A05-36

Glenn Lee Figaro, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 25, 2005

Affirmed

Worke, Judge

St. Louis County District Court

File No. K2-00-600483

Mark D. Kelly, 400 Exchange Building, 26 East Exchange Street, St. Paul, MN 55101-2264 (for appellant)

Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Alan L. Mitchell, St. Louis County Attorney, St. Louis County Courthouse, 100 North Fifth Avenue West, Duluth, MN 55802 (for respondent)

Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

In this appeal from an order denying a postconviction petition that challenged a 2001 conviction for controlled-substance offenses, appellant argues that the postconviction court erred in denying the petition without an evidentiary hearing. Because the district court properly denied appellant’s postconviction petition, we affirm.

FACTS

Robert Jackley, a paid informant for the Duluth Police Department, made three purchases of crack cocaine from a person whom he identified as appellant Glenn Lee Figaro (a/k/a Daddy). Each transaction was recorded and contained conversations between Jackley and a person he called Daddy.

During pretrial proceedings, appellant argued that Jackley purchased the drugs from appellant’s cousin, Michael Hill, and that it was Hill’s voice on the tapes. At trial, Jackley testified that he knows Hill, that Hill and appellant do not look alike, and that he purchased the drugs from appellant. Further evidence at trial established that the seller drove a car rented to appellant’s mother, one sale was arranged through cell-phone contact and the owner of the cell phone gave the bills to appellant to pay, and two of the sales took place near appellant’s mother’s house.

A jury found appellant guilty of all controlled-substance charges. Appellant moved for a new trial based on newly discovered evidence of a tape-recorded conversation in which Hill allegedly confessed to the crimes. The district court denied appellant’s motion, noting that the evidence was not newly discovered because it could have been procured through diligence prior to trial.

On direct appeal, appellant argued that he was denied effective assistance of counsel and that the district court abused its discretion in refusing to allow an undisclosed witness to testify, in requiring appellant to testify to authenticate a recording, and in denying his motion for a new trial. This court affirmed appellant’s conviction. See State v. Figaro, No. C3-01-1450 (Minn. App. Apr. 30, 2002). On September 20, 2004, appellant filed a petition for postconviction relief, which the district court denied without an evidentiary hearing. Appellant now appeals the district court’s denial of his postconviction petition.

D E C I S I O N

We review a postconviction court’s denial of relief for abuse of discretion. Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999). Appellate review of postconviction proceedings is limited to whether there is sufficient evidence in the record to sustain the findings of the postconviction court. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).

Appellant petitioned for postconviction relief based on newly discovered evidence of a forensic audiologist’s report concluding that it was not appellant’s voice on the tapes and evidence from Jackley’s subsequent civil trial that contradicted the testimony he gave at appellant’s trial. The postconviction court denied the petition because appellant could have raised the audiologist’s report on direct appeal and newly discovered evidence may not be used for impeachment purposes.

To reopen a case based on newly discovered evidence, the defendant must prove: (1) the evidence was not known to him or his counsel before trial; (2) the evidence could not have been discovered through due diligence before trial; (3) the evidence is not cumulative, impeaching, or doubtful; and (4) the evidence would probably produce a different or a more favorable result. Wieland v. State, 457 N.W.2d 712, 714 (Minn. 1990). Here, appellant and his counsel were aware of the existence of the taped transactions before trial, and appellant even argued during pretrial proceedings that it was not his voice on the tapes. Further, appellant concedes, “[t]he voice analysis technology used by [the forensic audiologist] certainly existed at the time of [a]ppellant’s trial.” Thus, this evidence could have been discovered through due diligence before appellant’s trial. Additionally, it is unlikely the evidence would have produced a different or a more favorable result based on all of the evidence that the jury relied on when finding appellant guilty of all charges.

Further, “where 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, 252, 243 N.W.2d 737, 741 (1976). On direct appeal, appellant argued that the district court abused its discretion by denying his motion for a new trial based on newly discovered evidence, namely evidence of a taped conversation in which Hill allegedly confessed to the crimes. This court held that the district court did not abuse its discretion by denying appellant’s motion because the evidence was known at the time of trial. See State v. Figaro, No. C3-01-1450, 2002 WL 764660, at *5 (Minn. App. Apr. 30, 2002). Not only did appellant claim that it was Hill’s voice on the tapes during his trial, but he also raised that claim on direct appeal. Additionally, any claim that should have been known, but was not raised, at the time of direct appeal is also barred by Knaffla. King v. State, 649 N.W.2d 149, 156 (Minn. 2002). Appellant’s claim of new evidence of a forensic audiologist’s report was not raised during direct appeal and should have been, especially since appellant concedes that the voice-analysis technology existed at the time of his trial. Thus, not only does this claim fail under the test for newly discovered evidence, but it is also barred by Knaffla.

Appellant also argues that “evidence produced at the civil trial by . . . Jackley . . . raises discovery violation issues.” Appellant suggests that Jackley testified at his civil trial that he was paid for convictions he attained, but at appellant’s trial he testified that he did not receive additional compensation for convictions. To reopen a case based on newly discovered evidence, the defendant must prove that the evidence is not cumulative, impeaching, or doubtful. Wieland, 457 N.W.2d at 714. Evidence that Jackley received additional compensation for convictions that resulted from his testimony as an informant would only serve to impeach Jackley’s testimony. Further, “allegations raised in the petition [for postconviction relief] must be more than argumentative assertions without factual support.” Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997). Appellant does not provide any factual support for these allegations, but suggests that an evidentiary hearing will provide sufficient means to fully develop the record. An evidentiary hearing is not required, however, “unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.” Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990). Here, the allegations do not entitle appellant to a new trial because the new evidence would merely serve to impeach Jackley and a case cannot be reopened if the new evidence is merely impeaching. Further, even if Jackley testified at his civil trial to receiving additional compensation for convictions, appellant does not suggest that Jackley testified to receiving additional compensation for appellant’s conviction. Thus, the district court did not abuse its discretion in denying appellant’s petition for postconviction relief without an evidentiary hearing.

Affirmed.