This opinion will be unpublished and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

A04-1976

 

Scott Andrew Kohser, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed December 13, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. 99119997

 

Scott Andrew Kohser, 1101 Linden Lane, Faribault, MN 55021 (pro se appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, C-2000 Government Center, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Stoneburner, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges the denial of his petition for postconviction relief.  Because the district court did not abuse its discretion by denying the petition, we affirm.

FACTS

 

            After a mistrial was declared in appellant’s first trial on charges of burglary, theft, false imprisonment, and fleeing a police officer, appellant submitted to a bench trial on stipulated facts consisting of testimony and all but two exhibits admitted in the first trial.    A public defender had represented appellant at the first trial, but appellant hired private counsel for the bench trial.  Appellant was found guilty of burglary, theft, and fleeing a police officer, and was sentenced to 150 months in prison. 

            Represented by the same private attorney, appellant filed a direct appeal arguing that the second trial violated double jeopardy, and that the district court erred by permitting the victim’s identification testimony and abused its discretion in sentencing.  Appellant also submitted a supplemental pro se brief asserting eighteen additional issues, including ineffective assistance of counsel.  This court affirmed the conviction and sentence, finding no merit in appellant’s challenges, including the issues raised in his pro se supplemental brief.  State v. Kohser, No. C7-00-1778, 2001 WL 969024 (Minn. App. Aug. 28, 2001).  The supreme court denied appellant’s petition for review in October 2001. 

            In January 2003, appellant filed a pro se petition for postconviction relief identifying fifty-six issues including evidentiary issues concerning trial exhibits, issues about chain-of-custody and testing-methods, sentencing under the career-offender statute, and ineffective assistance of trial and appellate counsel.  On August 14, 2003, appellant wrote to the district court judge assigned to the petition, stating that he intended to represent himself and wanted to pursue “the ineffective assistance of counsel claim.”  He contended that he “could not raise any issues concerning [his petition] claims as they were not yet fully developed and several only discovered after [he] received [his] case file back.”  Appellant asked for a “reasonable extension” asserting “[t]here is an unsettled dispute as to documents/discovery notes that are missing from my file,” a dispute that he anticipated would be completed at the end of November 2003.  No action was taken on the petition, and appellant wrote to the district court judge again in July 2004 asking for thirty days to amend his petition.  The judge responded, noting that court records reflected that an appeal was filed on November 7, 2003, and stating that appellant could amend his petition to include only issues not on appeal.

            Appellant did not amend his postconviction petition and instead began an inquiry into what pending appeal the district court referenced.[1]  In August 2004, thirty-one days after the judge’s correspondence to appellant, the district court summarily denied appellant’s petition for failure to establish “any new grounds upon which relief can be granted.”  The district court noted that “if there is a pending [appeal], it is not proper for a post-conviction motion to be considered on any issues covered on appeal.”

            Appellant moved for reconsideration or clarification of the postconviction court’s order, claiming that the postconviction court wrongly assessed the appeal filed on November 7, 2003, because that appeal was unrelated to his conviction.  The postconviction court denied the motion, stating that “whether [the appeal] is criminal or civil . . . , there are no issues presented to this court which have established any new grounds upon which relief can be granted.”  Appellant moved for reconsideration or clarification of this order, contending that his first motion was a motion to vacate.  The postconviction court denied this motion, once more noting that no new grounds for relief had been raised.  Appellant now appeals from the denial of his petition for postconviction relief.

D E C I S I O N

 

            Petitions for postconviction relief are collateral attacks on judgments that carry presumptions of regularity, and therefore cannot be lightly set aside.  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  A postconviction court’s rulings are reviewed for an abuse of discretion.  State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994).  Review is limited to determining whether sufficient evidence exists in the record to support the findings of the postconviction court.  Scruggs v. State, 484 N.W.2d 21, 25 (Minn. 1992).

I.          Incorrect case history entry

            Appellant first argues that the postconviction court abused its discretion by not allowing time to correct an error in the case history of his criminal case file.  According to appellant, the case history incorrectly stated that an appeal was filed in this criminal case on November 7, 2003, because the appeal referred to was, in fact, filed by appellant’s former attorney regarding a civil dispute with appellant.  Appellant contends that the postconviction court’s erroneous reference to this appeal “lulled [him] into inactivity of filing an amended petition.”  Appellant’s argument that he was “lulled into inactivity” is unpersuasive.  Appellant actively responded to information that there was a November 7, 2003 appeal in several ways, but failed to amend the pending petition for postconviction relief despite having been told he could do so with any issue not covered in the appeal.

A defendant is entitled to a new trial when the district court “make[s] statements which could mislead a defendant about the appeal process.”  Hoagland v. State, 518 N.W.2d 531, 535 (Minn. 1994).  But the postconviction court did not mislead appellant.  Newly discovered evidence of issues not raised in a previous appeal or petition can be raised in another petition for postconviction relief, regardless of the denial of a prior petition.  Minn. Stat. § 590.01 (2004).  The postconviction court recognized this, stating in its final order that “[a]ny future documents submitted to this court by the petitioner that do not raise a new issue are hereby summarily denied.”  (Emphasis added.)  Appellant is not precluded from filing a petition raising issues that were not previously raised and could not have previously been raised in his direct appeal or first petition for postconviction relief.  The district court did not abuse its discretion by not permitting time to correct any error that may appear on the case history because any such error was not relevant to appellant’s ability to seek postconviction relief.

II.        Denial of petition

            The postconviction court denied appellant’s petition because appellant did not present new evidence which permitted relief.  The postconviction court noted that the “issues presented here by petitioner have been previously raised on appeal or were known but not raised on direct appeal.”  Appellant argues that the postconviction court abused its discretion because new evidence exists for relief and he intended to include that new evidence in an amended petition for postconviction relief.

            A petitioner bears the burden of proving, by a preponderance of the evidence, facts sufficient to reopen the case.  Hummel v. State, 617 N.W.2d 561, 564 (Minn. 2000).  To meet that burden, allegations must be supported by more than mere argumentative assertions which lack factual support.  Id.  Newly discovered evidence justifies postconviction relief only when it (1) was not known to the petitioner at the time of trial; (2) could not have been discovered through due diligence before trial; (3) is not cumulative, impeaching, or doubtful; and (4) probably would produce an acquittal or a more favorable result.  Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997).  Newly discovered evidence must also be material.  Dale v. State, 535 N.W.2d 619, 622 (Minn. 1995). 

Ineffective assistance of counsel

Appellant claims to have new evidence regarding ineffective assistance by his attorney at the bench trial and on appeal.  He relies primarily on an admonition of the attorney by the Office of Lawyers Professional Responsibility and an allegation that the attorney lost notes taken by appellant and family members.  But the admonition of the attorney is not material because it concerns audiotapes regarding other clients that the attorney’s office mistakenly sent to appellant.  And appellant presents no factual support for his assertion that the attorney lost any notes pertaining to appellant’s case or that such notes are material to the discovery of new evidence or the outcome of his trial.

Appellant also claims that his attorney provided ineffective assistance of counsel on appeal because the attorney was unaware of a 911 audiotape and a transcript of a police interview with the robbery victim.  A “strong presumption” exists that an attorney’s performance falls within an acceptable range of reasonable professional assistance.  Hale v. State, 566 N.W.2d 923, 927 (Minn. 1997).  A postconviction petitioner must allege facts that prove his attorney’s representation “fell below an objective standard of reasonableness” and “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). 

The 911 audiotape, its transcript, and a transcript of the police interview with the robbery victim were all admitted as exhibits in the first trial and were part of the stipulated facts in the subsequent bench trial.  The audiotape and transcripts were also part of the record submitted by appellant’s attorney on direct appeal, and the trial record was heavily cited by appellant’s attorney in a memorandum submitted to the district court supporting a motion for dismissal.  The attorney also cited the 911 call in a separate memorandum to the district court.  Appellant presents no factual evidence that the attorney did not review the audiotape and transcripts, or that he was otherwise unprepared. 

Appellant also argues that his attorney was ineffective because of his “over eagerness to focus solely on the double jeopardy issue created by the mistrial.”  But this is a matter of strategy for which the attorney deserves deference.  See Case v. State, 364 N.W.2d 797, 800 (Minn. 1985) (stating that when an attorney and the client “have divergent opinions as to what issues should be raised on appeal, his counsel has no duty to include claims which would detract from other more meritorious issues”).  Appellant does not argue that the attorney’s focus on the double-jeopardy issue fell below an objective standard of reasonableness or that, but for the attorney’s representation, the result on direct appeal would have been different.

Lastly, appellant argues that all of his “claims relating to any ineffective assistance of counsel claim are therefore not barred.”  Once a direct appeal is taken, any issue raised and any claim known but not raised are not to be considered in a subsequent petition for postconviction relief.  Pederson v. State, 692 N.W.2d 452, 463 (Minn. 2005).  This court rejected appellant’s ineffective-assistance-of-counsel claim against his public defender.  Kohser, 2001 WL 969024, *6.  Absent new relevant evidence, appellant’s arguments of ineffective assistance of counsel by his public defender are barred and do not need to be considered on appeal.

Trial judge’s comments

Appellant argues that he learned of prejudicial comments by the trial judge after his direct appeal and that he is not barred from bringing this claim in a postconviction petition.  He cites two alleged comments by the trial judge:  “you don’t fool me, Mr. Kohser” and “maybe there will be a miracle.”  Appellant also cites comments made by his attorney regarding the judge’s alleged prejudice toward defendants of German background. 

The alleged comments, however, all occurred before appellant’s direct appeal.  In an affidavit, appellant states that the judge said “you don’t fool me, Mr. Kohser” at a pretrial proceeding.  The fact that appellant claims the judge addressed him by name implies appellant was present when the comment was made and knew about this comment before his direct appeal.  At the stipulated-fact trial, the trial judge asked appellant, “Why do you want to give up your jury trial now?  Maybe there’ll be a miracle.”  Appellant therefore also knew about this comment before direct appeal.  Immediately after appellant’s sentencing, his attorney allegedly told appellant’s family members that the trial judge was prejudiced against Germans.  This comment also clearly occurred before the direct appeal.  Any postconviction-relief claim stemming from any of these allegedly prejudicial comments is barred by appellant’s failure to assert them on direct appeal.

Stipulated facts

Appellant argues that the postconviction court abused its discretion because the trial court referred to the two exhibits that were not part of the stipulated facts in the second trial.  Appellant was present and knew of the trial court’s reference, but failed to  raise the issue on direct appeal and is now barred from raising it in a petition for postconviction relief.

Lost legal mail

Appellant also argues that the postconviction court erred because the correctional facility lost his legal mail.  Appellant cites as evidence a motion filed on his behalf by his attorney asking this court to give appellant more time to file a pro se brief on direct appeal.  Other than complaining that the correctional facility did not deliver the state’s responding brief quickly enough, appellant fails to make any argument or assert any facts that the alleged lost legal mail will produce relevant, material, and newly discovered evidence on any issue that would have affected the outcome of his trial.

III.       Evidentiary hearing

            A postconviction court need not conduct an evidentiary hearing if the petition, files, and record “conclusively show that the petitioner is entitled to no relief.”  Hummel, 617 N.W.2d at 564.  If the petitioner’s claims have been previously decided on direct appeal, the postconviction court does not abuse its discretion by denying a hearing.  Severson v. State, 636 N.W.2d 808, 810 (Minn. 2001).  Because appellant failed to present new material claims that were not raised or that could not have been raised on direct appeal, the postconviction court did not abuse its discretion by denying an evidentiary hearing.

            Affirmed.