This opinion will be unpublished and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

A05-894

 

 

Terry Lee Branson, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed June 13, 2006

Affirmed

Toussaint, Chief Judge

 

Dakota County District Court

File No. KX-93-2198

 

 

Terry Lee Branson, OID #127967, MCF – Stillwater, 970 Pickett Street, Bayport, MN 55003 (pro se appellant)

 

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

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Terry Lee Branson appeals from an order denying his postconviction petition, challenging a conviction and sentence for attempted kidnapping.  Because we see no abuse of discretion and no error of law, we affirm.

FACTS

            In 1993, appellant pleaded guilty to charges of kidnapping and assault in the second degree.  The district court ordered a presentence investigation, which included a psychological evaluation.  Appellant was sentenced under the dangerous-offender statute to the maximum statutory sentences. 

In 1995, appellant argued on direct appeal that (1) the district court inappropriately applied the dangerous-offender statute, (2) his sentences were inappropriately enhanced and run consecutively to each other, and (3) his sentences unfairly exaggerated the criminality of his conduct.  His sentence was affirmed in part and reversed in part.  State v. Branson, 529 N.W.2d 1 (Minn. App. 1995), review denied (Minn. Apr. 18, 1995).

In 1997, appellant filed a pro se petition for postconviction relief, arguing (1) ineffective assistance of trial and appellate counsel, (2) the psychological evaluation was unfairly a psychosexual evaluation, (3) inappropriate imposition of consecutive sentences with an unexpired conviction, (4) prosecutorial misconduct, (5) the district court engaged in improper speculation as to his future behavior, and (6) his sentence for kidnapping unfairly exaggerated the criminality of his conduct.  The district court denied his petition.

In 2005, appellant filed a second petition for postconviction relief, raising issues previously raised in 1995 or 1997 and also arguing that the decision in Blakely v. Washington,  542 U.S. 296, 124 S. Ct. 2531 (2004), should be applied retroactively to his sentence.  The district court denied appellant’s second petition for postconviction relief on the grounds that Blakley did not apply and that the other issues had been raised previously.

D E C I S I O N

 “[W]here 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).  This rule applies if the defendant knew or should have known about the issue at the time of appeal.  Johnson v. State, 697 N.W.2d 194, 197 (Minn. 2005).  There are two exceptions.  First, when a “claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided, postconviction relief will be allowed.”  Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).  Second, “[i]n limited situations, if fairness so requires and if the petitioner did not ‘deliberately and inexcusably’ fail to raise the issue on direct appeal [this court] will allow substantive review of a claim contained in a petition for postconviction relief, either when the claim was known at the time of direct appeal or when its legal basis may have been reasonably available.”  Roby v. State,531N.W.2d 482, 484 (Minn. 1995) (quotation omitted).  

Appellant is procedurally barred from raising his claims because he argued them in either his 1995 appeal or his 1997 postconviction-relief appeal.  Further, none of the current claims is so novel that it could not have been discovered in appellant’s initial appeal or his subsequent 1997 postconviction petition.  The district court correctly found that appellant knew of or should have known of the claims and the legal bases for the claims at the time of direct appeal.

Appellant also argues that Blakely applies retroactively to his sentence because his sentence is not final as long as he has a form of appeal available to him or until the sentence has completely expired.  Whether a decision applies retroactively or prospectively is a legal question.  State v. Petschl, 692 N.W.2d 463, 470 (Minn. App. 2004), review denied (Jan. 20, 2005).  The retroactive application of a decision is an issue that this court reviews de novo.  State v. Costello, 646 N.W.2d 204, 207 (Minn. 2002).

State v. Houston, 702 N.W.2d 268, 273-74 (Minn. 2005), held that the Blakely decision created a new rule, but not a watershed rule, and was not to be applied retroactively on collateral review to convictions that were final before Blakely was decided.  Blakely does not apply retroactively to appellant’s sentence because his conviction was final prior to the decision in Blakely.  “[I]f a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, the defendant is entitled to benefit from that new rule.  But if the defendant’s conviction is already final at the time the new rule is announced, then the criminal defendant ordinarily may not avail himself of the new rule.”  O’Meara v. State, 679 N.W.2d 334, 339-40 (Minn. 2004).  “[A] case is pending until such time as the availability of direct appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the United States Supreme Court has been filed and finally denied.”  Id. at 336.  Appellant exhausted his opportunity for direct appeal, and the time for a petition for certiorari had elapsed in 1995, long before Blakely was released in 2004. 

Affirmed.