This opinion will be unpublished and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

A04-2280

 

 

Arden J. Archer,

petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed August 9, 2005

Affirmed
Forsberg, Judge*

 

Becker County District Court

File No. K7-97-1532

 

Arden J. Archer, # 100187, MCF-OPH, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, P.O. Box 476, Detroit Lakes, MN 56502-0476 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            Appellant Arden John Archer was convicted on multiple counts in 1997 and, as a career criminal offender, he received a statutory maximum sentence of 20 years for each conviction.  On what is Archer’s second postconviction petition for relief he argues that (1) his sentence should be vacated under Blakely v. Washington, 124 S. Ct. 2531 (2004); (2) his sentence is based on an incorrect criminal history score; (3) this court’s decision that burglary is not “a crime against a person” for sentencing purposes makes his conviction impermissible; (4) he was entitled to an evidentiary hearing before the district court on these issues; and (5) the postconviction judge should have been disqualified from hearing his petition.  We affirm.

FACTS

            In 1997, the state charged Archer with two counts of first-degree aggravated robbery under Minn. Stat. § 609.245, subd. 1 (1996) and three counts of first-degree burglary under Minn. Stat. §609.582, subd. 1 (1996).  The jury convicted him of all counts.  Based on Archer’s criminal history score of 17 and the district court’s determination that his current crimes were committed as a pattern of criminal conduct, the district court sentenced Archer as a career offender and imposed the statutory maximum of 20 years for each conviction with the sentences to run consecutively.  On direct appeal in 1999, this court affirmed his conviction, but modified his sentences to a total commitment of 40 years, concluding that his burglary of a business was not a “crime against a person” and, therefore, he could not be sentenced for this burglary conviction consecutively to his sentences for his other convictions.  State v. Archer, 1999 WL 1256432 (Minn. App. Dec. 28, 1999).

            In 2001, Archer petitioned for postconviction relief, arguing that his sentence violated the mandates of Apprendi v. U.S., 530 U.S. 466, 120 S. Ct. 2348 (2000).  The district court denied his petition, finding that Apprendi was inapplicable.  This court affirmed, concluding that Archer’s sentence did not violate Apprendi, and that the district court did not abuse its discretion in denying him an evidentiary hearing.

            In 2004, Archer again petitioned the district court for postconviction relief seeking correction of his sentence and requesting that the postconviction judge be disqualified based on bias.  The district court found Archer’s claims were “procedurally barred from consideration and/or without merit.”  The district court denied Archer’s request for postconviction relief and his request for an evidentiary hearing, but does not appear to have ruled on the request for disqualification. 

D E C I S I O N

            When seeking postconviction relief, appellant has the burden of establishing, by a fair preponderance of the evidence, facts that will warrant a reopening of the case.  State v. Ranier, 502 N.W.2d 784, 787 (Minn. 1993).  A postconviction proceeding is a collateral attack on a judgment “which carries a presumption of regularity” and, as result, that judgment will not be lightly set aside.  State ex rel Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968).  A postconviction court’s decision will not be disturbed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            Archer seeks relief from his sentence based on the United States Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  In State v. Petschl, this court held that “the Blakely rule . . . is not a watershed rule subject to retroactive application on collateral review.”  692 N.W.2d 463, 472 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005).  Because Archer’s conviction was final before the Supreme Court released its decision in Apprendi, the district court properly concluded, under Petschl,, that Archer is not entitled to relief from his sentence based on Blakely.

            Archer alleges that his sentence is based on an incorrect criminal history score.  “[W]here direct appeal has once been taken, all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief.”  State v. Knaffla, 309 Minn. 246, 251-52, 243 N.W.2d 737, 741 (1976).  The alleged error that Archer now raises was available at the time of his direct appeal, but at that time he “d[id] not dispute that his criminal history score sentenced him as a career offender.”  Archer, 1999 WL 1256432 at *4.  The district court properly determined Archer was not entitled to raise this issue.

            Archer contends that one of his burglary convictions must be vacated because, for purposes of determining whether the sentence for the offense could be imposed consecutively to Archer’s other sentences, this court determined that the burglary was not a “crime against a person.”  Archer’s assertion is based on a misreading of this court’s prior opinion, and is devoid of merit.  Because Archer did not assert any ground on which he is entitled to relief from his sentence or conviction, the district court properly denied his request for relief.

            Archer also argues that he was entitled to an evidentiary hearing.  An evidentiary hearing is not required unless “facts are alleged which, if proved, would entitle a petitioner to the requested relief,” or when the petition, files, and records “conclusively show that the petitioner is entitled to no relief.”  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990); see also Minn. Stat. § 590.04, subd. 1 (2004).  Because, as discussed above, Archer’s petition did not allege any basis that would entitle him to his requested relief, the district court was not required to provide him with an evidentiary hearing.  And because Archer is not entitled to the relief he requested, his argument that the postconviction judge should have been disqualified is moot.

Finally, Archer argues that the postconviction judge should have been disqualified when Archer questioned his impartiality under Minn. R. Civ. P. 63.02 as part of his motion to “correct his sentence.”  Motions to remove a judge in a criminal matter are to be made under Minn. R. Crim. P. 26.03.  But even if we construe Archer’s allegations as an acceptable motion to disqualify the postconviction judge for bias, we see nothing in the record demonstrating that the judge’s impartiality could reasonably be questioned in this case, nor could any judge have granted the relief that Archer was requesting.  See State v. Laughlin, 508 N.W.2d 545, 548 (Minn. App. 1993) (concluding “removal is warranted only where the judge’s impartiality might ‘reasonably’ be questioned; therefore, a judge should not accede to the notice or be removed simply because a litigant subjectively believes that the judge is biased”); see also State v. Horning, 535 N.W.2d 296, 298 (Minn.1995) (stating appellant has burden of proving error is prejudicial).

            Affirmed.