Jeffrey C. Morris, petitioner, Appellant, vs. State of Minnesota, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-683 A04-725

 

Jeffrey C. Morris, petitioner,
Appellant,
 
vs.
 
State of Minnesota,
Respondent.

 

Filed September 21, 2004

Affirmed

Minge, Judge

 

Dakota County District Court

File No. K4-01-1837

 

 

Jeffrey C. Morris, Minnesota Correctional Facility, 7600 525th Street, Rush City, MN 55069 (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, Phillip D. Prokopowicz, Chief Deputy, Amy A. Schaffer, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for respondent)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant challenges the district court's denial of his petitions for postconviction relief, arguing that he is entitled to relief on various grounds, including a claim that he was denied effective assistance of counsel.  Because appellant was aware of his claims at the time of his direct appeal and because appellant did not meet his burden of proving ineffective assistance of counsel, we affirm.

FACTS

 

On October 19, 2001, appellant Jeffrey C.  Morris was convicted of four counts of harassment and one count of impersonating a police officer.  The convictions were based on a series of incidents in which appellant, after having been arrested by Officer J.C.B, sent sexual postcards to J.C.B.'s residence and workplace; called J.C.B.'s residence and told J.C.B.'s wife that he obtained their unlisted telephone number by pretending he was a friend of J.C.B.; and, while pretending to be a police officer, contacted and informed local businesses that J.C.B. was a child molester.  Appellant had been previously convicted for similar behavior towards prison guards, judges, a security-company officer, and another police officer, resulting in a criminal history score of eight.  At sentencing, the district court found that appellant was a dangerous repeat offender under Minn. Stat. § 609.1095 (2000) and sentenced him to an executed, upward double departure of 102 months.

            Appellant directly appealed his conviction with the assistance of the public defender's office, claiming that the evidence was insufficient to support the findings of the district court and that the district court abused its discretion by imposing an upward double durational departure.  Appellant also filed numerous pro se briefs raising several additional claims.  In State v. Morris, No. C8-02-434 (Minn. App. Feb. 4, 2003),this court affirmed appellant's conviction and sentence and found that his pro se arguments were without merit.  Appellant petitioned the Minnesota Supreme Court for further review and his petition was denied.  Appellant then filed petitions for postconviction relief, arguing that he was entitled to relief on various grounds, including that he was denied effective assistance of counsel.  The district court denied appellant's petitions without an evidentiary hearing, determining that all of appellant's claims had been raised or addressed in appellant's direct appeal and that appellant failed to meet his burden in proving ineffective assistance of counsel.  Appellant now challenges the district court's order denying postconviction relief.

D E C I S I O N

 

This court reviews a district court's denial of a petition for postconviction relief under an abuse-of-discretion standard.  Sessions v. State, 666 N.W.2d 718, 721 (Minn. 2003).  Upon a petition for postconviction relief, the district court must schedule a hearing unless the petition, files, and record conclusively show that the petitioner is entitled to no relief.  Minn. Stat. § 590.04, subd. 1 (2002). 

 

I.

 

In appellant's first postconviction petition, he argues that he was entitled to relief on nine different grounds.  The general rule is that no matters raised in a prior direct appeal or known to the defendant, but not raised at the time of the appeal, will not be considered in a subsequent postconviction relief proceeding.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  The district court found all of appellant's nine claims were either previously raised by appellant in his direct appeal or known to him at that time. 

Appellant's nine grounds include claims that (1) absent a showing of actual malice, making false allegations against a police officer is protected by the First Amendment; (2) locating and revealing to the public the address of a police officer is protected by the First Amendment; (3) "[a]ttacking the sovereign position of a police officer . . . is protected by the First Amendment unless there is a clear and present danger to the enforcement of the law;" and (4) his threat "to get back" at a police officer is protected by the First Amendment.  The record clearly shows that these arguments were raised or otherwise clearly known to appellant when he filed his direct appeal.  He made numerous motions to the district court at sentencing to dismiss his charges based on these claims, he made these arguments at sentencing, and he further argued these issues in his direct appeal.

Appellant's fifth ground for relief is that he did not use a wrongful mode of speech in any of his telephone calls or postcards sent to the victim's home.  Appellant also knew of this claim at the time of his direct appeal.  He specifically argued this claim in his "Supplementary Motion to Dismiss All Charges" submitted to the district court at the time of his trial. 

            Appellant's sixth ground for relief is his claim that the statute under which he was convicted, Minn. Stat. § 609.749 (2000), is unconstitutionally vague, overbroad, and fails to give the public fair and adequate notice of the proscribed conduct.  That this due-process argument was clearly known to appellant at the time of his direct appeal is shown by his assertion of the claim at sentencing.  Appellant further raised this claim in his direct appeal.[1]

            Appellant's seventh claim is that, in the absence of a true-threat requirement for a pattern of harassing conduct, Minn. Stat. § 609.749, subd. 5(a), leads to a grave danger of implicating constitutionally protected speech.  In his eighth claim, appellant argues that without a due-process provision, Minn. Stat. § 609.749 violates the First, Sixth, and Fourteenth Amendments to the United States Constitution.  While the record does not clearly indicate that appellant made these exact arguments to this court on direct appeal, the language of these claims is very similar to his other constitutional claims.  In any event, appellant knew of these claims at the time of his appeal because he made other constitutional arguments regarding the same statute.  The record does not show an intervening event suggesting that appellant would be justified in claiming that he was not aware of these claims at the time of his direct appeal.

            In his final claim, appellant argues that the district court abused its discretion in imposing a sentence that was an upward double departure from the sentencing guidelines.  Appellant, with the assistance of the public defender's office, raised this issue in his direct appeal.  This court considered the issue and affirmed appellant's sentence. 

            The Minnesota Supreme Court enumerated three exceptions to the general rule that matters raised or known to appellant at the time of direct appeal are barred from consideration of postconviction relief.  Ives v. State, 655 N.W.2d 633, 636 (Minn. 2003).  These exceptions are if: (1) additional fact-finding is required to fairly address a claim of ineffective assistance of counsel; (2) a novel legal issue is presented; or (3) the interests of justice require relief.  Id.  Appellant makes no claim, and the record does not indicate, that these exceptions apply.  We therefore determine that the district court did not abuse its discretion in denying appellant's petition without an evidentiary hearing.[2]

II.

Appellant filed a second petition for postconviction relief, arguing that he was denied effective assistance of counsel.  To be entitled to an evidentiary hearing on such a claim, appellant "must allege facts which, if proved, would affirmatively show that his attorney's representation fell below an objective standard of reasonableness, and that but for the errors, the result would have been different."  Wilson v. State, 582 N.W.2d 882, 885 (Minn. 1998).  "There is a strong presumption that a counsel's performance falls within the wide range of reasonable professional assistance."  Id. (quotations omitted).

Appellant argues that his counsel was ineffective for failing to argue that Minn. Stat. § 609.749 is vague and overbroad.  Appellant must first show that his attorney's failure to present such an argument to this court on direct appeal fell below an objective standard of reasonableness.  See id.  The Minnesota Supreme Court has stated "that counsel appealing a criminal conviction has no duty to raise all possible issues.  It is well established that an appellate counsel has no duty to include claims which would detract from other more meritorious issues."  Id. at 886 (quotation omitted).  In appellant's direct appeal, his attorney raised multiple issues, including the sufficiency of the evidence of many of the findings of the district court and the length of his sentence.  Further, appellant raised this vagueness/overbreadth issue in his many pro se briefs submitted in his direct appeal.  He fails to provide a credible argument why his attorney should have raised this argument.

Appellant further fails to meet the second burden of showing that, but for the alleged errors, the results of his case would have been different.  See id. at 885.  Appellant presented a due-process argument to this court on appeal, and this court concluded that appellant's argument was without merit.  Such an argument mirrors or is functionally the same as the vagueness and overbreadth argument.  Because that argument was considered and rejected, it is extremely improbable that the outcome would have been different had his attorney presented the issue.  Regardless, appellant cites no credible authority and offers no credible legal analysis to support his argument in his brief or reply brief.  Therefore, the district court did not abuse its discretion in finding that appellant did not meet the two-prong test required in a claim of ineffective assistance of counsel.

III.

After this case was submitted, appellant submitted a letter in accordance to Minn. R. Civ. P. 128.05 advising this court of the United States Supreme Court's decision in Blakely v. Washington, 124 S. Ct. 2531 (2004).  Blakely, which is based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), addressed the Washington sentencing statute and held that factors resulting in upward sentencing departures must be found by a jury absent an admission or waiver.  Blakely, 124 S. Ct. at 2537-38, 2541.  The Minnesota Supreme Court has stated that "if a case is pending on direct review when a new rule of federal constitutional criminal procedure is announced, a criminal defendant is entitled to benefit from that new rule."  O'Meara v. State, 679 N.W.2d 334, 336 (Minn. 2004).  "[A] case is pending until such time as the availability of appeal has been exhausted, the time for a petition for certiorari has elapsed or a petition for certiorari with the Supreme Court has been filed and finally denied."  Id. at 339.   This court has also held that Apprendi does not apply retroactively on collateral review, including petitions for postconviction relief.  State v. Meemken, 662 N.W.2d 146, 150 (Minn. App. 2003).  Because appellant directly appealed his case and petitioned for further review with the supreme court by April 2003, his case was final when Blakely was issued.  Absent authority that Blakely applies to cases that were final when it was issued, we do not address this issue.[3]

Affirmed.

 

Dated:

[1] After this court deliberated on appellant's petition and before this decision was released, appellant submitted a reference to supplemental authorities pursuant to Minn. R. Civ. App. P. 128.05.  These authorities are: Snell v. Lockhart, 14 F.3d 1289, 1298-99 (8th Cir. 1994); Rust v. Hopkins, 984 F.2d 1486, 1491 (8th Cir. 1993), cert. denied, 508 U.S. 967 (1993); McDougald v. Lockhart, 942 F.2d 508, 510 (8th Cir. 1991); Gonzalez v. Sullivan, 934 F.2d 419 (2nd Cir. 1991); Tart v. Massachusetts, 949 F.2d 490, 494 (1st Cir. 1989); Williams v. Lord, 996 F.2d 1481, 1483 (2nd Cir. 1993).  They address general due-process issues.  We note that these cases were decided in 1994 or earlier and that they were known to appellant or could have been discovered with reasonable diligence by appellant at the time of his direct appeal.  Rule 128.05 does not authorize submissions in this circumstance.  See Minn. R. Civ. App. P. 128.05 2000 advisory comm. cmt.  In any event, after reviewing the cases cited by appellant, we conclude that they do not indicate that the statutes under which he was convicted were unconstitutional or that earlier consideration and disposition of his petitions was improper.

 

[2] In his reply brief, appellant additionally argues that this court and the Minnesota Supreme Court erred by not providing more reasoned opinions and claims error in a federal proceeding.  Appellant cites no credible legal authority to support these arguments.  Further, these new claims are outside the issues raised by respondent in its brief.  See Minn. R. Civ. App. P. 128.02, subd. 3 ("The reply brief must be confined to new matter raised in the brief of the respondent.").

[3] Appellant in another filing of a supplemental authority cited this court's recent decision of State v. Whitley, 682 N.W.2d 691 (Minn. App. 2004).  Whitley applies the rule stated in this decision and remands a case that was on direct appeal at the time Blakely was decided.  Whitley does not support relief in appellant's situation.