A06-327

Shakur Al-Hakim,

aka Douglas Welch, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed October 10, 2006

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 97096972

Shakur Al-Hakim, #185149, MCF/Rush City, 7600 525th Street, Rush City, Minnesota 55069 (pro se appellant)

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

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

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

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

HUDSON, Judge

Appellant Shakur Al-Hakim challenges the district court’s denial of his petition for postconviction relief regarding his 1998 conviction of and sentence for second-degree murder. Appellant argues that the district court abused its discretion by (1) failing to consider the Minnesota Supreme Court’s decision in State v. Shattuck, 704 N.W.2d 131 (Minn. 2005); (2) failing to address whether the upward departure provided in the plea agreement was improper based on a retroactive application of State v. Misquadace, 644 N.W.2d 65 (Minn. 2002); and (3) failing to hold an evidentiary hearing to address his claim of ineffective assistance of counsel.

This is appellant’s second appeal to this court. Appellant filed his first petition for postconviction relief in 2002 and appealed the denial of that petition in 2003. Welch v. State, No. A03-111, 2003 WL 22016087 (Minn. App. Aug. 26, 2003), review granted (Minn. Nov. 25, 2003), review denied (Minn. Apr. 19, 2005).[1] In Welch, this court addressed whether (1) appellant’s guilty plea was voluntary and intelligently entered; (2) appellant received ineffective assistance of trial counsel; (3) appellant’s plea agreement was a sufficient basis for a sentencing departure under Misquadace; and (4) the state public defender’s office had rendered adequate postconviction assistance. The Minnesota Supreme Court vacated the Welch decision with respect to sentencing, and this court revisited that issue in an order opinion. Welch v. State, No. A03-111 (Minn. App. Feb. 2, 2005) (order op.). This court held that Welch was not entitled to retroactive application of State v. Misquadace, 644 N.W.2d 65, 72 (Minn. 2002). See Hutchinson v. State, 679 N.W.2d 160, 165 (Minn. 2004) (holding that Misquadace does not apply to convictions that were final before Misquadace was decided).

Because all of appellant’s current claims are either procedurally barred or have already been addressed by this court, we affirm.

FACTS

Appellant was charged with first-degree murder in 1997. Pursuant to a plea agreement, appellant was convicted of and sentenced for second-degree murder in 1998. In January 2006, appellant filed his second petition for postconviction relief. The district court denied appellant’s petition, finding that several of his claims were barred because they had already been decided by this court. The district court also determined that appellant’s claims were barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), that his claims were untimely, that his sentence was authorized by law, and that he was not denied effective assistance of counsel. This appeal follows.

D E C I S I O N

On appeal, this court reviews a postconviction court’s findings “to determine whether there is sufficient evidentiary support in the record” and reviews denials of postconviction relief, including those based on the Knaffla procedural bar, for an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001); Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005) (denials of postconviction relief based on Knaffla are reviewed for abuse of discretion).

In this second petition for postconviction relief, “we will not consider claims which appellant raised or knew of and could have raised in earlier review.” Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). There are two exceptions to this rule. First, postconviction relief will be permitted if a claim is so novel that its legal basis was unavailable at the time of the previous appeal. Case v. State, 364 N.W.2d 797, 800 (Minn. 1985). Second, this court will consider a claim “[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.” Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (quotation omitted).

A postconviction decision regarding a claim of ineffective assistance of counsel involves mixed questions of fact and law and is reviewed de novo. Opsahl v. State, 677 N.W.2d 414, 420 (Minn. 2004). But “[c]laims of . . . ineffective assistance of trial counsel generally may not be raised in a petition for postconviction relief if the petitioner knew of the claim at the time of an earlier petition or direct appeal.” Dunn v. State, 578 N.W.2d 351, 352–53 (Minn. 1998). The district court does not abuse its discretion when it “summarily den[ies] a second or successive petition for similar relief on behalf of the same petitioner and may summarily deny a petition when the issues raised in it have previously been decided by the Court of Appeals or the Supreme Court in the same case.” Minn. Stat. § 590.04, subd. 3 (2004).

Appellant argues that his sentence, determined pursuant to a plea agreement, violated the rule delineated in Misquadace. This court already addressed the applicability of Misquadace to appellant’s case and held that Misquadace does not have a retroactive effect. Welch, 2003 WL 22016087, at *3; Welch v. State, No. A03-111 (Minn. App. Feb. 2, 2005) (order op.).

Appellant also argues that his sentence violates the rule set out in Shattuck, which determined that Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004),applies to sentences imposed under the Minnesota State Sentencing Guidelines. Shattuck, 704 N.W.2d. at 141–42. In 2005, however, this court determined that appellant is not entitled to relief under Blakely because the rule is not retroactive. Welch v. State, No. A03-111 (Minn. App. Feb. 2, 2005) (order op.).

Appellant finally argues that he received ineffective assistance of counsel because his trial counsel failed to provide adequate assistance with an appeal of his 1998 conviction. The time for direct appeal of appellant’s case expired in 1999, and his current claim of ineffective assistance of counsel could have been raised when he filed his first postconviction petition in 2002. Appellant alleges no new facts or circumstances that would defeat the Knaffla procedural bar, nor does he offer an explanation of why his failure to raise this particular issue at the time of his first postconviction petition was not deliberate and inexcusable. We conclude that the district court did not abuse its discretion when it denied appellant’s second petition for postconviction relief.

The district court mistakenly concluded that appellant did not request an evidentiary hearing. The record reflects that appellant requested an evidentiary hearing on his ineffective-assistance-of-counsel claim. But “[a]n evidentiary hearing upon a petition for postconviction relief is not required unless the petitioner alleges such facts which, if proved by a fair preponderance of the evidence, would entitle him or her to the requested relief.” Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996). The district court analyzed the merits of appellant’s ineffective-assistance-of-counsel claim and determined that, in addition to being procedurally barred, it was without merit. Because appellant did not allege facts that would have entitled him to relief, the district court did not abuse its discretion when it denied his petition without a hearing.

Affirmed.

[1] Appellant has since changed his name from Douglas Welch to Shakur Al-Hakim.