                          This opinion will be unpublished and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
                                   A13-2332, A13-2413

                             John Patrick Murphy, petitioner,
                                        Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed August 25, 2014
                                        Affirmed
                                      Smith, Judge

                               Ramsey County District Court
                                File No. 62-K2-93-001209

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

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

John Choi, Ramsey County Attorney, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean E. Burdorf, J. Michael
Richardson, Assistant County Attorneys, Minneapolis, Minnesota (for respondent)

       Considered and decided by Smith, Presiding Judge; Halbrooks, Judge; and

Hudson, Judge.

                         UNPUBLISHED OPINION

SMITH, Judge

       We affirm the district court’s denial of appellant’s postconviction petition and

motion for recusal because the district court did not abuse its discretion.
                                         FACTS

       In May 2006, the district court revoked appellant John Patrick Murphy’s

remaining probation and executed all of his remaining sentences, committing him to

prison for a total of 330 months. Murphy appealed, and we affirmed. State v. Murphy,

No. A06-1471, 2007 WL 4390348, at *6 (Minn. App. Dec. 18, 2007), review denied

(Minn. Feb. 27, 2008). Murphy then petitioned the district court for postconviction relief.

He also moved for recusal of the district court judge. In October 2013, the district court

summarily denied Murphy’s postconviction-relief petition and his motion for recusal.

The chief judge of the judicial district where the district court judge sits also considered

and denied the recusal motion. Murphy appealed the denial of postconviction relief

through counsel. Acting pro se, he appealed the district court’s denial of his recusal

motion in a separate appeal. We ordered the two appeals consolidated and construed

Murphy’s pro se brief in the recusal matter as a supplement to the appeal filed by counsel

in the postconviction-relief matter. Murphy v. State, No. A13-2332, A13-2413 (Minn.

App. Apr. 25, 2014) (order).

                                     DECISION

                                             I.

       “When reviewing a postconviction court’s decision, we examine only whether the

postconviction court’s findings are supported by sufficient evidence. We will reverse a

decision of the postconviction court only if that court abused its discretion.” Lussier v.

State, 821 N.W.2d 581, 588 (Minn. 2012) (quotation omitted). A summary denial of a

postconviction petition is reviewed for an abuse of discretion.        State v. Nicks, 831


                                             2
N.W.2d 493, 503 (Minn. 2013). 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 is entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2012). “An

evidentiary hearing upon a petition for postconviction relief is not required unless the

petitioner alleges such facts which, if proved by a fair preponderance of the evidence,

would entitle him or her to the requested relief.” Roby v. State, 547 N.W.2d 354, 356

(Minn. 1996). The allegations “must be more than argumentative assertions without

factual support.”   Hodgson v. State, 540 N.W.2d 515, 517 (Minn. 1995) (quotation

omitted).

      In his postconviction-relief petition, Murphy argued that his executed sentences

should be stayed and probation reinstated because “the allegations against him in the

North Dakota Courts, which [is] the underlying basis for his probation revocation in this

matter, have been dismissed with prejudice.” As exhibits, Murphy attached copies of two

motions filed in a North Dakota district court. One is a motion to dismiss a charge of

false report to law enforcement. The other is a motion to dismiss a charge of theft by

deception. Both motions were granted. Murphy asserted that he is “entitled to a new

probation revocation hearing and/or resentencing in light of [this] newly discovered

evidence that all charges against him in North Dakota . . . were dismissed with

prejudice.”

      The district court rejected Murphy’s argument, reasoning that the probation

violation was not because Murphy had been convicted of an offense. Rather, it was

because Murphy had failed to inform his probation officer that he had been arrested and


                                            3
that he had convicted of fleeing a police officer in addition to failing to maintain contact

with his probation officer after his inadvertent release. The district court concluded that

Murphy “has been unable to establish, even by the bare allegations in his petition, any

facts that would be legally sufficient, if proven by a fair preponderance of the evidence,

to entitle [him to] relief” and denied Murphy’s petition without further hearing.

       For Murphy to be entitled to a hearing on his postconviction petition, he would

need to allege facts sufficient to show that he would be entitled to the relief requested and

then prove those facts. See id. Murphy has failed to do so for three reasons. First, the

prompt reporting of an arrest—regardless of whether it leads to a conviction or even

being charged—was a condition of his probation. Murphy does not dispute that he failed

to report his North Dakota arrests. Second, Murphy was also required to report any

convictions, and does not dispute that he failed to report the North Dakota conviction for

fleeing a police officer. Third, Murphy does not dispute the district court’s finding that

he failed to keep in contact with his probation officer after he was inadvertently released.

Any one of these violations is sufficient to support a revocation decision. See State v.

Austin, 295 N.W.2d 246, 250 (Minn. 1980) (requiring only a single willful violation of

the terms of probation).

       Even if Murphy’s probation could be revoked only if he was convicted of one of

the North Dakota offenses, the record still supports the probation revocation because it

shows that Murphy was in fact convicted of fleeing a police officer. The two motions

granted by the North Dakota court dismissed only two of the charges. Nothing in the

record shows that his conviction for fleeing a police officer has been reversed, vacated, or


                                             4
otherwise modified.     Therefore, the district court did not abuse its discretion by

summarily denying Murphy’s postconviction petition.

                                            II.

       Murphy’s pro se brief, which states a single legal issue, includes two questions:

(1) should the district court judge have recused himself based on bias and partiality and

(2) should the judge have referred the recusal motion to the chief judge. “A request to

disqualify a judge for cause must be heard and determined by the chief judge of the

district . . . .” Minn. R. Crim. P. 26.03, subd. 14 (3). Although the answer to the second

question is yes, this question is moot because the chief judge considered and denied

Murphy’s recusal motion.      The district court notified Murphy of the chief judge’s

decision and filed a copy of the chief judge’s order with this court. To forestall further

litigation over the chief judge’s denial of the recusal motion, we include the chief judge’s

order in the scope of our review. We have the authority to do so under Minn. R. Crim. P.

28.01, subd. 2 (providing that “the Minnesota Rules of Civil Appellate Procedure govern

[criminal] appellate procedure unless these rules direct otherwise”), and Minn. R. Civ.

App. P. 103.04 (permitting us to “review any other matter as the interest of justice may

require”).

       Denial of a recusal motion is within the district court’s discretion and should not

be reversed absent a clear abuse of discretion. Carlson v. Carlson, 390 N.W.2d 780, 785

(Minn. App. 1986), review denied (Minn. Aug. 20, 1986). A litigant may disqualify a

judge as a matter of right by making a motion before the judge presides at a trial or

hearing in the matter, but otherwise, removal motions must be supported by an


                                             5
affirmative showing of prejudice. Minn. Stat. § 542.16 (2012). “A judge must not

preside at a trial or other proceeding if disqualified under the Code of Judicial Conduct.”

Minn. R. Crim. P. 26.03, subd. 14 (3). Under rule 2.11 of the Code of Judicial Conduct, a

judge “shall disqualify himself or herself in any proceeding in which the judge’s

impartiality might reasonably be questioned, including [when] [t]he judge has a personal

bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts

that are in dispute in the proceeding.”

       Murphy argues that his recusal motion should have been granted because the

district court judge’s impartiality might reasonably be questioned.          Murphy asserts,

among other things, that the district court judge “imposed a strict screening process” to

prevent him from filing papers with the court administrator.           This allegation is an

apparent reference to the process imposed by a 2003 order designating Murphy as a

frivolous litigant. That order is not in the record, but the district court judge referenced it

in the cover letter accompanying the order denying the recusal motion. Murphy also

asserts that the district court judge ignored evidence of ex-parte communications

involving a different judge formerly assigned to the case and justices of the Minnesota

Supreme Court, but he points to no evidence of the alleged communications. He refers to

unidentified “people in the ‘criminal justice system’ who . . . were appalled by the rulings

and sentences handed down . . . in this case” and asserts that these people “volunteered

information” to him, which he included in the affidavit he filed with his recusal motion.

That affidavit consists of a string of assertions of improper conduct and statements of

legal authority unsupported by objective facts.          Murphy’s appellate counsel also


                                              6
addressed the recusal motions in a reply brief, asserting that the district court judge could

only be considered unbiased “if one ignores any common sense or reasonable

understanding of human nature.” But the only evidence of bias the reply brief points to is

that the district court judge “has denied motion after motion.”

       In his order denying the recusal motion, the district court judge detailed steps he

had taken to avoid the possibility of bias: he intentionally avoided reading the underlying

complaint so that he could make decisions without knowing who Murphy’s victims were,

and had based his decisions on facts raised by Murphy. The chief judge’s order simply

states that Murphy “has failed to sufficiently demonstrate that [the district court judge’s]

impartiality might be reasonably questioned in this matter.”

       We conclude that Murphy’s motion for recusal, and his appellate claims regarding

recusal, are based not on specific instances of questionable judicial conduct, but on

unfavorable judicial rulings. Adverse rulings do not support a recusal motion. Greer v.

State, 673 N.W.2d 151, 157 (Minn. 2004). Neither the district court nor the chief judge

of the district court erred by denying the recusal motion.

       Affirmed.




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