This opinion will be unpublished and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

A06-1258

 

Darwin Ray Battle-Bey, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

 

Filed August 14, 2007

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. 91-2843 (5127529)

 

Darwin Ray Battle-Bey, #100344 MCF-Stillwater, 970 Pickett Street North, Bayport, MN  55003-1490 (pro se appellant)

 

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

 

Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, 50 West Kellogg Boulevard, Suite 315, St. Paul, MN  55102-1657 (for respondent)

 

            Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

 

PETERSON, Judge

            Pro se appellant Darwin Ray Battle-Bey challenges a district court order that summarily denied his second petition for postconviction relief.  We affirm.

FACTS

            A jury found appellant guilty of second-degree intentional murder and second-degree felony murder.  The district court sentenced appellant on the intentional-murder count to 480 months in prison, which is the statutory maximum sentence and an upward departure from the presumptive sentence of 406 months.  On direct appeal, this court affirmed appellant’s conviction and sentence.  State v. Battle, No. C6-92-1076, 1993 WL 121269 (Minn. App. Apr. 20, 1993), review denied (Minn. May 20, 1993).

            Appellant filed his first petition for postconviction relief in 1996.  The district court summarily denied relief.  Appellant attempted to appeal the denial of relief, and this court dismissed the appeal for noncompliance with procedural rules.  This court dismissed a second attempted appeal as untimely.  Appellant also filed a federal habeas petition, which was denied as untimely.

            Appellant filed the current postconviction petition in February 2005.  By order filed May 11, 2006, the district court summarily denied relief.  This appeal followed.

D E C I S I O N

            “A petition for postconviction relief is a collateral attack on a judgment which carries a presumption of regularity and which, therefore, cannot be lightly set aside.”  Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002).  “The decisions of a postconviction court will not be disturbed unless the court abused its discretion.”  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001).

            “The court may summarily deny 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 (2006).  And “where 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 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).  “Similarly, 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.”  Spears v. State, 725 N.W.2d 696, 700 (Minn. 2006).   

            With one exception, all of the claims raised by appellant in the current postconviction proceeding involve alleged errors that occurred during trial or during direct appeal.  These claims were or should have been known at the time of appellant’s direct appeal or his first postconviction proceeding.  Appellant has not presented any evidence or legal authority that would justify applying an exception to the Knaffla rule.  See Spears, 725 N.W.2d at 700 (discussing exceptions to Knaffla rule).  Therefore, these claims are barred under Knaffla and Spears. 

            The one claim that is not barred under Knaffla and Spears is a claim of newly discovered evidence. “[A]n evidentiary hearing is not required unless facts are alleged which, if proved, would entitle a petitioner to the requested relief.  The petitioner’s allegations must be more than argumentative assertions without factual support.”  Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quotations omitted).

            Appellant’s newly discovered evidence claim is based on allegations in the affidavit of Jason Mann, which appellant attached to his petition.  But although Mann’s signature appears on the affidavit in a statement that declares that the affidavit is true and correct, the affidavit does not indicate that Mann signed the affidavit in the presence of a notarial officer.  Instead, beneath Mann’s declaration there is a statement that the affidavit was prepared by appellant.  This statement contains appellant’s signature, and in the middle of the statement there is a notary stamp and the signature of a notary public, which suggests that it is appellant’s signature, rather than Mann’s, that the notary is acknowledging.  Also, Mann’s declaration states that Mann signed the affidavit on May 21, 2003, and the statement that the affidavit was prepared by appellant states that appellant prepared the affidavit on February 2, 2005.  The placement of the notary’s stamp and signature and the statement that Mann signed the affidavit almost two years before appellant prepared the affidavit are not sufficient to establish the authenticity of the affidavit.  See Minn. R. Evid. 902(8) (extrinsic evidence of authenticity is not required with respect to documents accompanied by certificate of acknowledgment executed in manner provided by law by notary public); Minn. Stat. § 358.42(a) (2006) (in taking acknowledgment notarial officer must determine from personal knowledge or satisfactory evidence that person appearing before officer and making acknowledgment is person whose true signature is on the instrument); Minn. Stat. § 358.47(b)(4) (2006) (certificate of notarial act is sufficient if it “sets forth the actions of the notarial officer and those actions are sufficient to meet the requirements of the designated notarial act”).  Accordingly, there is not factual support for appellant’s assertions about newly discovered evidence, and the district court did not abuse its discretion in not considering the newly discovered evidence claim.

            The district court did not abuse its discretion in summarily denying appellant’s postconviction petition.

            Affirmed.