issue in  
that  proceeding.  Fratzke, 450 N.W.2d at 102. 	We note that Borrero  
also appears to allege ineffective assistance of appellate  counsel from his  
direct appeal.  Borrero had the opportunity to present such an argument in   
the pro se brief he filed in that case.  This court reviewed Borrero's pro se  
arguments and  found them to be without merit. 	The trial court  
properly dismissed Borrero's petition for postconviction relief on the  basis  
that Borrero had known of the ineffective assistance of trial counsel claim  
at the time  of the direct appeal, but failed to raise it. 
 
Appointed counsel 
 
	Borrero contends that he was entitled to a have counsel appointed  
to him for his  postconviction petition.  We disagree.  Borrero relies on  
Harris v. State, 470 N.W.2d 167,  169 (Minn. App. 1991) (interpreting  
Minn. Stat.  590.05 (1990)).  However, the Minnesota  Legislature has  
amended that statute and superseded the holding in Harris.  The current   
version of that statute entitles a person, who is financially unable to obtain  
counsel, to a  state public defender only "if the person has not already had  
a direct appeal of the  conviction."  Minn. Stat.  590.05 (1994).  Because  
Borrero has already had a direct appeal  of his conviction, he was not per  
se entitled to representation from the state public defender.   The trial court  
properly denied Borrero's request for counsel. 
 
Evidentiary hearing 
 
	Borrero contends he was entitled to an evidentiary hearing on his  
claims for  postconviction relief.  Since he failed to raise a viable claim for  
relief, the trial court  properly denied his request for an evidentiary  
hearing.  
 
	Affirmed.