This opinion will be unpublished and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

A05-804

 

 

Ramon Tony Cantu, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed January 10, 2006

Affirmed

Huspeni, Judge*

 

 

Hennepin County District Court

File No. 95054710

 

John M. Stuart, State Public Defender, Rochelle Rene Winn, Assistant Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)

 

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

 

Amy Klobuchar, Hennepin County Attorney, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South 6th Street, Minneapolis, MN 55487 (for respondent)

 

            Considered and decided by Stoneburner, Presiding Judge; Kalitowski, 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 Ramon Tony Cantu challenges the district court’s denial of his petition for postconviction relief, arguing that the upward departure from his presumptive sentence violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004).  Because the rule announced in Blakely is not a watershed rule that is applied retroactively on collateral review to convictions that were final before Blakely was decided, we affirm.

FACTS

On December 4, 1995, appellant was sentenced to 278 months in prison after pleading guilty to third-degree murder under Minn. Stat. § 609.195, subd. 1(a) (1994).  The sentence was an upward durational departure from the sentencing guidelines based on judicial findings of aggravating factors.  In September 2004, appellant filed a petition for postconviction relief, arguing that the sentencing departure violated his Sixth Amendment right to a jury trial 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 on the grounds that the rule announced in Blakely does not apply retroactively on collateral review to convictions that were final before Apprendi was decided.  This appeal follows.

D E C I S I O N

Petitions for postconviction relief are collateral attacks on judgments which carry a presumption of regularity and, therefore, cannot be lightly set aside. Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  Whether Blakely applies retroactively to convictions final at the time Blakely was decided is a purely legal issue which this court reviews de novo.  See O’Meara v. State, 679 N.W.2d 334, 338 (Minn. 2004).    

Appellant contends that his sentence violated the Sixth and Fourteenth Amendments of the federal constitution, which, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 483, 120 S. Ct. 2348, 2359 (2000), and Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537 (2004), require that any fact used for an upward departure from the maximum sentence authorized by the jury’s verdict must be submitted to a jury and proved beyond a reasonable doubt.

Appellant argues that he is entitled to the retroactive application of the rule announced in Blakely, which issued after his sentence became final.  Minnesota jurisprudence on retroactivity provides that where a case announces a “new” federal constitutional rule of criminal procedure, the rule “must be applied to all cases pending on direct review.”  State v. Houston, 702 N.W.2d 268, 270 (Minn. 2005).  “A defendant whose conviction is final but who attacks the conviction or sentence on collateral review (e.g., a petition for post-conviction relief) does not receive the benefit of a ‘new’ rule of constitutional criminal procedure.”  Id. 

Appellant does not dispute that Blakely announced a new rule, but argues that he is nonetheless entitled to retroactive application of Blakely under the so-called “watershed rule,” which provides that a new rule of constitutional criminal procedure will be given full retroactive effect, even to those seeking collateral review, when the new rule “requires the observance of those procedures that . . . are implicit in the concept of ordered liberty” or “alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of any particular conviction.”  Id. at 271 (quoting Teague v. Lane, 489 U.S. 288, 311, 109 S. Ct. 1060, 1076 (1989) (emphasis in original, internal quotation marks omitted, omissions in original)).

There is no merit to appellant’s argument.  In Houston, the supreme court held that Blakely created a new rule of criminal procedure, but not a watershed rule that is applied retroactively on collateral review to convictions that were final before Blakely was decided.  Id. at 273.  Thus, pursuant to Houston, appellant is not entitled to retroactive application of the rule from Blakely.

            Affirmed.