This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Timothy Allan Kurzejeski, petitioner,



State of Minnesota,


Filed July 20, 1999


Harten, Judge

Ramsey County District Court

File No. K2-96-2715

Timothy A. Kurzejeski, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

Mike Hatch, Attorney General, 14th Floor NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Susan Gaertner, Ramsey County Attorney, Mark N. Lystig, Assistant County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Willis, Presiding Judge, Harten, Judge, and Thoreen, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellant petitioned for postconviction relief, claiming ineffective assistance of counsel. Because at the time of his direct appeal appellant knew or should have known of his claim of ineffective assistance of counsel, we conclude that the postconviction court properly denied relief and affirm.


A jury found appellant Timothy Allan Kurzejeski guilty of attempted second-degree murder, first-degree assault, and third-degree assault. He was sentenced to 229 months, an upward departure from the presumptive 153-month sentence. He filed a direct appeal, claiming that the jury instructions were incorrect. We affirmed. See State v. Kurzejeski, No. C7-97-800, 1998 WL 148077, review denied (Minn. May 20, 1998).

Appellant then petitioned for postconviction relief, alleging ineffective assistance of counsel. The postconviction court denied an evidentiary hearing because there were no material facts in dispute. The postconviction court then dismissed appellant's petition, finding that it was procedurally barred.


"This court reviews a postconviction proceeding only to determine whether there is sufficient evidence to sustain the postconviction court's findings, and a postconviction court's decision will not be disturbed absent an abuse of discretion." Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992). Furthermore, a "postconviction proceeding is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside." State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).

Respondent argues that, under the rule established in State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), the issues raised in this postconviction appeal are not properly before the court because they should have been dealt with on direct appeal. We agree.

Under the Knaffla rule, once a petitioner directly appeals a conviction, all matters raised in that appeal or known at the time of appeal will not be considered by a postconviction court in a subsequent petition for relief. The Knaffla rule applies if the defendant knew or should have known about the issue at the time of appeal.

Sutherlin v. State, 574 N.W.2d 428, 432 (Minn. 1998) (citation omitted).

Appellant's direct appeal alleged incorrect jury instructions and failure to instruct the jury on the lesser-included offense of first-degree manslaughter; appellant did not claim ineffective assistance of counsel. In reviewing the ineffective counsel claim, the postconviction court found that

[e]very legitimate issue raised by the Defendant was resolved by the [direct] appeal. The Defendant is barred from raising the same issues or those issues which should have been known by him or raised by him * * *.

Appellant asserts that the postconviction court erred in denying him an evidentiary hearing. The denial of a postconviction evidentiary hearing is proper where the petitioner alleges no disputed material facts beyond mere assertions. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997) (evidentiary hearing not required unless material facts are in dispute). Here, appellant asserts ineffective assistance of counsel, claiming that his attorney failed to conduct an investigation, failed to interview numerous individuals, admitted appellant's guilt during trial, failed to negotiate a plea offer, and failed to object to a jury instruction. But the record supports no finding of ineffective assistance of counsel on these claims; they amount to mere assertions by appellant. "[A]llegations raised in the petition must be more than argumentative assertions without factual support." Sutherlin, 574 N.W.2d at 436, (quoting Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). We agree with the postconviction court that appellant was not entitled to an evidentiary hearing on his petition.

Respondent argues that appellant's claims are barred because they were known at the time of the direct appeal. See Sutherlin, 574 N.W.2d at 435 (appellant's ineffective assistance of counsel claim procedurally barred because the issue was known at time of direct appeal). Appellant's claim is subject to the Knaffla rule, unless appellant's claims are within the exception which provides that

a claim that was known but not raised may be considered if the claim is so novel that there was no legal basis for the claim at the time of appeal. Even if the legal basis of the claim was reasonably available, this court may allow substantive review in limited situations when fairness so requires and when the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.

Sutherlin, 574 N.W.2d at 432 (citation and quotations omitted).

We agree with the postconviction court's finding that appellant's claim of ineffective assistance of counsel was known to appellant at the time of his direct appeal. The supreme court has held that

postconviction claims of ineffective assistance of trial counsel are generally precluded if known at the time of direct appeal. An exception exists when the claim is such that the reviewing court needs additional facts to explain the attorney's decisions. * * * [T]he best procedure is to raise the ineffective assistance of counsel claim in a petition for postconviction relief before the direct appeal. Here, [appellant] does not point to any decision or action of his trial counsel which would require further explanation in a postconviction hearing. Accordingly, the postconviction court properly held that [appellant's] ineffective assistance of trial counsel claim was precluded for failure to raise it on direct appeal.

Russell v. State, 562 N.W.2d 670, 673-74 (Minn. 1997) (citations and quotations omitted). Russell applies to the instant case.

We conclude that appellant's post conviction petition is precluded by the Knaffla rule. We also conclude that appellant's claim of ineffective assistance is not so novel that there was no basis for it at the time of his direct appeal. Moreover, fairness does not require that appellant's claim be addressed. See Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) ("[appellant] has not alleged that any of these claims were so novel that their legal basis was not reasonably available to his counsel at the time of direct appeal [and] * * * has presented no facts to indicate that fairness requires [consideration of the claims]."). Appellant here presents no arguments to show that he did not deliberately and inexcusably fail to raise this claim on direct appeal.

We conclude that appellant's postconviction issues in this appeal are procedurally barred.


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