A06-511

Lee Charles Draughn, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed February 6, 2007

Affirmed

Hudson, Judge

Hennepin County District Court

File No. 95085109

Lee Charles Draughn, OID No. 187052, MCF – Faribault, 1101 Linden Lane, Faribault, Minnesota 55021-6400 (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, J. Michael Richardson, Assistant County Attorney, C-2000 Government Center, Minneapolis, Minnesota 55487 (for respondent)

Considered and decided by Minge, Presiding 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

Pro se appellant Lee Charles Draughn challenges the district court’s order summarily denying his second petition for postconviction relief, arguing that the district court erred by concluding that the Knaffla rule procedurally bars his claims. We affirm.

FACTS

In April 1996, a jury convicted appellant of second-degree intentional murder in violation of Minn. Stat. § 609.19, subd. 1 (1996). The district court sentenced appellant to a presumptive sentence of 326 months, stating that the sentence was “neither a dispositional nor durational departure.” On direct appeal, this court affirmed. State v. Draughn, No. C2-96-1519, 1997 WL 360594 (Minn. App. July 1, 1997).

Subsequently, appellant filed his first petition for postconviction relief. The district court denied appellant’s petition, concluding that the issues appellant raised were barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976). This court affirmed. Draughn v. State, No. C0-02-590, 2003 WL 21005314 (Minn. App. May 6, 2003).

On January 10, 2006, appellant filed his second petition for postconviction relief. The district court summarily denied appellant’s petition. The district court held that the Knaffla rule procedurally barred consideration of these issues because they “were either raised or known at the time of [appellant’s] direct appeal and first petition for post-conviction relief.” This appeal follows.

D E C I S I O N

Appellant challenges the district court’s order summarily denying his second petition for postconviction relief, arguing that the district court erred by concluding that appellant’s claims are barred by the Knaffla rule. This court reviews a district court’s denial of a petition for postconviction relief for an abuse of discretion. Robledo-Kinney v. State, 637 N.W.2d 581, 585 (Minn. 2002).

A person convicted of a crime who claims that the conviction or sentence violates the person’s constitutional rights or the laws of this state or the United States may file a petition with the district court in the county where the petitioner was convicted “to vacate and set aside the judgment . . . or to resentence the petitioner or grant a new trial or correct the sentence.” Minn. Stat. § 590.01, subd. 1 (2004). An evidentiary hearing is required if the facts that constitute the basis of the petitioner’s claim, if proven, would entitle the petitioner to the relief requested. Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995). However, the district court may summarily deny the petition if the petition is a second or successive petition which seeks similar relief on behalf of the same petitioner. Minn. Stat. § 590.04, subd. 3 (2004). In addition “where a 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.” Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. But courts may consider issues otherwise barred by Knaffla if: (1) the claim is so novel that it can be said that the legal basis was not reasonably available at the time that the direct appeal was taken, or (2) fairness requires consideration of the issue and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal. Roby, 531 N.W.2d at 484.

In his second petition for postconviction relief appellant claims that: (1) the admission of Spreigl evidence violated the Supreme Court’s decision in In re Winship, 397 U.S. 358, 90 S. Ct. 1068 (1970); (2) Hennepin County district court was not the proper venue for his trial; (3) his 1993 conviction for fifth-degree possession of cocaine should not have been considered in the computation of his criminal-history score; and (4) he was denied a fair trial because the district court did not instruct the jury that the use of a dangerous weapon was an element of the crime and the state did not prove that element beyond a reasonable doubt.

The district court concluded that these issues “were either raised or known at the time of [appellant’s] direct appeal and first petition for post-conviction relief,” and that his claims “do not fall under the exceptions to the Knaffla rule.” The district court concluded that appellant failed to show that fairness requires consideration of his issues, or that any of the issues raised are novel. In response, appellant contends that fairness requires consideration of his first three issues because he did not deliberately fail to raise them on direct appeal. Furthermore, appellant argues that his fourth issue is novel and that the legal basis for asserting it did not exist at the time of his direct appeal because the Supreme Court had not yet decided Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). We find these arguments unpersuasive.

First, appellant’s argument that fairness requires consideration of his first three issues because he did not deliberately fail to raise them on his direct appeal has no factual support in the record. Nor does appellant articulate any factual basis that would support a finding that his failure to raise these issues was not inexcusable.

Second, appellant’s argument that his Blakely issue is novel does not comport with the law. Significantly, the Minnesota Supreme Court recently rejected this argument in Mckenzie v. State, 713 N.W.2d 840 (Minn. 2006), and we likewise reject it here.

Blakely requires that any fact (other than a prior conviction) that is necessary to support a sentence exceeding the maximum authorized by the jury’s verdict or a guilty plea must be admitted by the defendant or proven beyond a reasonable doubt. Blakely, 542 U.S. at 301, 124 S. Ct. at 2536; United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). In State v. Houston, the Minnesota Supreme Court held that Blakely constitutes a new rule of constitutional criminal procedure. 702 N.W.2d 268, 273 (Minn. 2005). As a new rule of constitutional criminal procedure, Blakely only applies retroactively to cases pending on direct review at the time it was announced. O’Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004). A case is “pending” until the availability of appeal has been exhausted and the time for filing a petition for certiorari with the United States Supreme Court has ended or a certiorari petition has been denied. O’Meara, 679 N.W.2d at 339; Mckenzie, 713 N.W.2d at 842.

Applying these principles, the supreme court rejected appellant’s argument in Mckenzie that he was entitled to relief under Blakely because the jury did not specifically find beyond a reasonable doubt that he used a firearm in the commission of a crime. Mckenzie,713 N.W.2d at 842. Further, the supreme court concluded that because “Mckenzie’s case was not pending on direct review when Blakely was decided . . . Blakely does not apply retroactively to Mckenzie’s case.” Id. In addition, the supreme court held that even if Blakely was applicable to Mckenzie’s case, the rule of Blakely was not implicated because Mckenzie’s life sentence was mandatory and his sentence thus did not exceed the maximum authorized by the facts established by the jury verdict. Id.

Here, this court affirmed appellant’s conviction on July 1, 1997, and the time for filing a petition for certiorari ended 90 days later. Sup. Ct. R. 13.1. Accordingly, appellant’s case was not pending on direct review when Blakely was decided in 2004. Thus Blakely does not apply retroactively to his case. But, even if Blakely did apply retroactively to appellant’s case, his sentence does not violate the rule established in Blakely. The district court sentenced appellant to the presumptive sentence authorized by the facts the jury’s verdict established, stating that the sentence was “neither a dispositional nor a durational departure.”

Because the record and the law do not support appellant’s arguments, and because the district court properly applied the law, the district court’s denial of appellant’s second petition for postconviction relief was not an abuse of discretion.

Affirmed.

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