This opinion will be unpublished and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

A04-2026, A04-2075

 

Willie Eddie Reynolds, petitioner,
Appellant (A04-2026),

Timothy J. Otis, petitioner,
Appellant (A04-2075),

vs.

State of Minnesota,
Respondent.

 

Filed September 6, 2005

Affirmed

Wright, Judge

 

Dakota County District Court

File Nos. K6-02-3227, K3-97-2715

 

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant State Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN  55414 (for appellants)

 

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

 

James C. Backstrom, Dakota County Attorney, Nicole E. Nee, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

This is a consolidated appeal from orders denying the postconviction petitions of appellants Willie Reynolds and Timothy Otis.  Each appellant challenges his sentence, which is an upward durational departure under the career-offender statute, Minn. Stat. § 609.1095, subd. 4 (2004).  Appellants argue that they are entitled to postconviction relief because the sentences were imposed in violation of the Sixth Amendment right to a jury trial announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  They also challenge the district court’s denial of their motions to remove for cause the district court judges who denied the petitions.  We affirm.

FACTS

 

            In December 2002, Reynolds pleaded guilty pursuant to a plea agreement to one count of felony domestic assault, in violation of Minn. Stat. § 609.2242, subds. 1(1), 4 (2002), and one count of gross-misdemeanor obstructing legal process, in violation of Minn. Stat. § 609.50, subds. 1(2), 2(2) (2002).  At a combined guilty-plea and sentencing hearing, Reynolds stated that he understood his presumptive guidelines sentence is 33 months’ imprisonment, but his criminal history would cause him to be designated as a career offender.  Reynolds also acknowledged that the district court would sentence him as a career offender to 60 months’ imprisonment, with a stay of execution.  After Reynolds waived his right to a jury trial and presentence investigation, the district court sentenced Reynolds according to the terms of the plea agreement and placed him on probation for 60 months.  A sentence was not imposed for his conviction of obstructing legal process.

In July 2003, Reynolds violated the conditions of probation.  The district court revoked probation and executed the 60-month prison term.  Reynolds did not appeal his sentence at that time.  On August 6, 2004, Reynolds filed a petition for postconviction relief, alleging that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  The district court denied the petition. 

In December 1997, Otis was charged with one count of unauthorized use of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(17), 3(3)(d)(v) (Supp. 1997), and one count of theft of a motor vehicle, in violation of Minn. Stat. § 609.52, subds. 2(1), 3(2) (Supp. 1997).  A jury acquitted Otis of theft of a motor vehicle but convicted him of unauthorized use of a motor vehicle.  The presumptive guidelines sentence for this offense is 26 months’ imprisonment.  But the district court sentenced Otis as a career offender to 60 months’ imprisonment. 

Otis appealed his conviction and sentence without challenging the constitutional basis for the upward departure from the sentencing guidelines under the career-offender statute.  We affirmed Otis’s sentence in State v. Otis, No. C0-99-1761 (Minn. App. Aug. 22, 2000).  The Minnesota Supreme Court denied review on October 17, 2000. 

In July 2004, Otis moved to correct his sentence, arguing that it was imposed in violation of Apprendi and Blakely.  The district court denied relief.[1] 

After the denial of their petitions for postconviction relief, Reynolds and Otis learned that the chief judge of the First Judicial District, who had not ruled on either petition, had sent a memorandum to the Dakota County bench that cited with approval the county attorney’s position regarding retroactive application of the Blakely decision.  Reynolds and Otis sought removal of the entire First District bench, including the judges who had ruled on their petitions, arguing that the judges’ impartiality could be reasonably questioned because they received the memorandum.  In each case, the assistant chief judge granted the motion as to the chief judge but denied the motion as to the other members of the bench.  This appeal followed.

D E C I S I O N

 

I.

Reynolds and Otis argue that they are entitled to postconviction relief because their sentences were imposed in violation of the Sixth Amendment right to a jury trial announced in Blakely.  A petition for postconviction relief is a collateral attack on the judgment, which carries a presumption of regularity.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  We will not disturb the decision of the postconviction court absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

In Blakely, the United States Supreme Court refined the rule announced in Apprendi that “‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[.]’”  124 S. Ct. at 2536 (quoting Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63).  The Blakely courtheld that the greatest sentence a judge can impose is “the maximum sentence [that may be imposed] solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”  Id. at 2537.  Accordingly, the defendant has a Sixth Amendment right to a jury determination of any fact, except the fact of a prior conviction that increases the sentence above this maximum.  Id. at 2543.  The Minnesota Supreme Court recently concluded that Blakely announced a new constitutional rule that was not dictated by the holding of Apprendi.  State v. Houston, ___ N.W.2d ___, ___, 2005 WL 1981578, at *4 (Minn. Aug. 18, 2005). 

Reynolds and Otis argue that they are entitled to postconviction relief because the Blakely decision merely interprets Apprendi and that they did not waive the right to have a jury determine whether their offenses were committed as part of a pattern of criminal conduct in order to be sentenced as a career offender. 

Because Otis did not raise an Apprendi claim in his direct appeal, we first consider whether his postconviction claim is properly before us.  After a direct appeal has been taken, all matters raised in that appeal, along with all claims known but not raised in it, will not be considered in postconviction proceedings.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  But in the interest of fairness, we may consider a postconviction claim if the petitioner did not “deliberately and inexcusably” fail to raise it on direct appeal.  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quotation omitted).  Because, at the time of Otis’s direct appeal, we interpreted Apprendi to apply only to those sentences that literally exceeded the “statutory maximum,” State v. McCoy, 631 N.W.2d 446, 451 (Minn. App. 2001), we cannot conclude that Otis deliberately and inexcusably failed to raise the Apprendi claim in his direct appeal.  Otis, therefore, is not barred from challenging his sentence under Apprendi and Blakely in this postconviction proceeding. 

The supreme court’s decision in Houston is dispositive of the Blakely issue raised here.  In Houston, the defendant’s sentence became final after Apprendiwas decided but before Blakely was released.  2005 WL 1981578 at *1-*2.  In assessing Blakely’s applicability to the defendant’s sentence, the Houston court held that Blakely announced a new constitutional rule that was not dictated by the holding in Apprendi.  Id. at *1-*4.  Because Blakely does not affect the scope of the government’s power to proscribe crime and because it is not a watershed rule of criminal procedure, the supreme court further concluded that Blakely does not fall within the exceptions to the general rule of prospective application.  Id.at *4; see also Teague v. Lane, 489 U.S. 288, 307, 311, 109 S. Ct. 1060, 1073, 1076 (1989) (enumerating exceptions to prospective application).  Therefore, Blakely is not subject to retroactive application on collateral review.  Houston, 2005 WL 1981578 at *4. 

Reynolds did not bring a direct appeal.  Therefore, his conviction and sentence became final on March 10, 2003, 90 days after the December 10, 2002 judgment and sentence.  See Minn. R. Crim P. 28.02, subd. 4(3) (providing defendant must appeal from judgment in 90 days).  Otis’s conviction and sentence became final on January 15, 2001, 90 days after the Minnesota Supreme Court denied review, which is the deadline for filing a petition for a writ of certiorari to the United States Supreme Court.  See Sup. Ct. R. 13.  Blakely was decided on June 24, 2004.  Because the convictions and sentences at issue here were final when the new rule in Blakely was announced, Reynolds and Otis do not benefit from the new rule.  See O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (holding new rule of constitutional criminal procedure only applies retroactively to cases not yet final).  Accordingly, the district court did not err in denying their petitions for postconviction relief.

II.

            Reynolds and Otis next argue that denial of their motions to remove the judges who ruled on their petitions was an abuse of discretion.  They assert that the chief judge’s memorandum instructed the judges to deny postconviction petitions seeking retroactive application of Blakely, which calls into question the judges’ impartiality.  They maintain that the entire First District bench should have been removed.

            Whether to grant a motion to remove for cause is committed to the district court’s discretion, and absent an abuse of that discretion, we will not reverse.  Hooper v. State, 680 N.W.2d 89, 93 (Minn. 2004).  Removal of a judge for cause in a criminal proceeding is governed by Minn. R. Crim. P. 26.03, subd. 13.  State v. Laughlin, 508 N.W.2d 545, 547 (Minn. App. 1993).  Rule 26.03 provides in relevant part: “No notice to remove shall be effective against a judge who has already presided at the trial, . . . except upon an affirmative showing of cause on the part of the judge.”  Minn. R. Crim. P. 26.03, subd. 13(4).  “A postconviction proceeding is an extension of the criminal prosecution.”  Hooper, 680 N.W.2d at 92.  If a party has already appeared before the judge in the underlying criminal proceeding, there is no automatic right of removal at the postconviction phase.  Id.

 Under the rules [of criminal procedure], “[n]o judge shall preside over a trial or other proceeding if that judge is disqualified under the Code of Judicial Conduct.”  Minn. R. Crim. P. 26.03, subd. 13(3).  The Code of Judicial Conduct provides that judges shall disqualify themselves “in [ ] proceeding[s] in which [a] judge’s impartiality might reasonably be questioned.”  Minn. Code  Jud. Conduct, Canon 3(D)(1).

 

Id. at 93.  Although removal is warranted when the judge’s impartiality might reasonably be questioned, a petitioner’s subjective belief that the judge is biased does not warrant removal.  Laughlin, 508 N.W.2d at 548.

            Here, Reynolds and Otis did not question the impartiality of the judge in their respective cases until they learned of the chief judge’s memorandum, which was after each judge had ruled on the postconviction petitions.  In the memorandum, the chief judge stated that the analysis was offered “in an effort to promote consistency amongst judges within [the] district[.]”  But he also stated that each judge is “of course free to render any decision that [one] see[s] fit[.]” 

            The assistant chief judge removed the chief judge from reviewing postconviction petitions raising Blakely claims, finding it “understandable why [appellants] may reasonably question his impartiality in light of the adversarial nature of the County Attorney’s perspective and [the chief judge’s] approving comments.”  But the assistant chief judge determined that the memorandum did not provide a reasonable basis to question the impartiality of the rest of the First District bench.  To do so, he reasoned, would ignore the chief judge’s “invitation ‘to render any decision that [one] see[s] fit,’ an obvious caveat to his suggestion of district solidarity.”  We agree.  Although he offered an analysis of the retroactivity issue in the interest of promoting uniformity, the chief judge acknowledged his lack of authority to bind the other members of the bench and invited each judge to render his or her legal opinion independent of the proffered analysis.  The record is devoid of any evidence that the judges who ruled on the postconviction petitions at issue here did not employ their own legal analysis in rendering their decisions.  Accordingly, the removal motions were properly denied.

In his supplemental pro se brief, Otis also challenges the district judge’s impartiality based on actions taken both prior to and during trial.  Matters known, yet not raised on direct appeal, ordinarily are waived for purposes of a postconviction proceeding.  Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.  Because an exception to this general rule is not present here, we decline to address these issues raised for the first time on appeal in this postconviction proceeding. 

            Affirmed.