This opinion will be unpublished and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
C5-98-160

Kagalee Brown, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 22, 1998
Affirmed
Crippen, Judge

Hennepin County District Court
File No. 93049016

Kagalee Brown, Box B, St. Cloud, MN 56302 (pro se appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Gayle C. Hendley, Assistant County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

Appellant Kagalee Brown challenges the postconviction court's denial of his petition for relief, alleging newly discovered evidence, trial court error in admitting an incriminating statement that he claimed to be a product of police coercion, and ineffective assistance of counsel. We affirm, finding no error in the trial court's judgment that appellant's claims were known or available at the time of his earlier appeal, or that the claims were so ill defined that they did not warrant relief.

FACTS

In July 1994, appellant was convicted of second-decree murder. He appealed the conviction, asserting that the trial court had erred in admitting testimony relating to gang activity. We found that the evidence connecting appellant to the shooting was substantial and concluded that the trial court had not abused its discretion in admitting gang-related testimony for the limited purpose of showing appellant's co-defendant's state of mind. State v. Brown, No. C0-94-2454 (Minn. App. Sept. 26, 1995).

Appellant petitioned for postconviction relief, with assertions stated earlier in this opinion and the claim of numerous other constitutional violations. Appellant failed to specify the nature of newly discovered evidence or the deficiency in his representation.

D E C I S I O N

The postconviction court is required to set a hearing on the petition "[u]nless 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). But an evidentiary hearing is required only where the petitioner alleges facts that would entitle him to relief if proven by a preponderance of the evidence. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). And the postconviction court cannot consider issues that were known but not raised in a prior, direct appeal. Miller v. State, 531 N.W. 2d 491, 493 (Minn. 1995). We will not disturb the postconviction court's decision absent an abuse of discretion. Id. at 492.

1. Newly Discovered Evidence. In order to obtain a new trial on the ground of newly discovered evidence, the defendant must establish that (1) neither he nor his counsel were aware of the newly discovered evidence at the time of trial; (2) his failure to discover that evidence before trial was not due to a lack of diligence; (3) the evidence is not impeaching, cumulative or doubtful; and (4) the evidence is likely to eventuate in either an acquittal at a retrial or a result more favorable to the defendant. Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995).

Appellant, in his postconviction petition, asserted only that he had "newly discovered evidence." This bare assertion failed to satisfy any one of the four requirements. On appeal, appellant described purported newly discovered evidence, comprised of his co-defendant's recantation of incriminating statements. Respondent moved to strike the statement because it was not part of the record before the postconviction court; because we are precluded from reviewing the exculpatory statement under these circumstances, we grant respondent's motion to strike. Minn. R. Civ. App. P. 110.01; Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (striking documents included in party's brief that were not part of record), aff'd, 504 N.W.2d 758 (Minn. 1993). On the record before us, the postconviction court did not abuse its discretion in denying appellant relief based on newly discovered evidence.

2. Ineffective Assistance of Counsel. The postconviction court found that appellant's claim of ineffective assistance of counsel failed not only because he did not raise it on direct appeal but also due to its vagueness. Ineffective assistance claims first raised in postconviction proceedings may be reviewed on appeal where fairness so requires and the petitioner did not "deliberately and inexcusably" fail to raise the issue on direct appeal. Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (citations omitted). Here, appellant not only did not raise this issue on direct appeal, but he also offered no explanation for his failure. Moreover, he failed to provide a basis for the claim or any evidence that he was prejudiced by counsel's representation. Under the circumstances, we conclude that it was not error to reject appellant's postconviction claim of ineffective assistance.

3. Admission of Incriminating Statement. In appellant's direct appeal briefing, he described the details of his interrogation, stating that what happened during seven hours of interrogation was "hotly contested." We agree with the postconviction court that appellant's claim that his incriminating statement was taken in contravention of his constitutional rights was known at the time the time of his direct appeal and cannot be reviewed in a postconviction proceeding.

Affirmed.