This opinion will be unpublished and

may not cited except as provided by

Minn. Stat. §480A.08, subd. 3 (1996).




Loner Blue,

f/k/a/ Scott G. Kendall,

petitioner, Appellant,


State of Minnesota,


Filed December 23, 1997


Amundson, Judge

Becker County District Court

File No. K5-92-1011

Loner Blue, f/k/a Scott Glenn Kendall, P.O. Box 55, Stillwater, MN 55082 (pro se appellant)

Hubert H. Humphrey III, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 and Joseph E. Evans, Becker County Attorney, P.O. Box 743, Detroit Lakes, MN 56502 (for respondent)

Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Kalitowski, Judge.



Appellant Loner Blue seeks postconviction relief, alleging that: (1) the district court improperly denied postconviction relief without an evidentiary hearing; (2) there was improper corroborating the credibility of the victim by the district court judge, prosecutor, and sheriff's department investigator; (3) Blue was denied his constitutional right to present a defense; and (4) Blue received ineffective assistance of trial and appellate counsel. We affirm.


This appeal is from an order denying a second postconviction petition challenging appellant Loner Blue's (f/k/a Scott Glenn Kendall) 1992 convictions for first- and second-degree criminal sexual conduct. Minn. Stat. § 609.342, subd. 1(a) (1990) and Minn. Stat. § 609.343, subd. 1(a) (1990) (sexual penetration and sexual contact with complainant under age 13 by perpetrator more than 36 months older). Blue's convictions are based on the acts of abuse against his daughter B.J.G. between July 1, 1991, and August 31, 1991, when she was eleven years old. A jury found Blue guilty as charged; he was sentenced to 292 months in prison. The sentence was a double durational departure from the presumptive sentence of 146 months. The district court cited several severe aggravating circumstances, including Blue's position of authority and trust over B.J.G., B.J.G.'s vulnerability, the multiple incidents of sexual assault, and Blue's pattern of emotional intimidation of B.J.G., to justify the upward sentencing departure.

Blue, represented by counsel, appealed his conviction. This court affirmed the district court's decision. State v. Kendall, No C8-93-439 (Minn. App. Oct. 19, 1993), review denied (Minn. Dec. 14, 1993). This court found that the evidence was sufficient to support the jury's verdict and that the district court did not abuse its discretion in refusing Blue's mid-trial request to represent himself. The court declined to rule on the ineffective assistance of counsel allegations raised in Blue's pro se supplemental brief but held that Blue was not precluded from bringing a postconviction petition with respect to that claim.

In March of 1994, Blue, pro se, filed a petition for postconviction relief requesting a new trial based on claims of ineffective assistance of counsel, insufficiency of the evidence, and failure of the prosecutor and district court to protect Blue's equal protection rights. The postconviction court denied Blue's petition finding that Blue failed to show that his counsel's performance was deficient and that even if his counsel's performance could be deemed deficient, Blue failed to establish a reasonable probability that, but for his counsel's alleged unprofessional errors, the result of the proceeding would have been different. The postconviction court stated that there was sufficient evidence to support Blue's conviction, however, the court did not address his equal protection claims. Blue appealed that order and this court affirmed the postconviction court's decision. State v. Kendall, No C5-94-2174 (Minn. App. July 3, 1995), review denied (Minn. Aug. 30, 1995). This court held that Blue's claims of denial of equal protection and various district court errors were barred because the claims were known but not raised at the time of direct appeal. Blue's ineffective assistance of counsel claim also failed because Blue failed to establish that his trial counsel's performance fell below the standard of reasonable professional competence or that he suffered any prejudice as a result of the alleged errors.

On January 21, 1997, Blue, again pro se, filed a second petition for postconviction relief. The district court concluded that "[t]he petition, the files, and records of these proceedings conclusively show that [Blue] is entitled to no relief." The court first determined that Blue's claims were procedurally barred because the issues of whether Blue was denied his constitutional right to present a defense and alleged impermissible vouching for the victim's credibility were known at the time of direct appeal and the issue of ineffective assistance of appellate counsel was known at the time of the first petition for postconviction relief. The court concluded that all three claims failed on the merits in any event. The court, therefore, ordered that Blue's motion for postconviction relief be denied without an evidentiary hearing. This appeal followed.


This court's review of a postconviction proceeding is limited to determining whether the evidence is sufficient to sustain the findings of the postconviction court. Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Absent an abuse of discretion, a district court's postconviction decision will not be disturbed on appeal. McMaster v. State, 551 N.W.2d 218, 218 (Minn. 1996).

A hearing is not required when postconviction relief is sought where "the petition and the files and records of the proceedings conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1996). "[A]n evidentiary hearing is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief." Russell v. State, 562 N.W.2d 670, 674 (Minn. 1997).

Blue is procedurally barred from postconviction relief. The Minnesota Supreme Court recently affirmed the rule first announced more than twenty years ago that:

[O]nce a petitioner has directly appealed a conviction, any matter raised in the direct appeal, and any claim known to the petitioner at the time but not raised, will not be considered by a postconviction court in a subsequent petition for postconviction relief.

Id. at 672 (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). A claim known but not raised on direct appeal will not be considered postconviction, unless the claim is so novel that its legal basis was not reasonably available at the time of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995). The law also provides that:

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.

Minn. Stat. § 590.04, subd. 3 (1996).

In the present case, the postconviction court found that:

14. The issue of whether [Blue] was denied his constitutional right to present a defense was known at the time of the direct appeal.

15. The issue of impermissible vouching of the victim's credibility was known at the time of the direct appeal.

* * *

18. The issue of effective assistance of appellate counsel was known at the time of the first petition for postconviction relief.

We agree.

Blue argues that the procedural bars should not be applied here because he was "misled by his appellate counsel that he could not raise issues of ineffective assistance of trial counsel; improper vouching, and the victim's inconsistent statements on the video tapes, which were not addressed at the trial." This argument is flawed. First, regarding the ineffective assistance of counsel claim, the affidavit states that the state public defender told Blue that he would have to raise that issue through a postconviction proceeding; Blue has already done that in his first petition for postconviction relief. Second, Blue's affidavit does not even once mention the vouching issue. Even if Blue's appellate attorney did mislead him, which appears highly unlikely, Blue inexcusably failed to raise these issues in his first postconviction proceeding. The fact that Blue acted pro se in that proceeding and on appeal therefrom is of no consequence. See State v. Seifert, 423 N.W.2d 368, 372 (Minn. 1988) (stating "the pro se defendant will be held to the standard of an attorney in presenting his appeal.").

Blue's claim of improper vouching and that he was denied the right to present a defense are procedurally barred under the Knaffla rule which precludes review in postconviction proceedings of a claim known and not raised on direct appeal. See Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. The district court correctly stated, in its order denying Blue's second postconviction petition, that neither issue is so novel that they were not reasonably available at the time of direct appeal.

Blue also claims that he was denied his right to present a defense because of alleged limitations on his cross-examination of the victim. The proposition that a defendant has a constitutional right to engage in cross-examination to show the bias, prejudice, interest, or disposition of a witness has existed for many years in Minnesota. State v. Elijah, 206 Minn. 619, 622, 289 N.W. 575, 578 (1940). Contrary to Blue's claim, the case of State v. Pride, 528 N.W.2d 862 (Minn. 1995), did not change the law on this subject. Instead, the Pride court simply applied well-established law to conclude that in that specific sexual assault case, a prohibition of cross-examination of the complainant regarding her romantic relationship with a security guard, violated the Confrontation Clause and justified a new trial. Id. at 867. Pride does not represent a departure from the existing law, but is a straightforward application of longstanding legal principles to the specific facts of the case.

Blue's reliance on Van Buren v. State, 556 N.W.2d 548, 551-52 (Minn. 1996), and therefore State v. Maurer, 491 N.W.2d 661, 662 (Minn. 1992), denial of habeas corpus reversed, Maurer v. Department of Corrections, 32 F.3d 1286, 1289-91 (8th Cir. 1994), upon which Van Buren relied, is misplaced. In Maurer, the supreme court concluded that admission of testimony that the victim in a rape case was "sincere" when she reported the crime was harmless error. 491 N.W.2d at 662. On an appeal from a denial of a petition for habeas corpus, the Eighth Circuit concluded that the error was not harmless and ordered a new trial. Maurer, 32 F.2d at 1289-91. Maurer involved an acquaintance rape charge brought against a defendant by a woman who initially told some friends about the rape, but did not want the police informed because she did not want her boyfriend or children to find out. Id. at 1287-88. The defendant claimed the sexual encounter with the complainant was consensual. Id. at 1288. The Eighth Circuit found that the defendant's due process rights were violated when the district court allowed four lay witnesses to specifically testify that the complainant seemed sincere when she told them she had been raped. Id. at 1290-91. In Van Buren, the supreme court relied on that decision in ordering a new trial in a sexual assault case where hearsay testimony that members of the victim's family and others believed her when she told her story of the assault. Van Buren, 556 N.W.2d at 551-52. Van Buren, however, is of little relevance here. In the present case, no witnesses testified that he or she believed B.J.G. nor was there any testimony concerning her sincerity when relating her reports that Blue sexually assaulted her.

The postconviction court properly found that Blue was barred from raising the issue of ineffective assistance of appellate counsel because that issue was known to him at the time he brought the first postconviction petition. Any attempt by Blue to again assert a claim of ineffective assistance of trial counsel must fail because he already litigated that issue in the first postconviction proceeding. Minnesota law specifically states that this court's decision affirming the postconviction court's denial of a claim is binding. Minn. Stat. § 590.04, subd. 3. The postconviction court properly determined that the claims asserted in Blue's second postconviction petition were procedurally barred.




Judge Roland C. Amundson