A06-575

Robert James Dixon,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed January 9, 2007

Affirmed

Hudson, Judge

Hennepin County District Court

File Nos. 94033956, 95053595

Robert James Dixon, OID No. 180596, 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, Linda K. Jenny, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, Minnesota 55487

Considered and decided by Minge, Judge; Hudson, Judge; and Huspeni, Judge.*

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

HUDSON, Judge

On appeal from an order denying his postconviction petition to correct his 1995 sentence for second-degree murder and aggravated robbery, appellant argues that (1) the district court failed to file a departure report within the required 60-day period; (2) the district court sentenced the offenses in the wrong order; (3) although appellant agreed to the upward departures, his waiver of his right to be sentenced under the guidelines was not valid; (4) the guidelines unconstitutionally provided for departures based on judicial fact-finding, as later proscribed in Blakely; and (5) his attorney was ineffective in failing to file a direct appeal. We affirm.

FACTS

On January 19, 1995, pursuant to a plea agreement, appellant Robert James Dixon pleaded guilty to second-degree murder and aggravated robbery. The district court convicted him and ordered that his sentences be served consecutively, for a total of 432 months in prison. Appellant’s sentence reflected an upward durational departure on both the second-degree murder and aggravated robbery offenses. Both offenses were sentenced with a criminal history score of zero. At the sentencing hearing, the district court announced the sentence for second-degree murder before the sentence for aggravated robbery, the reverse order in which they were committed.

Appellant did not file a direct appeal of his plea or sentence and the period for direct appeal expired in 1995. In September 2004, appellant filed his first petition for postconviction relief in which he argued that his guilty plea was not knowing and voluntary and that his conviction was not supported by sufficient evidence. On April 11, 2005, the district court denied appellant’s petition without a hearing. He appealed the district court’s decision in June 2005, but the appeal was dismissed at his request in September 2005.

On October 28, 2006, appellant filed his second petition for postconviction relief in which he argued that his sentence should be reduced from 432 months to 337 months. On January 30, 2006, the district court denied appellant’s petition without a hearing. This appeal follows.

D E C I S I O N

Appellant argues that the district court abused its discretion by denying his petition for postconviction relief. On appeal, this court “review[s] a postconviction court’s findings to determine whether there is sufficient evidentiary support in the record.” Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001) (citation omitted). This court gives great deference to the district court’s findings of fact and will not disturb those findings unless they are clearly erroneous. Id. (citation omitted). The decisions of a postconviction court will not be reversed absent an abuse of discretion. Id. (citation omitted).

Claims that were raised in an earlier postconviction petition and matters that were known and could have been raised will not be considered upon a subsequent petition for postconviction relief. 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). However, “[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 (Minn. 1998). An evidentiary hearing is not required unless the petitioner alleges facts which, if proved by a fair preponderance of the evidence, would entitle him to the requested relief. Roby v. State, 547 N.W.2d 354, 356 (Minn. 1996).

This is appellant’s second petition for postconviction relief and all of his claims are procedurally barred under Knaffla because each of appellant’s arguments could have been raised in his first petition for postconviction relief. Wayne, 601 N.W.2d at 441. Appellant does not argue that the legal basis for any of his claims was unavailable at the time of his first petition; he provides no compelling reason for why he failed to raise these issues; and he does not argue that the interests of justice require this court to address his claims now. Further, appellant does not cite any legal authority to support his claims, and he does not allege any facts that would defeat the Knaffla procedural bar.

Even if we were to consider the merits of appellant’s claims, he would still not be entitled to relief. First, appellant is not eligible for relief under Blakely, because his conviction was final nearly ten years before Blakely was decided. Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). The Minnesota Supreme Court determined that the Blakely rule does not apply retroactively and does not apply to cases that were final prior to the Blakely rule’s effective date of June 24, 2004. State v. Houston, 702 N.W.2d 268, 273 (Minn. 2005). Second, as the district court correctly noted, its failure to file a departure report in a timely manner does not invalidate appellant’s sentence. Third, since both of appellant’s convictions were sentenced with a criminal history score of zero, the order in which they were announced is irrelevant. Fourth, appellant has not alleged any facts that suggest the waiver of his right to be sentenced under the guidelines was invalid, nor has he alleged any facts that would warrant a hearing. Finally, appellant has not shown that his counsel was ineffective or that he has suffered any harm as a result.

Because appellant’s claims are both procedurally barred and without merit, we conclude that the district court did not abuse its discretion by denying appellant’s petition for postconviction relief without a hearing.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.