This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Imari A. Obadele, petitioner,
State of Minnesota,
Filed September 21, 1999
File No. K9-94-2559
Imari A. Obadele, 3, #180142, MCF – Faribault, 1101 Linden Lane, Faribault, MN 55021-6400 (pro se appellant)
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)
Considered and decided by Anderson, Presiding Judge, Klaphake, Judge and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Imari Obadele appeals the district court’s denial, without a hearing, of his second petition for postconviction relief. We affirm.
Appellant was convicted of attempted murder in the first degree, attempted murder in the second degree, kidnapping, and assault in the first degree. Appellant was sentenced to 200 months for first-degree attempted murder and an 86-month consecutive sentence on the kidnapping conviction. Appellant challenged the convictions and sentences. This court affirmed the convictions in an unpublished opinion, State v. Roberts, No. CX-95-818 (Minn. App. Mar. 12, 1996), but remanded for resentencing after determining the district court erred in imposing the consecutive sentence. Appellant did not petition the supreme court for review.
Appellant filed a pro se petition for postconviction relief and, for the first time, claimed issues of perjury by a state’s witness and ineffective assistance of counsel. The district court denied the petition and this court affirmed the district court, holding appellant waived these issues because they were not addressed in his direct appeal. Roberts v. State, No. C8-97-871 (Minn. App. Nov. 25, 1997).
Appellant filed a second petition for postconviction relief, again alleging perjured testimony. Appellant argues newly discovered evidence because one of the state’s witnesses signed an affidavit stating he lied during his testimony at appellant’s trial. Appellant claims the affidavit is new evidence he did not have at the time of the direct appeal or first petition for postconviction relief. The district court denied the second petition without a hearing by an order dated March 4, 1999. Appellant challenges the district court’s denial without a hearing of his second petition for postconviction relief.
D E C I S I O N
In a petition for postconviction relief, there "shall" be a hearing "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (1994). In addition,
[t]he 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 * * * in the same case.
Id., subd. 3 (1994). As a result, an evidentiary hearing is not required unless the petition sets forth facts that, "if proved by a fair preponderance of the evidence," would afford the petitioner the relief requested. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).
On review of such a decision, the appellate court "is limited to the question of whether there is sufficient evidence to sustain the post-conviction court’s findings." Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991) (citing Barness v. State, 290 Minn. 509, 510, 187 N.W.2d 111, 112 (1971)). Therefore, the decision of the postconviction court will be disturbed only if there has been an abuse of discretion. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990).
In King v. State, 562 N.W.2d 791 (Minn. 1997), the supreme court reiterated that, in a petition for postconviction relief, all issues raised on direct appeal, including those issues known but not raised in the direct appeal, shall not be considered. Id. at 795.
Despite the general rule, a court may, in its discretion, review postconviction claims, as the interests of justice require. Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997). However, as a rule of fairness, this limited exception applies only so long as "the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal." Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quoting Fox, 474 N.W.2d at 825), aff’d 547 N.W.2d 354 (Minn. 1996).
Under the general rule, it appears that appellant’s claim regarding perjury by a state’s witness is procedurally barred. Here, appellant did not raise the issue on his direct appeal. This court previously held appellant waived the issue when he attempted to raise it for the first time in his initial petition for postconviction relief. Appellant now attempts to argue the issue involved newly discovered evidence because of the affidavit signed by the witness. However, appellant knew of the issue at the time of his direct appeal and first petition for post conviction relief. Pursuant to King, appellant is barred from arguing the perjury issue. 562 N.W.2d at 795.
In addition, the procedural history of this case, raising issues similar to those previously decided by the court of appeals in a second petition for postconviction relief, provides the postconviction court sufficient grounds for a summary denial on this claim. See Minn. Stat. § 590.04, subd. 3 (noting factors on which summary denial may be based).
Furthermore, there are no facts that, in fairness, would require the court to exercise its discretion to allow appellant’s claims. Appellant must show: (1) the testimony was false, (2) appellant was surprised by the testimony and was unable to counteract it or did not know it was false until after the trial, and (3) the jury might have reached a different conclusion without the false testimony. Flournoy v. State, 583 N.W.2d 564, 569 (Minn. 1998).
Appellant cannot show he was surprised by the testimony or did not know it was false. Appellant admits in his brief that he knew of the perjury at the time of the trial and informed his attorney. While the affidavit is new, the issue of perjury is not, and the issue was waived when not brought forward during appellant’s direct appeal. Further, the issue of perjury is not "so novel that its legal basis was not reasonably available at the time of direct appeal." Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997) (citation omitted).
Finally, the witness testimony in question is that of appellant’s accomplice. The victim testified that appellant was the individual who committed the crimes and appellant has not demonstrated how his accomplice’s new testimony might cause a different result in a new trial.
Therefore, appellant has not met the elements necessary to receive a new trial based on this alleged recanted testimony.