This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1735

 

 

Marlowe Nathaniel Brooks, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed May 31, 2005

Affirmed

Lansing, Judge

 

Hennepin County District Court

File No. 00087189

 

 

Marlowe Nathaniel Brooks, #207063, 970 Picket Street North, Bayport, MN 55003 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

Amy Klobuchar, Hennepin County Attorney, Michael K. Walz, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487  (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court denied Marlow Brooks’s postconviction petition without an evidentiary hearing.  Because the petition, files, and record conclusively show that Brooks is not entitled to relief on his claim of ineffective assistance of counsel, we affirm the district court’s denial of Brooks’s request for postconviction relief.

F A C T S

            Marlowe Brooks pleaded guilty to second-degree murder and first-degree attempted murder for fatally shooting one man and shooting at another as the two men left a store in south Minneapolis.  In a direct appeal from conviction, Brooks, in his primary brief, contended that the district court abused its discretion by denying his motion to withdraw the guilty plea.  State v. Brooks, No. C1-01-1253, 2002 WL 1277970 at *2-*3 (Minn. App. June 11, 2002), review denied (Minn. Aug. 20, 2002).  We concluded that Brooks’s plea was accurate, voluntary, and intelligent and that the district court did not abuse its discretion by denying Brooks’s motion to withdraw his plea.  Id. We also rejected Brooks’s claim, raised in a pro se supplemental brief, that he received ineffective assistance of counsel.  Id. at *3-*4.

            Two years after his direct appeal, Brooks petitioned for postconviction relief, alleging ineffective assistance of trial and appellate counsel.  Brooks v. State, No. A03-515, 2004 WL 193112, at *1 (Minn. App. Feb. 3, 2004), review denied (Minn. April 20, 2004).  The district court summarily denied the petition.  Id. On appeal from the denial of postconviction relief, this court again affirmed the district court, holding that the allegations of ineffective assistance of trial counsel were procedurally barred because they had been previously raised and the allegations of ineffective appellate counsel lacked merit.  Id. at *3.

            In this third appeal and second postconviction-relief proceedings, Brooks again alleges that he received ineffective assistance of trial counsel because his attorney failed to object to the district court’s restitution order that required Brooks to reimburse, through the Minnesota Crime Victim Reparations Board, the funeral expenses for the shooting victim.  The district court denied the petition as procedurally barred and substantively without merit.  Brooks appeals from this second denial of postconviction relief.

D E C I S I O N

            The district court must grant a hearing for a postconviction appeal “[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 (2002).  An evidentiary hearing is necessary when there is a material issue of fact in dispute.  State ex rel Roy v. Tahash, 277 Minn. 238, 244-45, 152 N.W.2d 301, 305-06 (1967).  To place material facts in dispute, the petitioner must allege facts that, if proven, would entitle the petitioner to the requested relief.  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990).

            Brooks alleges that the district court abused its discretion by denying an evidentiary hearing to allow him to explain how his trial counsel’s representation was ineffective.  The district court found that there was no need for an evidentiary hearing because the facts were not in dispute and concluded that consideration of the issues presented by Brooks was procedurally barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  The district court also noted that Brooks’s claim of ineffective assistance of counsel lacked merit because a failure to challenge a plea when restitution was not addressed in the plea bargain does not amount to ineffective assistance of counsel.  See State v. Anderson, 507 N.W.2d 245, 247 (Minn. App. 1993) (concluding that restitution may be ordered in addition to sentence and that defendant’s personal failure to object operates as waiver), review denied (Minn. Dec. 22, 1993). 

            The postconviction court’s findings and conclusions are supported by the record.  At Brooks’s hearing on his motion to withdraw his guilty plea, the subject of his direct appeal, the district court considered Brooks’s claim of ineffective assistance of counsel for inadequate investigation and improper development of discovery and concluded that his attorneys’ assistance was not ineffective.  State v. Brooks, No. C1-01-1253, 2002 WL 1277970 at *2-*3 (Minn. App. June 11, 2002), review denied (Minn. Aug. 20, 2002).  We affirmed that decision on appeal.  Id. at *5.  In Brooks’s previous petition for postconviction relief, he alleged ineffective assistance of counsel because of an alleged conflict of interest.  Brooks v. State, No. A03-515, 2004 WL 193112, at *2-*3 (Minn. App. Feb. 3, 2004), review denied (Minn. April 20, 2004).  The district court denied that petition, and we affirmed on appeal.  Id. at *3.  In the current petition, Brooks claims that his trial attorney provided ineffective assistance by failing to challenge the validity of his plea for failure to include a restitution provision.  This represents Brooks’s third claim of ineffective assistance with no claim that the facts to support it were unknown when the earlier claims were made.

            Issues that have already been raised and decided in a postconviction-relief petition cannot be raised again.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  Furthermore, when a direct appeal has been taken in a criminal case, issues raised in that appeal or claims known, but not raised, will not be considered in a petition for postconviction relief.  Id.; see also Minn. Stat. § 590.04, subd. 3 (2002) (authorizing denial of petition for postconviction relief when raised issued were previously addressed).  The Knaffla bar applies to claims for ineffective assistance of trial counsel.  Hale v. State, 566 N.W.2d 923, 926 (Minn. 1997).

            Because Brooks either raised or had an opportunity to raise the claims included in this petition, the district court did not abuse its discretion by denying, without a hearing, Brooks’s request for postconviction relief.  The postconviction court further observed that the holding in Anderson, that the failure to agree to restitution does not invalidate a plea, essentially defeats Brooks’s claim on the merits.  The district court’s observation is supported by the holding in Anderson.  The procedural bar makes it unnecessary, however, to consider Brooks’s claim on its merits.  The district court did not err in denying Brooks’s petition for postconviction relief.

            Affirmed.