This opinion will be unpublished and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

C7-98-693

Kenneth E. Murray, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 27, 1998

Affirmed

Thoreen, Judge*

Otter Tail County District Court

File Nos. K991931, K091932, K291933, K491934, K691935,

K891936, KX91937, K191941, and K391942.

Kenneth E. Murray, MCF-Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767 (pro se appellant)

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

David J. Hauser, Otter Tail County Attorney, Otter Tail County Courthouse, Fergus Falls, MN 56537 (for respondent)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, and Thoreen, Judge.

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

THOREEN, Judge

In a pro se appeal, appellant Kenneth E. Murray challenges the district court's denial of his petition for postconviction relief, arguing that the district court erred in (1) concluding that his claim of ineffective assistance of trial counsel was procedurally barred; (2) finding that he received effective assistance of appellate counsel; (3) denying a hearing on his claim of ineffective assistance of trial and appellate counsel; and (4) denying his motion for default judgment. We affirm.

F A C T S

In 1991, Murray, a teacher, was convicted of 11 counts of criminal sexual conduct involving three minors: E.R.E, J.H.S., and J.F.J. The trial court sentenced Murray to an aggregate sentence of 282.5 months.

On Murray's first appeal, this court reversed two counts of first-degree criminal sexual conduct due to insufficient evidence, vacated four sentences because the pattern sex offender statute was applied to offenses committed before its effective date, and remanded the case back to the trial court for sentencing. State v. Murray, No. C7-92-468, 1992 WL 333617, at *1 (Minn. App. Nov. 17, 1992). The supreme court modified this court's order, concluding that there was a factual dispute concerning the dates of the acts of abuse. State v. Murray, 495 N.W.2d 412, 412-13 (Minn. 1993).

On remand, the trial court imposed three consecutive sentences, one for each victim, for an aggregate sentence of 162 months. Murray, with the assistance of appellate counsel, made a second direct appeal, arguing that the consecutive sentences imposed by the trial court unduly exaggerated the criminality of his conduct, and that the upward departure for acts committed against E.R.E. was improper. Murray also filed a supplemental pro se brief, asserting that (1) the manner in which he was charged and convicted violated the double jeopardy clause; (2) Minnesota law violated his constitutional right to equal protection by inflicting greater punishment on him than would have been received by a similarly situated defendant who lived with the victims; (3) the state failed to prove that he used a position of authority to cause E.R.E. to submit to sexual acts; (4) conduct amounting to nothing more than hugging J.F.J. was improperly used as the basis for his conviction for second-degree criminal sexual conduct; (5) he was the victim of selective prosecution and prosecutorial bias; (6) he received ineffective assistance of counsel; and (7) his sentence violated the Eighth Amendment prohibition against cruel and unusual punishment.

This court concluded that consecutive sentences were permissible and did not unfairly exaggerate the criminality of Murray's conduct because Murray was convicted of multiple felonies against different victims. State v. Murray, No. C1-93-1626, 1994 WL 62155, at *2 (Minn. App. Mar. 1, 1994), review denied (Minn. Apr. 19, 1994). This court also concluded that there were substantial and compelling circumstances to justify the trial court's upward durational departure from the sentencing guidelines. Id. Furthermore, this court reviewed the sentencing issues raised by Murray in his pro se brief and concluded that they "do not warrant reversal or modification of his sentence." Id. This court refused to consider the merits of all other issues raised by Murray in his pro se brief, holding that these issues were either "raised and decided on the first appeal or were not litigated at the trial court level and will not be decided on appeal." Id.

Next, Murray sought a writ of habeas corpus in the United States District Court, challenging his state conviction for criminal sexual conduct. His petition raised the same issues that were raised in his supplemental pro se brief to this court on his second direct appeal. The United States District Court denied Murray's habeas corpus petition, dismissing one claim on the merits and the other five on procedural grounds. See Murray v. Wood, 107 F.3d 629, 631 (8th Cir. 1997) (explaining procedural history).

Murray appealed the denial of his habeas corpus petition to the Eighth Circuit Court of Appeals. Because the state had not waived the exhaustion requirement of the federal habeas statute, and because Murray failed to pursue nonfutile postconviction relief proceedings in state court with respect to two of his claims (his claim of ineffective assistance of counsel and his claim that his Eighth Amendment rights were violated), the United States Court of Appeals vacated the judgment of the United States District Court and remanded the case with directions for the United States District Court to give "Murray a reasonable opportunity to dismiss the unexhausted claims; absent Murray's willingness to do so, the District Court should dismiss the entire petition without prejudice." Id. at 631-32. The United States Court of Appeals also held that it was unable to consider Murray's remaining arguments because of procedural default, which resulted from Murray's failure to raise these issues on his first direct appeal. Id. at 632 n.2.

Murray filed a petition for postconviction relief, arguing that (1) his conviction should be reversed because he was denied the effective assistance of trial and appellate counsel; and (2) his sentence of 162 months should be vacated because it amounts to cruel and unusual punishment. The postconviction court denied Murray's petition without a hearing, concluding that (1) his claim of ineffective assistance of trial counsel was procedurally barred; (2) his claim of ineffective assistance of appellate counsel was meritless; and (3) his claim of cruel and unusual punishment was, in essence, a claim previously considered and addressed by the Minnesota Court of Appeals in his second direct appeal.

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 that warrant relief. Minn. Stat. § 590.04, subd. 3 (1996). 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). Absent an abuse of discretion, a postconviction decision will not be disturbed on appeal. Id.

I.

Murray argues that the postconviction court erred as a matter of law in summarily denying his petition for postconviction relief as procedurally barred, without considering its merits.

Under Minnesota caselaw, all matters raised on direct appeal from a conviction, and all claims known but not raised, are precluded from being considered on a subsequent petition for postconviction relief, except when the "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. Case v. State, 364 N.W.2d 797, 799-800 (Minn. 1985).

In his petition for postconviction relief, Murray asserts that his representation at trial was deficient because counsel failed to (1) thoroughly and adequately cross-examine E.R.E.; (2) challenge the complaints which charged lawful behavior as a crime; and (3) gather exculpatory evidence with respect to charges made against him. However, Murray, with the representation of appellate counsel, made a direct appeal to this court in March 1992 and failed to raise this issue.

In Black v. State, 560 N.W.2d 83, 85 (Minn. 1997), the supreme court concluded that postconviction claims for ineffective assistance of trial counsel are also generally precluded if known at the time of direct appeal. However, an exception to this general rule exists when a reviewing court needs additional facts to explain an attorney's decisions. Id. at 85 n.1.

Because Murray failed to raise the issue of ineffective assistance of trial counsel on direct appeal, Murray had the burden of presenting evidence to the postconviction court that his claim was so novel that its legal basis was not reasonably available to him at the time of his first direct appeal or that the claim was such that the reviewing court would have required additional facts. Since Murray did not present such evidence, the postconviction court did not err in concluding that Murray's claims for ineffective assistance of counsel were procedurally barred because these claims were known or should have been known to him at the time of his first appeal.

In his petition for postconviction relief, Murray also claimed that his sentence of 162 months amounted to cruel and unusual punishment under the Eighth Amendment to the United State Constitution. However, this claim was previously raised and decided by this court in Murray's second direct appeal. Therefore, the postconviction court did not err in concluding that Murray's Eighth Amendment argument was precluded from consideration in a postconviction proceeding because this court had previously ruled on the merits of this issue. See Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (once petitioner has directly appealed a conviction, any matter raised in the direct appeal will not be considered by a postconviction court in a subsequent petition for postconviction relief).

II.

Murray argues that the postconviction court erred in finding that he received effective assistance of appellate counsel.

Here, the record reveals that the postconviction court could not decide whether Murray's claim of ineffective assistance of appellate counsel applied to both appeals or merely the first direct appeal. Therefore, it treated its analysis as if Murray was claiming ineffective assistance of counsel concerning both appeals. However, the record reveals, and Murray admits, that his claims of ineffective assistance of appellate counsel stem from his attorney's representation during his first direct appeal.

The issue of ineffective assistance of appellate counsel was known to Murray at the time of his second direct appeal and was not raised. Because Murray does not allege any claim so novel that its "legal basis was not reasonably available" at the time of his second direct appeal, we conclude that this claim is precluded from consideration on a subsequent petition for postconviction relief. See Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (a claim known but not raised on direct appeal will not be considered in postconviction proceedings, unless the claim is so novel that its legal basis was not available at the time of direct appeal). The postconviction court's denial of postconviction relief, although based on other grounds, did not constitute reversible error.

III.

Murray also contends that the postconviction court abused its discretion in denying him an evidentiary hearing on the claims of ineffective assistance of trial and appellate counsel because he alleged facts which, if proven, would have entitled him to relief.

A postconviction court must afford a petitioner an evidentiary hearing when the petitioner alleges facts that, if proven, would entitle the petitioner to the requested relief. Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). However, a hearing is not required when postconviction relief is sought where the petition, files, and records of the proceedings conclusively show that petitioner is entitled to no relief. Russell, 562 N.W.2d at 674. Here, a hearing was not required because the claims of ineffective assistance of trial and appellate counsel were waived by Murray when they were not raised in his subsequent direct appeals.

IV.

Finally, Murray contends that the postconviction court erred in denying his motion for default judgment where the state failed to make a timely answer to his petition and where the government interfered with the filing of the pleadings.

Minn. Stat. § 590.03 (1996) provides that the county attorney shall respond to a postconviction petition "[w]ithin 20 days after the filing of the petition." However, there is no provision in section 590 requiring a default judgment in favor of the petitioner if the state fails to file a timely answer to a petition for postconviction relief. Murray acknowledges that there are no cases in which a petitioner has been granted a default judgment due to the state's failure to make a timely answer to a postconviction motion. Moreover, in Wertheimer v. State, 294 Minn. 293, 299-300, 201 N.W.2d 383, 387 (1972), the supreme court held that a nonprejudicial delay by the county attorney in answering a petition for postconviction relief does not require the granting of a default judgment.

Since Murray has failed to demonstrate that he was prejudiced by the state's failure to make a timely answer or by the late filing of his postconviction petition, we cannot say that the postconviction court erred by denying his motion for a default judgment.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.