This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-871

Eric Roberts, petitioner,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed November 25, 1997

Affirmed

Schumacher, Judge

Ramsey County District Court

File No. K9942559

Eric L. Roberts, M.C.F. - St. Cloud, Box B, St. Cloud, MN 55379 (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, Darrell C. Hill, Assistant County Attorney, 50 Kellogg Boulevard West, Suite 315, St. Paul, MN 55102 (for respondent)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Eric Roberts appeals from the denial of his petition for postconviction relief, arguing he is entitled to an evidentiary hearing. We affirm.

FACTS

Roberts was sentenced to 200 months for attempted first degree murder and a consecutive sentence of 86 months for kidnapping. Roberts filed a direct appeal, arguing the trial court erred in admitting evidence and in sentencing. This court affirmed Roberts's conviction, but remanded for resentencing after concluding the trial court erred in imposing the consecutive sentence. State v. Roberts, No. CX-95-818 (Minn. App. Mar. 12, 1996) (Roberts I).

Before Roberts was resentenced, he filed a pro se petition for postconviction relief, claiming ineffective assistance of counsel and that the jury heard perjured testimony. The trial court denied Roberts's petition. Roberts appeals.

D E C I S I O N

1. Roberts argues he is entitled to a postconviction evidentiary hearing to develop the record regarding his claims of ineffective assistance of trial counsel and perjury. We disagree. The record shows Roberts was represented by court-appointed counsel at resentencing. When the trial court asked Roberts's counsel whether Roberts was requesting an evidentiary hearing, counsel said no. Moreover, in a subsequent letter to the trial court, Roberts's counsel again reiterated Roberts was "not requesting an evidentiary hearing." We conclude Roberts waived his right to an evidentiary hearing.

2. We also conclude that Roberts is barred from raising the ineffectiveness of trial counsel and perjury issues in his postconviction petition because he failed to raise these issues in his direct appeal in Roberts I.

After a direct appeal, all issues raised 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) (citing 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).

A letter in Robert's brief indicates he discussed raising the ineffectiveness of trial counsel issue with his appellate counsel during his appeal in Roberts I, but then failed to do so. See Harris v. State, 470 N.W.2d 167, 169 (Minn. App. 1991) (correct procedure for raising ineffectiveness of counsel issue is to file direct appeal, then move for dismissal to allow evidentiary hearing). Moreover, Roberts's perjury issue is not so novel that he would not have known about it before filing Roberts I.

Affirmed.