Andre Benjamin Stigger, M.C.F. - Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN 55767-9449 (appellant pro se)

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

Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig,, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.

Andre Benjamin Stigger appeals from the denial of his petition for postconviction relief, arguing he is entitled to an evidentiary hearing or relief from his conviction for first-degree criminal sexual conduct. We affirm.

(1) Ineffective assistance of trial counsel for failing to block the use of Spreigl evidence.

(2) The trial court erred in instructing the jury to continue deliberating when it notified the trial court it could not come to a unanimous verdict.

Stigger raised the same issues in his pro se brief.

This court affirmed the conviction, concluding that trial counsel was not ineffective and that the trial court did not abuse its discretion in instructing the jury. State v. Stigger, C7-94-2208, unpub. op. at 7, 9 (Minn. App. Sept. 26, 1995) (Stigger I), review denied (Minn. Nov. 15, 1995). This court also rejected Stigger's pro se arguments. Id., unpub. op. at 10.

Stigger then filed a petition for postconviction relief. The district court summarily denied Stigger's petition, concluding Stigger was barred from raising the issues in the postconviction proceeding because he raised or could have raised the issues in Stigger I. Stigger appeals.

A postconviction court may summarily deny a successive petition for similar relief where the issues raised have been previously decided in a direct appeal of the same case. Minn. Stat. § 590.04, subd. 3 (1996).

[W]here 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.

Dent v. State, 441 N.W.2d 497, 499 (Minn. 1989) (quoting State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)). The claims will not be considered unless the

claim is so novel that it can be said that its legal basis was not reasonably available to counsel at the time the direct appeal was taken and decided * * *.

Case v. State, 364 N.W.2d 797, 800 (Minn. 1985).

All of Stigger's claims were either known to him or should have been known before Stigger I. Because Stigger failed to raise any of the issues in Stigger I, he is barred from raising these issues in a subsequent postconviction proceeding.

2. Stigger also argues his appellate counsel in Stigger I provided ineffective assistance. For postconviction relief based on a claim of ineffective assistance of counsel

[t]he defendant must affirmatively prove that his counsel's representation 'fell below an objective standard of reasonableness' and 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). An attorney provides effective representation by "exercis[ing] the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances." Marhoun v. State, 451 N.W.2d 323, 328 (Minn. 1990) (quoting State v. Heinkel, 322 N.W.2d 322, 326 (Minn. 1982)).

First, Stigger argues appellate counsel was ineffective because he did not petition for postconviction relief before proceeding with a direct appeal. See Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (noting correct procedure for raising ineffectiveness of counsel argument is to file direct appeal and then move for dismissal, allowing for postconviction hearing). Stigger's argument fails because Stigger I addressed the ineffective assistance of trial counsel in the interests of judicial economy and concluded that Stigger did not make a showing of inadequate representation. Stigger I, unpub. op. at 7.

Second, Stigger claims appellate counsel was ineffective for failing to argue that the trial court erred in replaying certain portions of video testimony to the jury during deliberations without making a record. The trial court did replayed portions of video testimony to the jury without making a record of the replay or of its instructions to the jury before the replay.

A letter in Stigger's brief from his appellate counsel, however, indicates his appellate counsel knew of this issue, but chose not to raise it because: (1) the trial court has extremely broad discretion to allow a jury to review evidence; (2) the trial court's decision was reasonable because the video was of poor quality; and (3) it is hard to prove the replay was prejudicial when the jury has already seen the evidence during trial. Appellate counsel's reasons for not raising the issue were reasonable. Stigger has not made an adequate showing of ineffective appellate representation. Gates 398 N.W.2d at 561.

3. Stigger argues the district court erred in denying his request for appointment of a public defender to represent him in the postconviction proceeding. For postconviction proceedings, an indigent person may apply for a public defender "if the person has not already had a direct appeal of the conviction." Minn. Stat. § 590.05 (1996). The record shows Stigger was represented by a public defender for his direct appeal in Stigger I. The district court did not err in denying Stigger's request.

Affirmed.