This opinion will be unpublished and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

A05-402

 

 

State of Minnesota,

Respondent,

 

vs.

 

Willie G. Scott,

Appellant.

 

 

Filed January 10, 2006

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 95103407

 

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

 

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

 

Willie G. Scott, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

Appellant challenges his convictions of attempted murder in the first degree and assault in the second degree.  He argues that the jury selection system violated his right to equal protection under the Fourteenth Amendment of the United States Constitution.  Because appellant waived his equal protection claim when he failed to raise the issue in his direct appeal and first petition for postconviction relief, we affirm.

FACTS

 

            Appellant Willie G. Scott was convicted of attempted murder in the first degree and assault in the second degree on June 7, 1996.  He appealed those convictions, arguing that the prosecutor committed serious misconduct during the closing argument.  State v. Scott, No. C8-96-1962, 1997 WL 360598, at *1 (Minn. App. July 1, 1997), review denied (Minn. Aug. 26, 1997).  On July 1, 1997, this court affirmed the district court, and on August 26, 1997, the Minnesota Supreme Court denied appellant’s petition for further review.

            Appellant filed a petition for postconviction relief in May 2002, arguing that (1) he was entitled to an evidentiary hearing based on the victim’s statement that police coerced him into testifying; (2) the complaint was defective; (3) he was denied his right of effective assistance of counsel; and (4) the district court abused its discretion in ordering an upward durational sentencing departure.  The district court denied appellant’s petition, and on June 10, 2003, this court affirmed the district court.  Scott v. State, No. C3‑02‑1748, 2003 WL 21321571, at *1 (Minn. App. June 10, 2003).

            On November 16, 2004, appellant filed another petition for postconviction relief, this time arguing that the jury selection process violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.  The district court denied the petition and this appeal follows.

D E C I S I O N

 

            “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  This court affords great deference to a postconviction court’s findings and will not reverse the court’s decision unless the postconviction court abused its discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  But we review a postconviction court’s determinations of legal issues de novo.  Pederson v. State, 692 N.W.2d 452, 459 (Minn. 2005).

            Once a party has directly appealed his criminal conviction and subsequently files petitions for postconviction relief, a postconviction court generally will not consider matters raised in the direct appeal or matters that were known to the defendant and could have been raised in previous petitions.  Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003).  This rule also applies if the defendant should have known about the issue at the time of the appeal.  King v. State, 649 N.W.2d 149, 156 (Minn. 2002). Minnesota courts recognize two exceptions to this rule:  (1) where a claim is so novel that its legal basis was not reasonably available to counsel at the time of the direct appeal, or (2) where the interests of fairness and justice require relief even though the party knew of the issue at the time of the direct appeal.  Thompson v. State, 691 N.W.2d 841, 843 (Minn. 2005).

            Here, appellant challenges his 1996 convictions on the ground that the jury selection process violated his right to equal protection under the Fourteenth Amendment of the United States Constitution.  But appellant did not raise this claim either in his 1996 direct appeal or in his 2002 petition for postconviction relief.  Additionally, appellant offers no evidence that his claim is novel or that fairness and justice require relief.  We therefore conclude that he has waived his equal protection argument, and is not entitled to a new trial.

            Even if we, for the sake of further analysis, were to address appellant’s claim on the merits, we would find no equal protection violation.  To establish that an equal protection violation occurred in the context of jury selection, the defendant must show that the selection procedure “resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.”  Castaneda v. Partida, 430 U.S. 482, 494, 97 S. Ct. 1272, 1280 (1977).  Thus, the defendant must establish that (1) the group excluded is a recognizable, distinct class, capable of being singled out for diverse treatment; (2) the degree of underrepresentation occurred over a significant period of time; and (3) the jury selection process is susceptible to abuse or is not racially neutral.  Id.  If the defendant is successful, he has established a prima facie case of discriminatory purpose and the burden then shifts to the state to rebut the defendant’s case.  Id. at 495, 97 S. Ct. at 1280.

            Here, appellant argues that the petit jury selection process discriminated against African Americans and therefore violated his right to equal protection.[1] But appellant has failed to show that African Americans have been underrepresented over a significant period of time.  Appellant asserts that at the time of his 1996 trial, African-American citizens comprised 5.65% of the Hennepin County population but that African Americans comprised only 4.4% of the Hennepin County jury pool.[2]  Presuming that appellant’s statistics are correct, the absolute disparity between the percentage of African Americans in the jury pool and the community is 1.25%.  But in State v. Willis, 559 N.W.2d 693, 701 (Minn. 1997), the Minnesota Supreme Court stated that “[a]n absolute disparity of 2.10 percent simply does not demonstrate substantial underrepresentation.”  Because the absolute disparity is smaller here than it was in Willis, appellant has failed to make a prima facie case of purposeful discrimination. 

Moreover, even if appellant could establish underrepresentation, he fails to show that it has occurred for a significant time period.  See Castaneda, 430 U.S. at 495-96, 97 S. Ct. at 1280-81 (concluding that an 11-year period was a significant time period).  Appellant argues that African Americans have been underrepresented in petit jury pools since the 1990s, but he has not provided statistics comparing the composition of the community with the jury pools throughout the 1990s.

Finally, appellant argues that his equal protection rights were violated because Hennepin County has systematically excluded African Americans from the jury selection process.[3]  But, as noted above, appellant has not shown that African Americans are underrepresented.  Additionally, in State v. Roan, 532 N.W.2d 563, 569 (Minn. 1995), the Minnesota Supreme Court upheld the Hennepin County jury selection system because it concluded that the system did not systematically exclude minorities. 

            Affirmed.