Larry Michael Adams, petitioner, Appellant, vs. State of Minnesota, Respondent.

Larry Michael Adams, petitioner, Appellant, vs. State of Minnesota, Respondent. A04-1780, Court of Appeals Unpublished, March 29, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1780

 

Larry Michael Adams, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

Filed March 29, 2005

Affirmed Willis, Judge

 

Dakota County District Court

File No. K6-98-2654

 

 

Larry Michael Adams, ID # 203648, MCF/Moose Lake, 1000 Lakeshore Drive, Moose Lake, MN  55767-9449 (pro se appellant)

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN  55033 (for respondent)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant argues that the district court erred by denying his postconviction petition to correct his sentence.  Because the holding in Blakely v. Washington, 124 S. Ct. 2531 (2004), on which appellant bases his argument, does not apply retroactively and is, therefore, not applicable to appellant, we affirm.

FACTS

            Appellant Larry Michael Adams, also known as Larry Michael Haller, was charged with first-degree criminal sexual conduct, in violation of Minn. Stat. § 609.342, subds. 1(a), 2 (1998), for sexually abusing his stepson.  On June 24, 1999, a jury found Adams guilty of this charge.  In September 1999, Adams was sentenced to an executed sentence of 147 months, with five years of conditional release.  The sentence was an upward durational departure from the presumptive guidelines sentence of 98 months.

            Adams appealed his conviction and sentence, and in an unpublished decision, this court affirmed both.  State v. Adams, No. C4-99-2167 (Minn. App. Dec. 5, 2000).The Minnesota Supreme Court denied Adams's petition for review on January 16, 2001.  Adams did not file a petition for a writ of certiorari to the United States Supreme Court.

            In May 2001, Adams filed a petition for a writ of habeas corpus to the United States District Court.  This writ was denied on October 15, 2001, and the Eighth Circuit Court of Appeals dismissed Adams's appeal of the denial on May 2, 2002.

            On August 4, 2004, Adams filed a petition for postconviction relief, seeking resentencing in light of the United States Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  The district court denied Adams's petition because direct review of Adams's case was final when Blakely was decided and because it determined that Blakely did not apply retroactively.  This appeal follows.

D E C I S I O N

            Adams argues that the district court erred by denying his postconviction request for resentencing because Blakely v. Washington, 124 S. Ct. 2531 (2004), should be given retroactive effect in his collateral attack.  He argues that because his sentence was not final when the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), and because Blakely was a further extension of the Apprendi holding, he is entitled to the benefits of Blakely.

            This court recently addressed this issue in State v. Houston, 689 N.W.2d 556 (Minn. App. 2004), review granted (Minn. Jan. 20, 2005).  In Houston, the appellant was sentenced after Apprendi was decided, and this court determined that Blakely was not "dictated" by the holding of Apprendi.  Id. at 558-59.  This court noted that Blakely does not fall within the exceptions to the general rule of prospective application because it does not affect the scope of government power to proscribe crime and because it is not a watershed rule of criminal procedure.  Id. at 560.  Therefore, this court held that Blakely is not subject to retroactive application on collateral review.  Id.

            If Adams's case was final when Blakely was decided, the benefit of its rule is inapplicable here.  "A case is final when a ‘judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari [has] elapsed or a petition for certiorari [has been filed and] finally denied.'" O'Meara v. State, 679 N.W.2d 334, 339 (Minn. 2004) (alteration in original) (quoting Griffith v. Kentucky, 479 U.S. 314, 321 n.6, 107 S. Ct. 708, 712 n.6 (1987)).  Blakely was decided on June 24, 2004.  Adams's conviction was final on April 16, 2001, 90 days after the Minnesota Supreme Court denied review of his appeal.  See Sup. Ct. R. 13 (noting that a petition for a writ of certiorari to the United States Supreme Court in a criminal matter must be filed within 90 days after entry of judgment from a state court of last resort).  Therefore, Adams's conviction was final when Blakely was decided, and he is not entitled to application of the rule established in Blakely. 

            Affirmed.