This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-890

 

Roger Joseph Foster, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed June 5, 2007

Affirmed

Wright, Judge

 

St. Louis County District Court

File No. K7-98-101824

 

 

Roger J. Foster, 970 Pickett Street North, Bayport, MN  55003 (pro se appellant)

 

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

 

Melanie S. Ford, St. Louis County Attorney, 100 North Fifth Avenue West, Suite 501, Duluth, MN  55802 (for respondent)

 

 

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this appeal from an order denying a petition for postconviction relief, appellant argues that he was denied the effective assistance of trial counsel based on the failure to investigate or give notice of an alibi defense and the failure to challenge a sentencing departure.  Appellant also argues that he was denied the effective assistance of appellate counsel based on the failure to pursue a number of issues on direct appeal and in postconviction proceedings.  Appellant also claims that errors were committed in calculating his criminal-history score that the district court erroneously imposed consecutive sentences, and that prison authorities used the wrong evidentiary standard in prison disciplinary proceedings.  We affirm.

FACTS

 

            Petitioner Roger Foster appeals the district court’s summary denial of his third petition for postconviction relief.  The underlying offenses arise from a 1998 crime spree for which Foster was convicted of 11 felony counts and was sentenced to serve a total of 249 months for first-degree burglary (111 months), third-degree burglary (27 months concurrent), motor-vehicle theft (23 months concurrent), second-degree arson (51 months concurrent), two counts of first-degree aggravated robbery (48 months consecutive for each), two counts of second-degree assault (21 months consecutive for each), and unlawful possession of a firearm (33 months concurrent).  Foster’s first petition for postconviction relief, which was heard in 2003, resulted in a reduction of his sentence to 201 months.  The district court denied the remaining requests for postconviction relief, which were based on a claim of ineffective assistance of trial counsel.  We affirmed the conviction and the denial of postconviction relief.  Foster v. State, No. A03-991 (Minn. App. June 8, 2004), review denied (Minn. Aug. 25, 2004). 

            In 2005, Foster sought a correction of sentence, which the district court summarily denied, and we affirmed in Foster v. State, No. A05-1003 (Minn. App. May 23, 2006) (order), review denied (Minn. Aug. 23, 2006).  While that case was pending in this court, Foster filed the current petition for postconviction relief, alleging ineffective assistance of trial counsel, ineffective assistance of postconviction counsel, errors in the calculation of his criminal-history score, and unlawful extension of his incarceration for a minor disciplinary offense.  The district court summarily denied the petition on March 10, 2006.  Three days later, Foster served a motion to remove Judge Pagliaccetti, who had already decided the matter.  On March 17, 2006, Judge Pagliaccetti denied the motion as untimely.  Foster appealed both the March 10 and March 17 orders.[1]

D E C I S I O N

The district court may deny without a hearing a second or successive postconviction 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 (2006); see Spears v. State, 725 N.W.2d 696, 700 (Minn. 2006) (“[A] postconviction court will generally not consider claims that were raised or were known and could have been raised in an earlier petition for postconviction relief.”).  And when a direct appeal has been taken, all matters raised in the appeal and all claims that are 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).  The Knaffla rule applies “if the defendant knew or should have known about the issue at the time of appeal.”  King v. State, 649 N.W.2d 149, 156 (Minn. 2002). 

            There are two exceptions to the Knaffla rule.  A district court may address an issue that was not previously raised “(1) if a novel legal issue is presented, or (2) if the interests of justice require review.”  Spears, 725 N.W.2d at 700.  To invoke the interests-of-justice exception, a petitioner must demonstrate that fairness requires the district court to address the issue, that the petitioner did not deliberately and inexcusably fail to raise the issue previously, and that the claim has substantive merit.  Id.  It is the petitioner’s burden to establish by a fair preponderance of the evidence facts that warrant reopening the case.  Minn. Stat. § 590.04, subd. 3; State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  An evidentiary hearing is not required if “the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (2006).

            We review a postconviction court’s findings to determine whether they are supported by sufficient evidence in the record.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).  In doing so, we “afford great deference to a district court’s findings of fact and will not reverse the findings unless they are clearly erroneous.”  Id.  We will not disturb the decision of a postconviction court unless it constitutes an abuse of discretion.   Id.  Summary denial of a second or subsequent petition for postconviction relief is not an abuse of discretion if the petition is seeking relief similar to that denied in the first petition.  Spears, 725 N.W.2d at 701.

I.

A.

            Foster argues that the district court abused its discretion by denying his petition for postconviction relief.  The district court determined that most of Foster’s claims were barred because they had been raised or should have been raised in the earlier postconviction petitions.  Foster claims that “newly discovered evidence” establishes that his trial counsel was ineffective and that his postconviction counsel failed to present this evidence to the postconviction court.  But this newly discovered evidence, most of which was contained in his trial counsel’s file, does not provide a basis for the relief Foster seeks.

            Foster raises several claims of ineffective assistance of counsel.  The claims against his trial counsel and his postconviction counsel are interconnected in that Foster claims that his postconviction counsel was ineffective in proving that his trial counsel was ineffective.  Foster first claims that his trial counsel had a conflict of interest and that a letter written by Amanda Niemi establishes that his trial counsel made inappropriate public comments about the case while it was pending in district court, stating that he hoped “those guys get locked up for a long time.”  Citing Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S. Ct. 1708, 1716 (1980), Foster argues that this evidence should have been presented to the district court because such a conflict of interest requires a new trial.  But Cuyler involved the representation of multiple defendants in the same trial.  Id.  Foster has not cited, nor has our research disclosed, any authority for the proposition that his trial counsel’s statement, if it were made, constitutes a conflict of interest.  Arguably, such a statement could constitute a violation of Minn. R. Prof. Conduct 3.6, which prohibits a defense attorney from making public statements that “will have a substantial likelihood of materially prejudicing a jury trial in a pending criminal matter.”  But Foster has not alleged that this comment was prejudicial at trial.  Consequently, the failure to raise this issue does not constitute ineffective assistance of postconviction counsel.

            Foster also claims that newly discovered documents show that his trial counsel committed “perjury” when he misled the district court about his knowledge of alibi witnesses.  The record indicates that, in the context of his request to the district court to allow alibi witnesses to testify at trial, despite late disclosure, Foster’s trial counsel stated that “[Foster] did indicate to me a couple of weeks ago or several--two or three weeks ago . . . that he had some folks that he wanted.”  But his trial counsel did not “remember specifically if [Foster] gave [him] the names.”  The new documents that Foster relies on are entirely consistent with his trial counsel’s original statement to the district court regarding the proposed witnesses, Carissa Sleen, Robert Baumchen, Sunny Thompson and Justin Sislo.  The documents Foster relies on indicate that his trial counsel knew about the alibi witnesses weeks before trial, but only by nickname.  He did not have full names and phone numbers or an opportunity to interview the witnesses until the morning of trial.  As a matter of trial strategy, a defense attorney may choose not to disclose witnesses of whom the state has virtually no knowledge and who have not yet been interviewed.  And as we observed previously, the district court’s determination that Foster’s trial counsel “argued vigorously for the introduction of the testimony and did not provide an inadequate defense” was not an abuse of discretion.  Foster, No. A03-991, 2004 WL 1244151, at *7.  Therefore, Foster’s “new” complaints regarding his trial counsel’s failure to investigate and present the alibi witnesses do not entitle him to relief.

            Foster next contends that he received ineffective assistance of postconviction counsel.  To show ineffective assistance of counsel, Foster must demonstrate that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for his counsel’s error, the result of the proceeding would have been different.  Carney v. State, 692 N.W.2d 888, 892 (Minn. 2005). 

            Foster first complains of his postconviction counsel’s failure to seek relief based on his trial counsel’s conflict of interest.  But as discussed above, this argument is without merit.  The same is true for Foster’s claims regarding his postconviction counsel’s failure to raise the issue of his trial counsel’s “perjury” because the evidence does not support Foster’s claim that his trial counsel lied.  Foster also contends that his postconviction counsel was ineffective for failing to pursue witnesses Justin Sislo, Todd O’Donnel, and Amanda Niemi, and public-defender investigators David Langfeld and Michael Kirt.  But these claims are without support in the record.  To the contrary, the record establishes that Foster’s postconviction counsel attempted to secure the presence of incarcerated persons Carissa Sleen, John Douglas, and Clayton Celley at the April 2003 postconviction evidentiary hearing and that the district court issued several orders to that effect.  Moreover, Douglas and Thompson testified at the postconviction hearing.  In light of the efforts of postconviction counsel to secure the presence of witnesses, it appears to have been a strategic decision not to subpoena the other individuals.  As a letter from postconviction counsel to Foster indicates, the two did not entirely agree on the postconviction strategy. 

            Furthermore, Sislo previously had refused to cooperate, and O’Donnel had changed his story since the statement he gave in June 1999.  Therefore, the decision of Foster’s postconviction counsel to forego testimony from Sislo, O’Donnel, and Niemi at the postconviction hearing is entirely within the bounds of reasonable representation.  Indeed, if Foster’s postconviction counsel had presented the evidence, it likely would have been inadmissible hearsay because Sislo was uncooperative; highly unreliable, since O’Donnel’s statements were inconsistent; and unpersuasive, since Niemi’s statement does not establish a conflict of interest.  And although investigator Langfeld was discharged from the public defender’s office, there is no evidence that it was because of his work on Foster’s case.

             At Foster’s request, his postconviction counsel offered Niemi’s letter to the district court at the postconviction hearing, noting that it was “something that Mr. Foster has asked me to insert into the record, again in order to preserve any claims that he might have when it comes to [the] pro se supplemental phase of any appeal that may follow.”  The state offered in response a letter that the state contends Foster wrote, which instructed the recipient to tell “Amanda” to “write down what Todd said.”  Sustaining objections to both letters, the district court made them part of the court file.  Foster’s counsel then called two witnesses.  Thompson testified about Foster’s alibi in an evasive manner.  And when offering his testimony about Foster’s alibi, Douglas was so uncooperative that the district court discredited the testimony and held Douglas in contempt. 

            In sum, Foster has made no new claims of ineffective assistance of counsel against his trial counsel that would warrant relief.  And the record establishes that his postconviction counsel conducted a thorough investigation into Foster’s claims against his trial counsel, introduced alibi witnesses at the postconviction hearing, argued vigorously for relief on the basis of ineffective assistance of trial counsel, and was successful in getting Foster’s sentence reduced by 48 months.  Moreover, as the district court found, Foster’s claim of ineffective assistance of postconviction counsel fails because it is predicated on the meritless claim of ineffective assistance of trial counsel.  See Sutherlin v. State, 574 N.W.2d 428, 435 (Minn. 1998) (holding that because there was no merit to appellant’s claim that trial counsel provided ineffective assistance, appellate counsel did not provide ineffective assistance by deciding to not pursue issue).  Thus, Foster is not entitled to relief on his claims regarding either attorney.

B.

            As to Foster’s claim that his criminal-history score is erroneous, the record indicates that the weight to be given to his prior convictions and the alleged “Hernandez method” error were thoroughly addressed at his sentencing hearing.  Foster fails to establish how these alleged errors in the calculation of his criminal-history score affected his sentence.  Furthermore, in both his 2002 supplemental brief and his 2005 motion for correction of sentence, Foster’s counsel argued that Foster’s sentence was improper, but for reasons other than errors in the criminal-history score or the calculation method. 

C.

            Foster maintains that the district court abused its discretion in denying his request for an evidentiary hearing on the instant petition for postconviction relief.  But because the record conclusively shows that Foster is not entitled to relief, the district court’s summary denial of the petition without an evidentiary hearing was not an abuse of discretion.

II.

            Foster next argues that the district court abused its discretion in denying as untimely Foster’s motion to remove for cause.  “[T]here is no automatic removal as of right in a postconviction proceeding.”  Hooper v. State, 680 N.W.2d 89, 92 (Minn. 2004).  “No notice to remove shall be effective against a judge who has already presided at the trial . . . except upon an affirmative showing of cause on the part of the judge.”  Minn. R. Crim. P. 26.03, subd. 13(4).  Under Minnesota Rule of Criminal Procedure 26.03, subdivision 13(3), “cause” includes the grounds for disqualification under the Code of Judicial Conduct such as when “the judge’s impartiality might reasonably be questioned.”  Minn. Code Jud. Conduct, Canon 3D(1).  “A request to disqualify a judge for cause shall be heard and determined by the chief judge of the judicial district or the assistant chief judge if the chief judge is the subject of the request.”  Minn. R. Crim. P. 26.03, subd. 13(3).  We review a district court’s ruling on a motion to remove for cause for an abuse of discretion.  Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986), review denied (Minn. Aug. 20, 1986).

Foster filed his motion to remove Judge Pagliaccetti for cause on March 13, 2006, three days after the judge had summarily denied Foster’s petition.  Thus, Foster’s March 13 motion was untimely or, if not untimely, moot.  Had the motion been timely, it was without merit as it was based solely on a handwritten note in the public defender’s file, allegedly written by his postconviction counsel during a telephone conversation with Fred Friedman, the chief public defender of the Sixth Judicial District, which states: “Both [trial counsel] and judge told [Friedman] that alibi witnesses went to charges on which client wasn’t charged . . . .”  Foster claims that this notation indicates that the judge “lied” to Friedman and establishes grounds to reasonably question the judge’s impartiality.

But the record makes evident that Judge Pagliaccetti understood that the alibi witnesses were offered in defense of the first four counts of the complaint.  As the judge determined in the first postconviction order, “[Trial counsel] explained that the witnesses would establish an alibi for the offenses charged in Counts I, II, III, and IV.”  And even if the handwritten note accurately reflects the judge’s statement, Foster fails to show that the statement had any effect either on the judge’s reason for disallowing the alibi witnesses at trial, which was the late disclosure, or on the postconviction proceedings.  Because Foster failed to affirmatively demonstrate any bias, prejudice, partiality, or appearance of impropriety that would constitute cause for removal, and because “[t]he mere fact a judge presided at trial is not cause for removal in a postconviction proceeding,” denial of the motion was warranted.  Johnson v. State, 486 N.W.2d 825, 828 (Minn. App. 1992), review denied (Minn. Aug. 27, 1992). 

We observe, however, that rule 26.03, subdivision 13(3), provides that such a motion shall be heard by the chief judge or the assistant chief judge if the chief is the subject of the motion.  Therefore, a judge other than Judge Pagliaccetti should have ruled on the motion.  But because the motion was entirely without merit and “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded,” Minn. R. Crim. P. 31.01, Foster is not entitled to relief on this ground.

III.

            Foster also argues that the district court abused its discretion by failing to rule on the claim that the Department of Corrections (DOC) improperly extended Foster’s incarceration for a minor disciplinary offense by applying the “some evidence” standard rather than the preponderance-of-the-evidence standard.  See Carrillo v. Fabian, 701 N.W.2d 763, 777 (Minn. 2005) (holding that DOC must use preponderance-of-the-evidence standard in disciplinary proceedings).  This claim is not properly before us because the appropriate method for challenging a DOC disciplinary action that extends the period of incarceration is by writ of habeas corpus as provided in Minn. Stat. §§ 589.01-.35 (2006). 

            For all of the foregoing reasons, the district court did not abuse its discretion by summarily denying the petition for postconviction relief. 

Affirmed.