                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A15-1205

Wright County                                                                   Wright, J.

Keith Richard Rossberg,

                      Appellant,

vs.                                                             Filed: February 10, 2016
                                                               Office of Appellate Courts
State of Minnesota,

                      Respondent.
                               ______________________


Keith Richard Rossberg, Stillwater, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Thomas N. Kelly, Wright County Attorney, Greg T. Kryzer, Assistant Wright County
Attorney, Buffalo, Minnesota, for respondent.

                                   ______________________


                                       SYLLABUS

       1.      The postconviction judge erred by ruling on appellant’s motion to

disqualify the postconviction judge for cause rather than referring the motion to the chief

judge of the judicial district.

       2.      The failure to refer appellant’s disqualification motion to the chief judge

was harmless in this case because the motion lacked merit.



                                             1
       3.     Because it is undisputed that appellant’s postconviction petition was

submitted to the court without factual support, the postconviction court did not abuse its

discretion by denying both appellant’s request for additional time to file an addendum to

the petition and appellant’s petition.

       Affirmed.

       Considered and decided by the court without oral argument.

                                         OPINION

WRIGHT, Justice.

       This appeal arises from appellant Keith Richard Rossberg’s petition for

postconviction relief. Rossberg challenges the denial of his motion to disqualify the

postconviction judge, the denial of his request for additional time to file an addendum to

his petition, and the denial of his petition. We conclude that the postconviction judge

erred by ruling on the disqualification motion rather than referring the motion to the chief

judge of the judicial district. The error was harmless, however, because Rossberg’s

motion failed to allege facts that supported disqualification. Because it is undisputed that

Rossberg’s postconviction petition was submitted without factual support, we further

conclude that the postconviction court did not abuse its discretion by denying both

Rossberg’s request for additional time to file an addendum and Rossberg’s petition. We

therefore affirm.




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                                            I.

      In 2013, a Wright County judge presided at Rossberg’s jury trial for the murder of

Devan Hawkinson.1 The jury found Rossberg guilty of first-degree premeditated murder,

Minn. Stat. § 609.185(a)(1) (2014).

      Rossberg appealed his conviction to our court. State v. Rossberg, 851 N.W.2d

609, 612 (Minn. 2014). In addition to raising arguments with the assistance of counsel,

see id. at 615, 617-19, Rossberg filed a supplemental pro se brief challenging his

conviction on several other grounds, id. at 619 & n.2.          We affirmed Rossberg’s

conviction in August 2014. Id. at 620. In reaching our decision, we declined to consider

Rossberg’s pro se claims because they “consist[ed] of factual assertions with no support

in the record and conclusory declarations detached from any legal reasoning.” Id. at 619-

20.

      In June 2015, Rossberg filed a pro se petition for postconviction relief in Wright

County District Court. See Minn. Stat. § 590.01, subd. 1 (2014). The petition raised

several legal claims without providing factual support for any of them.2         Rossberg


1
      We limit our discussion to the facts relevant to the present appeal. The facts of the
murder and Rossberg’s trial are set forth in State v. Rossberg, 851 N.W.2d 609, 612-15
(Minn. 2014).
2
        Over the course of two pages, the petition raised the following grounds for relief:
ineffective assistance of trial and appellate counsel; a violation of Rossberg’s Fifth
Amendment rights because of a prejudicial delay in bringing the indictment;
prosecutorial misconduct during opening statements, trial, and closing arguments;
“improper evidentiary rulings including violating [Rossberg’s] fast and speedy rights to
trial and allowing the convictions to stand on insufficient evidence gained by illegal
search of residence in which a weapon was obtained which couldn’t have been obtained
                                                        (Footnote continued on next page.)
                                            3
acknowledged that his petition was “submitted without factual support” and explained

that he was filing an incomplete petition in order to meet the deadline to toll the statute of

limitations for federal habeas relief.

       Rossberg separately moved for additional time to file an addendum that would

allege the necessary factual support for his petition. In support of his motion, Rossberg

claimed that he was “unable to procure proper time in the prison law library to research

his issues and to find the appropriate case law.” He requested 60 days to file the

addendum.

       The State opposed Rossberg’s petition for postconviction relief. Citing State v.

Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), the State argued that all of Rossberg’s

claims, except for ineffective assistance of appellate counsel, were procedurally barred

because Rossberg knew or should have known of the basis for his claims on direct

appeal. Additionally, the State contended that Rossberg failed to allege any facts in

support of his petition and that Rossberg abused the postconviction process by filing a

petition for the purpose of staying the statute of limitations for federal habeas relief. The

State also opposed Rossberg’s motion for additional time to file an addendum, arguing

that Rossberg had not provided a reasonable explanation for failing to allege the relevant

facts in his petition.


(Footnote continued from previous page.)
legally”; and prejudicial error in admitting hearsay testimony, Spreigl evidence, and
relationship evidence. The petition also alleged that exculpatory evidence was
improperly withheld at trial and that the district court judge erred by failing to recuse
herself at trial.

                                              4
       The same Wright County judge that had presided at Rossberg’s trial was assigned

to the postconviction proceeding. Rossberg moved to disqualify the postconviction judge

on two grounds.      Rossberg first argued that the postconviction judge should be

disqualified because she had presided at his trial.      Second, Rossberg alleged that

disqualification was warranted because the judge had “work[ed] . . . with the [district

attorney]’s office assisting in the investigation and charging [Rossberg] with

[Hawkinson’s] murder.” Rossberg claimed that the postconviction judge had violated

twelve rules of judicial conduct, but he did not allege any additional facts in support of

the judge’s alleged rule violations. The postconviction judge denied Rossberg’s motion,

explaining that Rossberg’s allegations regarding her former employment were factually

incorrect.3

       The postconviction court also denied Rossberg’s motion for additional time to file

an addendum. Citing Minn. Stat. § 590.03 (2014), the postconviction court concluded

3
        Additionally, the postconviction judge observed that Rossberg did not have an
automatic right to remove her from the proceeding. When addressing automatic removal,
the postconviction judge erroneously cited Minn. Stat. § 542.16, subd. 1 (2014), which
applies to civil matters. Because this is a criminal case, the postconviction judge should
have cited Minn. R. Crim. P. 26.03, subd. 14(4), which provides a peremptory right to
remove a judge without cause. See State v. Azure, 621 N.W.2d 721, 724 (Minn. 2001)
(holding that Minn. R. Crim. P. 26.03, not Minn. Stat. § 542.16, governs removal of a
judge from a criminal proceeding). Had the postconviction judge applied Minn. R. Crim.
P. 26.03, subd. 14(4), to the facts in this case, however, the result would have been the
same. Peremptory removal “is not effective against a judge who already presided at the
trial.” Minn. R. Crim. P. 26.03, subd. 14(4)(c). As we made clear in Hooper v. State,
“[a] postconviction proceeding is an extension of the criminal prosecution.” 680 N.W.2d
89, 92 (Minn. 2004). Thus, once the parties have appeared before the judge at trial,
“there is no automatic removal as of right in a [subsequent] postconviction proceeding.”
Id. Because Rossberg had appeared before the same judge at trial, disqualification for
cause was Rossberg’s only means to obtain a different postconviction judge. See id.

                                            5
that the decision to grant additional time to amend a petition is a matter of the court’s

discretion. The postconviction court reasoned that Rossberg’s limited access to the

prison law library did not adequately explain his failure to allege facts in support of his

petition.   The postconviction court subsequently denied Rossberg’s petition for

postconviction relief because most of his claims could have been raised on direct appeal,

Knaffla, 309 Minn. at 252, 243 N.W.2d at 741, and all of his claims lacked factual

support.

       Rossberg appeals the postconviction court’s denial of his petition for

postconviction relief, motion for additional time to file an addendum, and motion to

disqualify the postconviction judge.

                                              II.

                                              A.

       We first address the denial of Rossberg’s motion to disqualify the postconviction

judge, which we review for an abuse of discretion. See Hooper v. State, 838 N.W.2d

775, 790 (Minn. 2013). A party may “request to disqualify a judge for cause” if the

judge’s participation in the case would violate the Code of Judicial Conduct. Minn. R.

Crim. P. 26.03, subd. 14(3); In re Jacobs, 802 N.W.2d 748, 751 (Minn. 2011). Judicial

bias is a basis for disqualification. See Hooper v. State, 680 N.W.2d 89, 92 (Minn. 2004).

However, a petitioner’s subjective belief that the judge is biased does not necessarily

require disqualification. Id. at 93.

       A motion to disqualify a judge for cause “must be heard and determined by the

chief judge of the district or by the assistant chief judge if the chief judge is the subject of

                                               6
the [motion].” Minn. R. Crim. P. 26.03, subd. 14(3); see also State v. Finch, 865 N.W.2d

696, 701-02 (Minn. 2015) (analyzing the rule). Here, the postconviction judge erred by

failing to refer Rossberg’s motion to the Chief Judge of the Tenth Judicial District. See

Finch, 865 N.W.2d at 702. Having concluded that the postconviction judge erred, we

next consider whether the error was harmless. See id. at 703 (holding that a harmless

error standard of review applies to the failure to refer a disqualification motion to the

chief judge).

                                            B.

       Reversal is warranted if the postconviction judge’s failure to refer Rossberg’s

disqualification motion to the chief judge affected Rossberg’s “substantial right to a fair

hearing before a decision maker who does not appear to favor one side,” Finch, 865

N.W.2d at 703. In his motion to disqualify, Rossberg argued that the judge could not be

impartial in the postconviction proceeding for two reasons. First, the postconviction

judge had presided at Rossberg’s trial. Second, Rossberg alleged that the judge had been

employed by the Wright County Attorney’s Office when that office was investigating

Hawkinson’s murder.

       Rossberg’s first argument lacks merit.       A postconviction proceeding is an

extension of the criminal prosecution, and often the same judge that presided at trial also

presides at the postconviction proceeding. Cf. Hooper, 680 N.W.2d at 92-93 (explaining

that because the judge “had presided at trial . . . any subsequent postconviction

proceedings would likely be assigned to her”). This practice does not—by itself—

present an adequate ground for disqualification.

                                            7
       Rossberg’s second argument—that the postconviction judge had been involved in

the investigation of Hawkinson’s murder—is not supported by the record.              To the

contrary, the documents attached to Rossberg’s briefs establish that the postconviction

judge formerly served as an attorney for the cities of Annandale and Buffalo, not the

Wright County Attorney’s Office.

       Because Rossberg’s arguments plainly do not provide a basis for disqualification,

the postconviction judge’s failure to refer the motion to the Chief Judge of the Tenth

Judicial District did not affect Rossberg’s “substantial right to a fair hearing before a

decision maker who does not appear to favor one side.” See Finch, 865 N.W.2d at 703.

We, therefore, conclude that the failure to refer the disqualification motion to the chief

judge was harmless error.

                                            III.

       We next consider the postconviction court’s denial of Rossberg’s petition and his

motion for additional time to file an addendum to his petition, both of which are

analytically related.   In each instance, we apply an abuse-of-discretion standard of

review. See Matakis v. State, 862 N.W.2d 33, 36, 40-41 (Minn. 2015). Reversal is

warranted if the postconviction court “exercised its discretion in an arbitrary or capricious

manner, based its ruling on an erroneous view of the law, or made clearly erroneous

factual findings.” Id. at 36 (quoting Reed v. State, 793 N.W.2d 725, 729 (Minn. 2010)).

                                             A.

       A petition for postconviction relief must contain a statement of the facts, the

grounds on which the petition is based, and the relief sought. Minn. Stat. § 590.02,

                                             8
subd. 1(1) (2014).    “All grounds for relief must be stated in the petition or any

amendment thereof unless they could not reasonably have been set forth therein.” Id.4 It

is the petitioner’s burden to allege facts that entitle him to relief. Carridine v. State, 867

N.W.2d 488, 492 (Minn. 2015). Although a petition for postconviction relief is “liberally

construe[d],” when no facts are alleged in the petition, the postconviction court can only

conclude that the facts are undisputed. Matakis, 862 N.W.2d at 37. Unsupported claims

are forfeited and will not be considered “unless prejudicial error is obvious on mere

inspection.” Rossberg, 851 N.W.2d at 620 (quoting Kaehler v. Kaehler, 219 Minn. 536,

537, 18 N.W.2d 312, 313 (1945)).

       The postconviction court “may at any time prior to its decision on the merits

permit a withdrawal of the petition, may permit amendments thereto, and to the answer.”

Minn. Stat. § 590.03. But when a petition simply lists legal claims without alleging

supporting facts, a postconviction court does not abuse its discretion by denying the

petition without granting additional time to provide further documentation. Matakis, 862

N.W.2d at 39-41.

                                             B.

       Rossberg acknowledged in his postconviction petition that he did not include

factual support for the requested relief. Rossberg sought additional time to file an


4
       Rossberg disputes the postconviction court’s characterization of his motion as one
to amend his petition, rather than a motion for additional time to file an addendum. We
conclude that Rossberg’s motion was the functional equivalent of a motion to amend his
petition and, therefore, was subject to the provisions in Minn. Stat. §§ 590.02-.03 (2014)
regarding petition amendments.

                                              9
addendum because, he claimed, his access to the prison law library was limited. But the

postconviction relief statute requires the petition to include allegations of fact, not

citations to legal authority. See Minn. Stat. § 590.02, subd. 1(1). Rossberg has not

explained why he was unable to state the facts underlying his claims. Accordingly, the

postconviction court did not abuse its discretion by denying Rossberg’s motion for

additional time to file an addendum.

       For the same reason, we affirm the postconviction court’s denial of Rossberg’s

petition. Because Rossberg’s postconviction petition consisted of conclusory allegations

without factual support, the petition failed to satisfy the requirements of the

postconviction statute. See id. Moreover, our review of the record has not disclosed any

facts that support Rossberg’s claims. Therefore, the postconviction court’s denial of

Rossberg’s petition was not an abuse of discretion.

                                            V.

       In summary, the postconviction judge erred by failing to refer to the Chief Judge

of the Tenth Judicial District Rossberg’s motion to disqualify. This error was harmless,

however, because Rossberg’s arguments in support of his motion plainly lacked

merit. Also, because Rossberg failed to allege any facts in support of his postconviction

claims, the postconviction court did not abuse its discretion by denying Rossberg’s

petition for postconviction relief and motion for additional time to file an addendum.

       Affirmed.




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