                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2133

                               Maurice Level Ward, Sr.,
                                     Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                                Filed August 25, 2014
                                      Affirmed
                                    Reyes, Judge

                             Anoka County District Court
                               File No. 02CR101766

Maurice Level Ward, Sr., Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Anthony C. Palumbo, Anoka County Attorney, Marcy S. Crain, Assistant County
Attorney, Anoka, Minnesota (for respondent)

       Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and

Willis, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

REYES, Judge

       Appellant Maurice Level Ward, Sr., challenges the district court’s dismissal of his

second petition for postconviction relief, as well as its return of documents filed after the

dismissal and denial of his subsequent motions. We affirm.

                                          FACTS

       The following facts were recited by this court in Ward’s appeal from the denial of

his first postconviction petition:

                      In June 2010, a jury found Ward guilty of two counts
              of promotion of prostitution and one count of receiving profit
              derived from prostitution. The district court imposed
              concurrent sentences within the ranges prescribed by the
              sentencing guidelines. Ward filed a direct appeal, and we
              affirmed the convictions. State v. Ward, No. A10–2063, 2011
              WL 5829073 (Minn. App. Nov. 21, 2011), review
              denied (Minn. Jan. 17, 2012). The supreme court denied
              Ward’s petition for review.
                      Ward filed a petition for postconviction relief in
              district court in August 2012, appearing to argue that the
              promotion-of-prostitution statute violates equal protection and
              that his sentence is unlawful. The district court concluded
              that Ward was not entitled to an evidentiary hearing and
              dismissed his petition, finding that his postconviction
              arguments could have been made in his direct appeal and thus
              were barred by Minnesota[] Statute section 590.01,
              subdivision 1 (2012). Ward appealed.

Ward v. State, A12-1894, 2013 WL 2372177, at *1 (Minn. App. June 3, 2013), review

denied (Minn. Aug. 6, 2013). This court affirmed the first postconviction court’s

decision, id. at *2-3, and the supreme court denied Ward’s petition for further review.

Thereafter, Ward filed a second petition for postconviction relief.



                                              2
       In his second postconviction petition, Ward again raised the issue of equal

protection and seemed to argue that his due-process rights were violated by each state

court’s refusal to rule on his equal-protection argument. Additionally, he alleged that

both his trial and appellate counsel were ineffective for failing to raise his equal-

protection claim and that his appellate counsel was also ineffective for failing to raise an

ineffective-assistance-of-trial-counsel claim. The district court summarily denied Ward’s

second petition without an evidentiary hearing.

       Thereafter, Ward submitted several motions and documents to the court that

related to his petition, as well as a motion to remove the judge for bias. The chief judge

of the tenth judicial district wrote to Ward, explaining that he would not be taking any

action on Ward’s motion to remove because there were no issues pending before the

court. Additionally, the district court returned various filings to Ward. This appeal

followed. The day after Ward filed his appeal, the district court, seemingly unaware of

the appeal,1 filed another order providing additional detail as to its summary denial of

Ward’s petition and denying all of Ward’s subsequent motions.

                                      DECISION

I.     Denial of second petition for postconviction relief

       A postconviction court is required to hold an evidentiary hearing unless “the

petition and the files and records of the proceeding conclusively show that the petitioner


1
 The notice of case filing indicates that Ward did not provide proof of service of his
notice of appeal with the district court administrator as required by Minn. R. Crim. P.
28.02, subd. 4(1), and the notice of case filing issued by this court was received by the
district court on the same day that it issued its additional order.

                                              3
is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2012). A postconviction court

“may summarily deny a second or successive petition for similar relief on behalf of the

same petitioner and may summarily deny a petition when the issues raised in it have

previously been decided by the Court of Appeals or the Supreme Court in the same case.”

Minn. Stat. § 590.04, subd. 3 (2012). When “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.” State v. Knaffla, 309 Minn. 246, 252, 243

N.W.2d 737, 741 (1976). Knaffla also bars claims raised or known at the time of an

earlier petition for postconviction relief from being considered on subsequent petitions.

Wayne v. State, 601 N.W.2d 440, 441 (Minn. 1999). Claims are not barred under Knaffla

if (1) the claims are so novel that their legal bases were unavailable at the time of direct

appeal or (2) the claims are required to be addressed in the interest of fairness, unless the

petitioner deliberately and inexcusably failed to raise them on appeal. Ashby v. State, 752

N.W.2d 76, 78-79 (Minn. 2008).

       In summarily denying Ward’s petition, the district court determined that Ward’s

equal-protection and related claims were barred because they could have been raised on

direct appeal and had previously been decided by this court. The district court also stated

that Ward’s ineffective-assistance-of-counsel claims are barred by Knaffla because his

trial-counsel claim should have been raised on direct appeal and his appellate-counsel

claim should have been raised in his first petition for postconviction relief. A summary

denial of a postconviction petition is reviewed for an abuse of discretion. Nicks v. State,

831 N.W.2d 493, 503 (Minn. 2013). Likewise, a denial of postconviction relief based on


                                              4
the Knaffla procedural bar is reviewed for an abuse of discretion. Quick v. State, 692

N.W.2d 438, 439 (Minn. 2005).

       A.       Equal protection

       In his second petition for postconviction relief and on appeal, Ward argues that the

promotion-of-prostitution statute under which he was convicted has a disparate impact

because African American men are more likely to be charged under this statute, while

Caucasian men are more likely to be charged under the statute prohibiting patronizing

prostitution, which has a lesser punishment. Ward made this same argument in his first

petition for postconviction relief, and, on appeal from the denial of that petition, this

court stated,

                       [b]ecause Ward could have raised this argument in his
                direct appeal, it is barred by Knaffla and neither of the
                Knaffla exceptions applies. First, Ward’s equal-protection
                claim does not present a novel legal issue. . . . Second,
                postconviction relief is not necessary to satisfy the interests of
                fairness and justice because the claim lacks substantive merit.

Ward, 2013 WL 2372177, at *2 (citations omitted). This court went on to state,

“[B]ecause Ward has not met his burden to show a racially disparate impact, his equal-

protection argument lacks merit and is barred by Knaffla.” Id. Though Ward submitted

additional documentation purportedly supporting his claim, this court’s previous decision

on this issue bars reconsideration of Ward’s equal-protection argument under Minn. Stat.

§ 590.04, subd. 3.




                                                5
       B.     Due-process violation

       Ward also seems to argue that the state courts’ refusal to rule on his equal-

protection argument is a due-process violation because it prevents him from obtaining

federal habeas corpus review. Ward made this argument on appeal in his first petition for

postconviction relief. Ward, 2013 WL 2372177, at *3 n.2. This court determined that

Ward had waived this issue by failing to raise it in district court. Id. This claim is now

barred by Knaffla because it was known at the time of Ward’s earlier petition for

postconviction relief. While Ward argues that this issue “was not ripe” at the time of that

petition, this claim is based on the argument that the courts must reevaluate his equal-

protection claim in light of new evidence that he has submitted. We disagree.

       Moreover, neither Knaffla exception applies. Ward had a legal basis to make this

argument in his first postconviction petition but failed to do so. Case v. State, 364

N.W.2d 797, 800 (Minn. 1985) (“we hold that only where a 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 will postconviction relief be allowed.”). Additionally,

Ward’s due-process argument is premised on his equal-protection argument, which this

court already considered, and the supreme court declined to review. Because this court

will not reconsider issues already decided, Minn. R. App. P. 140.01, there is no relief

available to Ward. Therefore, his due-process claim has no substantive merit. See

Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005) (stating that claims decided in the

interests of fairness and justice must have substantive merit).




                                              6
       C.     Ineffective assistance of counsel

       “When a claim of ineffective assistance of trial counsel can be determined on the

basis of the trial record, the claim must be brought on direct appeal or it is Knaffla-

barred.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013). Ward’s assertion that his

appellate counsel was ineffective for failing to raise an ineffective-assistance-of-trial-

counsel claim is an acknowledgement that he knew of his trial-counsel claim at the time

of his direct appeal. Despite his appellate counsel’s refusal to raise this claim, Ward had

a right to file a pro se supplemental brief asserting this issue. Minn. R. Crim. P. 28.02,

subd. 5(17). Even if the district-court record was insufficient to bring his claim on direct

appeal, the appropriate time to do so was in his first petition for postconviction relief.

This claim is now barred by Knaffla.

       Likewise, Ward’s claim that his appellate counsel was ineffective stems from his

direct appeal. Ward knew or should have known of the grounds for this claim when he

first petitioned for postconviction relief and should have raised this claim at that time.

This claim is now barred by Knaffla.2

       Furthermore, neither Knaffla exception applies to Ward’s claims of ineffective

assistance of counsel. These claims do not present a novel legal issue, because any legal

basis for these claims was available to Ward during earlier proceedings. Moreover,

postconviction relief is not necessary for fairness and justice because there is no

2
 Ward claims that the state waived the argument that these claims are Knaffla-barred
because it did not raise this as an affirmative defense. But it is the petitioner’s burden to
show that he is entitled to relief in a postconviction proceeding, Anderson v. State, 806
N.W.2d 856, 859 (Minn. App. 2011), review denied (Minn. Jan. 17, 2012), not the state’s
burden to prove to the contrary.

                                              7
substantive merit to his claims. The decisions by his counsel not to raise the equal-

protection claim were tactical decisions, which this court will not review when evaluating

claims of ineffective assistance of counsel. See State v. Doppler, 590 N.W.2d 627, 633

(Minn. 1999) (stating that matters of trial strategy lie within the discretion of trial counsel

and will not be second-guessed by appellate courts); Case, 364 N.W.2d at 800 (stating

that “counsel has no duty to include claims which would detract from other more

meritorious issues.”). And appellate counsel need not raise all possible claims on appeal;

a claim need not be raised if “appellate counsel could have legitimately concluded that

[it] would not [prevail].” Schneider v. State, 725 N.W.2d 516, 523 (Minn. 2007).

       Because Ward was not entitled to relief on any of the grounds raised in his second

petition for postconviction relief, the district court did not abuse its discretion by denying

his petition without an evidentiary hearing.

II.    Return of documents and denial of motions

       Ward alleges that the district court erred by returning and refusing to file

documents he sent to the court. Such documents included an amended witness list, a

motion for court-appointed experts, a memorandum of law in support of his motion for an

evidentiary hearing, amended findings of fact, and various correspondences. Ward also

moved for removal of the presiding judge and seems to argue that the district court erred

by denying his motion to remove. The record shows that a number of documents were

returned to Ward because he submitted them after the district court denied his second

post-conviction petition. Likewise, the chief judge informed Ward that no action would

be taken because there was nothing pending before the presiding judge, who had already


                                               8
denied his second petition. Because the district court had already dismissed Ward’s

petition for postconviction relief,3 and the documents he submitted thereafter were related

to his petition, there was no further relief available to him. The district court did not err

by returning additional documents Ward submitted or by denying his subsequent

motions.

       Affirmed.




3
 Ward seems to contend that the denial of his postconviction petition did not occur until
November when the district court denied his subsequent motions. But the record clearly
shows that the district court summarily denied his petition in September 2013.

                                               9
