This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-96-2432

Anthony Charles Aleman, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed July 1, 1997

Affirmed

Huspeni, Judge

Hennepin County District Court

File No. 92089936

Anthony Charles Aleman, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se Appellant)

Hubert H. Humphrey III, State Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55487 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Paul R. Scoggin, Assistant Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Crippen, Judge, and Willis, Judge.

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

HUSPENI, Judge

Appellant challenges the trial court's summary denial of his postconviction petition, arguing that he is entitled to return of property taken as a result of execution of a search warrant, that he was incorrectly sentenced, that he was not permitted to present a theory of self-defense at trial, and that he was denied effective assistance of trial and appellate counsel. Because we conclude that appellant is precluded from raising any of these issues, we affirm.

FACTS

Appellant Anthony Charles Aleman was convicted of assaulting two police officers and recklessly discharging a weapon. The trial court departed upward in sentencing appellant because the police officers were in a vulnerable position and because appellant's conduct had placed a great many people at risk. On direct appeal, this court held that appellant's sentence was within the discretion of the trial court because his conduct was "particularly serious and constituted a greater than normal risk to the safety of others." See State v. Aleman, C5-93-2195 (Minn. App. July 14, 1994).

Appellant filed his first pro se petition for postconviction relief in February 1996, alleging that he was denied effective assistance of appellate counsel. The trial court held that appellate counsel was not obligated to raise all possible issues on direct appeal and denied the petition. Appellant did not challenge this denial.

Appellant filed a second pro se petition for postconviction relief in November 1996, seeking the return of property taken by the Minneapolis Police Department pursuant to a search warrant, challenging his sentence on the grounds that the district court cited improper reasons for departure and arguing that he had not been allowed to present a self-defense argument at trial. The district court summarily denied appellant's petition for postconviction relief. Appellant challenges that denial and on appeal raises the issue of ineffective assistance of trial and appellate counsel.

D E C I S I O N

[W]here a direct appeal has once been taken in a criminal case, all matters raised therein and all claims known but not raised will not be considered upon a subsequent petition for postconviction relief. Only where a claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time of direct appeal should postconviction relief be allowed.

Case v. State, 364 N.W.2d 797, 798 (Minn. 1985). Appellant had a direct appeal. See State v. Aleman, C5-93-2195 (Minn. App. July 14, 1994).

Appellant asserts that he is entitled to a return of property seized from him pursuant to a search warrant. Minnesota law restricts postconviction attacks to collateral attacks on the judgment of conviction and sentence. Minn. Stat. § 590.01 (1996). Aleman's demand for the return of his property is outside the scope of postconviction relief because it is not a challenge to the validity of his conviction or sentence. Therefore, the district court did not err in ruling that this issue was precluded from being raised in a petition for postconviction relief.

Appellant further argues that he was not permitted to present a theory of self-defense at trial. There is no indication that the legal basis for this claim was not available at the time of appellant's direct appeal. Because this claim was known but not raised on direct appeal, it could not be considered on a subsequent petition for postconviction relief.

Aleman also claims that the district court abused its discretion because it used improper grounds for departing from the sentencing guidelines. Because this claim was raised on appellant's direct appeal, he was not entitled to raise it in his petition for postconviction relief. Summary denial was again appropriate.

Lastly, Aleman claims that he was denied effective assistance of trial and appellate counsel. Appellant's claim of ineffective assistance of trial counsel is doubly precluded: the claim was known, but not raised on direct appeal, and it was not raised in the petition for postconviction relief on appeal here. Issues not litigated before the district court on a petition for postconviction relief cannot be raised in a subsequent appeal. See Hirt v. State, 309 Minn. 574, 244 N.W.2d 162 (Minn. 1976) (on appeal from an order denying postconviction relief, the court declined to address issues not litigated by the district court). The claim of ineffective assistance of appellate counsel was raised in the first petition for postconviction relief; the petition was denied and the denial was not appealed. The claim was not raised in the second petition and therefore cannot be raised on appeal from that petition. Id.

Appellant was precluded from raising all the issues in his second petition for post-conviction relief; summary denial of that petition was appropriate. We do not address the issues not raised in that petition, but raised in appellant's brief, because our review is restricted to issues presented to the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Affirmed.