This opinion will be unpublished and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

C1-96-703

Edward Lee Davis, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed November 26, 1996

Affirmed

Parker, Judge

Ramsey County District Court

File No. 9102096

Edward Lee Davis, 1101 Linden Lane, Faribault, MN 55021 (appellant pro se)

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

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 Parker, Presiding Judge, Peterson, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellant Eddie Lee Davis was convicted of aggravated robbery in violation of Minn. Stat. SSSS 609.245, 609.11, and 609.05. On direct appeal, we affirmed his conviction in an unpublished opinion. See State v. Davis, No. C7-92-1037 (Minn. App. Jan. 5, 1993). Subsequently, Davis filed a pro se motion and two accompanying affidavits, which the trial court treated as a petition for postconviction relief; the trial court then summarily denied the petition. Davis appeals, arguing that it was an abuse of discretion to dismiss his petition summarily. Davis also claims that the prosecution committed misconduct by failing to disclose the identity of a witness. We affirm.

D E C I S I O N

In postconviction proceedings, the petitioner bears the burden of proving, by a fair preponderance of the evidence, facts warranting relief. Minn. Stat. § 590.04, subd. 3 (1994). On appeal from a denial of postconviction relief, the reviewing court is limited to determining whether there is sufficient evidence to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn.1992) (citing Gustafson v. State, 477 N.W.2d 709,712 (Minn.1991)). Absent an abuse of discretion, a trial court's postconviction decision will not be disturbed on appeal. Id. at 25.

1. Summary Denial

With respect to summary denial of a postconviction petition, Minn. Stat. § 590.04 subd. 3 (1994), provides in part:

The 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.

Applying this language, the Minnesota Supreme Court has held that a claim raised on direct appeal will not be considered upon a subsequent petition for postconviction relief. Case v. State, 364 N.W.2d 797, 799 (Minn.1985) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).

In 1992, Davis appealed the trial court's denial of his motion for a new trial based on newly discovered evidence. We affirmed in an unpublished opinion, holding that the newly discovered evidence could have been discovered with due diligence before trial. Further, we could not conclude that the new evidence would probably produce a more favorable result if the case were retried. See State v. Davis, No. C7-92-1037 (Minn. App. Jan. 5, 1993).

In his postconviction petition, Davis merely requested the same relief, based upon the issues previously raised to and decided by this court. Therefore, the trial court did not commit an abuse of discretion by summarily denying Davis' petition for postconviction relief.

Furthermore, we refuse to re-examine whether newly discovered evidence exists warranting a new trial. We have already considered this issue on direct appeal and upheld the trial court's denial of a new trial. Id. Davis may not relitigate this issue in a subsequent petition for postconviction relief. See Case, 364 N.W.2d at 799. It was not, consequently, an abuse of discretion for the postconviction court to deny an evidentiary hearing on Davis' petition.

2. Prosecutorial Misconduct

Minnesota appellate courts have consistently held that a claim known but not raised at the time of direct appeal will not be considered upon a subsequent petition for postconviction relief, unless the "claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided." Id. at 800. In limited situations, if fairness so requires and if the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal, a reviewing court will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available. Fox v. State, 474 N.W.2d 821, 825 (Minn.1991).

Davis' claim of prosecutorial misconduct appears to have been known at the time of direct appeal. It consists of an accusation, unsupported by the record, that the prosecution knew of and "suppressed" the "newly discovered evidence" raised as an issue upon that earlier appeal. On that appeal, Davis was represented by counsel, who raised three issues, none of which included a claim of prosecutorial misconduct. We conclude that his appellate counsel limited the issues to those which he believed were legitimately debatable. Davis has not presented any arguments why this issue is so novel that its legal basis was not reasonably available to his counsel at the time of his direct appeal. Moreover, Davis has presented no facts to indicate that fairness requires that the issue be considered by this court upon postconviction review. Therefore, we conclude that since this issue was reasonably available and not raised upon direct appeal, Davis is precluded from subsequently raising it in a petition for postconviction relief.

Affirmed.