James Allan Riley, petitioner, Appellant, vs. State of Minnesota, Respondent.

James Allan Riley, petitioner, Appellant, vs. State of Minnesota, Respondent. A04-1915, Court of Appeals Unpublished, July 26, 2005.

This opinion will be unpublished and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

A04-1915

 

 

James Allan Riley, petitioner,

Appellant,

 

vs.

 

State of Minnesota,

Respondent.

 

 

Filed July 26, 2005

Affirmed

Robert H. Schumacher, Judge

 

Isanti County District Court

File No. K495695

 

 

James Allan Riley, 13240 Union Terrace Lane North, Champlin, MN 55316 (pro se appellant)

 

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

 

Jeffrey R. Edblad, Isanti County Attorney, 555 18th Avenue Southwest, Cambridge, MN 55008 (for respondent)

 

 

            Considered and decided by Peterson, Presiding Judge; Schumacher, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

James Allan Riley appeals from the district court's order summarily denying his petition for postconviction relief.  The petition challenges his 1998 convictions of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct.  We affirm.

FACTS

After a five-day jury trial in 1998, a jury found Riley guilty of two counts of first-degree criminal sexual conduct and two counts of second-degree criminal sexual conduct.  In 1999, Riley appealed directly from the convictions, raising 12 issues, which included the claim that the district court erred in awarding restitution.  This court reversed a part of the restitution award and affirmed on all other issues.  State v. Riley, No. C6-98-1169 (Minn. App. April 13, 1999).  In 2004, Riley petitioned the district court for postconviction relief.

D E C I S I O N

1.         Riley contends the chief judge erred in denying his request to remove the trial judge from the postconviction proceeding.  To remove a trial judge from a subsequent postconviction proceeding, a party must make an affirmative showing that the judge is disqualified under the Code of Judicial Conduct.  Minn. R. Crim. P. 26.03, subd. 13; Hooper v. State, 680 N.W.2d 89, 92 (Minn. 2004); see also Minn. Code Jud. Conduct Canon 3.D(1) (requiring judge disqualify herself or himself when "judge's impartiality might reasonably be questioned").  Under rule 26.03, a litigant does not have to show actual bias but only that a judge's impartiality might reasonably be questioned.  Hooper, 680 N.W.2d at 93.  A judge should not be removed, however, simply because a litigant subjectively believes that the judge is biased.  Id.  The denial of a motion to remove for cause is reviewed under an abuse-of-discretion standard.  Id.

Before the district court, Riley argued that he "believes" the trial judge was biased against him because the judge also presided over a child protection matter involving Riley's stepson, whom Riley maintained throughout the trial was the perpetrator of the crimes charged against him.  We have held that a trial judge's impartiality when considering a suppression motion related to a search warrant is not reasonably questioned by the mere fact that the judge previously issued the warrant.  State v. Poole, 472 N.W.2d 195, 196-97 (Minn. App. 1991).  Similarly, the mere fact that the trial judge here was also the judge that presided over a child protection matter involving Riley's stepson does not disqualify the judge from presiding over Riley's postconviction petition.  It was not an abuse of discretion for the district court to deny Riley's request to remove the trial judge from the postconviction proceeding.

2.         Riley contends he was improperly denied assistance of counsel in bringing his postconviction petition.  After providing representation in a direct appeal, the state public defender may, but is not required to, provide counsel to an indigent petitioner in a later postconviction proceeding.  Minn. Stat. § 590.05 (2004) (stating, "state public defender shall represent [an indigent person], if the person has not already had a direct appeal of the conviction" and "may represent, without charge, all other persons pursuing a postconviction remedy"); Gibson v. State, 569 N.W.2d 421, 423 (Minn. App. 1997), review denied (Minn. Oct. 31, 1997).  Riley was represented in his direct appeal by the state public defender.  The state public defender was under no obligation to represent him in the postconviction proceeding.

3.         Riley also contends the district court erred in denying his postconviction petition without granting him an "evidentiary" hearing.  Generally, a postconviction court need not grant a hearing when the "petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief."  Minn. Stat. §  590.04, subd. 1 (2004).  When there has been a direct appeal, "all matters raised therein, and all claims known but not raised, will not be considered upon a subsequent petition for postconviction relief."  Gassler v. State, 590 N.W.2d 769, 771 (Minn. 1999) (citing State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976)).

Exceptions to the rule exist where the claim is novel and the legal basis was unavailable at the time of direct appeal, or fairness requires consideration of the claim and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.  Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997).  This court will not disturb the decision of a postconviction court absent an abuse of discretion.  State v. Kelly, 535 N.W.2d 345, 347 (Minn. 1995).

First, Riley raises a constitutional challenge to Minn. Stat. § 611 A. 033 (1998), which provides for a victim's right to a speedy trial.  This challenge was raised on direct appeal and is procedurally barred under Knaffla.

Second, Riley argues the district court erred in failing "to investigate into a source of conflict of interest between [Riley] and [the] public defender's office."  This claim is a reformulation of issues raised by Riley on direct appeal, including that the district court erred in denying his request for a continuance from the start of his second trial, in dismissing private counsel involuntarily, and in scheduling a new trial too soon after the mistrial.  To the extent the issue is not a reformulation of previously raised claims, it is not novel and there is no reason excusing Riley from raising it on direct appeal.  This claim is procedurally barred under Knaffla.

            Third, Riley argues he received ineffective assistance of counsel.  The Knaffla rule applies to ineffective assistance of counsel claims unless an evidentiary hearing is necessary to develop additional facts to explain the attorney's decisions.  Black v. State, 560 N.W.2d 83, 85 n.1 (Minn. 1997).  Riley argues that his counsel was not prepared for trial and failed to call necessary witnesses.  But on this record and as presented by Riley, these claims do not require additional fact finding and are therefore procedurally barred under Knaffla.  Compare Duke v. State, 621 N.W.2d 246, 255 (Minn. 2001) (concluding claim was not Knaffla-barred when evidentiary hearing was required to establish whether appellant had consented to attorney's decision to concede appellant's guilt), with Robinson v. State, 567 N.W.2d 491, 494-95 (Minn. 1997) (concluding all but two of petitioner's ineffective assistance of counsel claims were Knaffla-barred because the claims involved issues of trial strategy, while claims involving client-attorney communication required evidentiary hearing).

4.         Finally, Riley contends he is entitled to a new trial because of newly discovered evidence.  In order to be granted a new trial based on newly discovered evidence, Riley bears the burden of proving that he did not know of the evidence at trial, his failure to discover it was not due to a lack of diligence, the evidence is material, and the evidence would probably produce a more favorable result for him on retrial.  Race v. State, 504 N.W.2d 214, 217 (Minn. 1993).  The decision to grant a new trial based on newly discovered evidence rests solely within the trial court's discretion; we will not reverse absent an abuse of discretion.  Id.

Riley argues the following newly discovered evidence entitles him to a new trial: (1) evidence of his former wife's allegations of sexual abuse that she brought against Riley prior to trial, (2) evidence of his former wife's drug addiction, "which led her to rehab prior to this case," and (3) evidence that prior to Riley's trial the trial judge presided over a child protection matter involving Riley's step-son.  All of this evidence was either known by Riley or available to him prior to trial, and Riley does not demonstrate that his failure to discover this evidence was not due to lack of diligence.

Riley also argues a report produced in a guardianship matter involving Riley's son that took place after Riley's trial entitles him to a new trial.  Since the report does not state that his son is in need of ongoing medical treatment, Riley argues his son must not have been sexually abused.  At best this evidence would amount to impeachment of his son's videotaped statement that was admitted at trial.  As such, the evidence is not material and does not entitle Riley to a new trial.  See id. (explaining material evidence is "not impeaching, cumulative or doubtful" evidence).

Affirmed.