Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for Respondent)

Alan L. Mitchell, St. Louis County Attorney, Brian D. Simonson, Assistant County Attorney, 1810 East 12th Avenue, #107D, Hibbing, MN 55746 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

Pro se criminal appellant, Gary Neill Robinson, convicted of second-degree criminal sexual conduct, challenges the district court's basis for denying his second petition for postconviction relief. He also raises issues of ineffective assistance of trial and appellate counsel, prosecutorial misconduct, denial of proper appellate review, newly-discovered evidence, and several constitutional claims. Because the issues raised by appellant were either decided in a previous appeal or were known but not raised in previous appeals, we affirm.

Here, all of the claims appellant raises in this appeal were known and could have been raised in appellant's direct appeal or his first postconviction appeal. See Fox v. State, 474 N.W.2d 821, 824 (Minn. 1991) (matters raised or known in first postconviction appeal not considered in subsequent postconviction appeals). But see Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (matters known but not raised in direct appeal reviewed if "fairness so requires" and petition offers excuse for failure to raise matters in first appeal). Appellant offers no facts demonstrating that the issues he now raises merit consideration by this court. See id. at 484 (petitioner must present facts showing fairness requires court to consider issues known but not raised in earlier appeals); Fox, 474 N.W.2d at 825 (fairness required substantive review of postconviction petition where petitioner alleged inability to participate in trial defense due to prescribed anti-psychotic medication). Because appellant's claims of prosecutorial misconduct, ineffective assistance of trial counsel,[1] and other constitutional violations could have been raised in his earlier appeals, the trial court did not abuse its discretion in denying this petition for postconviction relief. See Russell v. State, ___ N.W.2d ___, ___ (Minn. May 1, 1997) (postconviction appeals reviewed under abuse of discretion standard).

While appellant could not have raised the claim of ineffective assistance of appellate counsel in his direct appeal, he could have done so in his first postconviction appeal. Id. at ___. Further, because appellant's claim of ineffective assistance of appellate counsel is "wholly unsubstantiated," he has failed to show that he is entitled to postconviction relief. See Hodgson v. State, 540 N.W.2d 515, 518 (Minn. 1995); see also Garasha v. State, 393 N.W.2d 20, 22 (Minn. App. 1986) ("right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal that the trial record supports").

Affirmed.

[ ]¹ A claim of ineffective assistance of trial counsel should be raised in a postconviction hearing to allow the court to review counsel's actions. See State v. Roby, 531 N.W.2d 482, 484 n.1 (Minn. 1995). As this is appellant's second postconviction appeal, appellant did have the opportunity to raise the issue in a postconviction proceeding.