                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A15-1386


                           Brett Thomas Green, petitioner,
                                     Appellant,

                                         vs.

                                 State of Minnesota,
                                    Respondent.


                                Filed April 11, 2016
                                     Affirmed
                                Smith, John, Judge


                             Isanti County District Court
                               File No. 30-CR-08-1174

Brett Thomas Green, Rush City, Minnesota (pro se appellant)

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

Jeffrey Edblad, Isanti County Attorney, Scott A. Hersey, Special Assistant County
Attorney, St. Paul, Minnesota (for respondent)

      Considered and decided by Cleary, Chief Judge; Rodenberg, Judge; and Smith,

John, Judge.




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                        UNPUBLISHED OPINION

SMITH, JOHN, Judge

      We affirm the district court’s order summarily denying appellant Brett Thomas

Green’s postconviction petition and his motion for correction of his sentence because his

petition is Knaffla-barred and the district court properly calculated his jail credit when

appellant was resentenced.

                                        FACTS

      Green was found guilty of criminal sexual conduct in the first, third, and fourth

degrees in August 2010. Green was sentenced to 153 months in prison and a lifetime period

of conditional release. Green filed a direct appeal, arguing that Spreigl evidence was

improperly admitted, there was insufficient evidence to support his conviction, the

prosecutor engaged in misconduct, and several other claims that this court concluded were

meritless. State v. Green, No. A11-850, 2012 WL 1470164 (Minn. App. Apr. 30, 2012)

(Green I). We affirmed Green’s conviction in an unpublished opinion. Id.

      Green subsequently filed numerous petitions for postconviction relief from

September 2012 to February 2014. Collectively, those petitions raised arguments for

sentence modification, manifest injustice based upon credibility of trial witnesses and

actual innocence, sufficiency of the evidence, prosecutorial misconduct, newly discovered

evidence, ineffective assistance of trial and appellate counsel, and multiple requests for

appointment of counsel. The district court denied Green’s motions on various grounds,

noting that the claims brought by Green were barred by State v. Knaffla, 309 Minn. 246,

243 N.W.2d 737 (1976), and Minn. Stat. § 590.01, subd. 1(2) (2012). The district court


                                            2
also denied Green’s requests for appointment of counsel because the direct appeal had

already occurred. Minn. Stat. § 590.05 (2012).

       On March 27, 2014, Green filed his second appeal challenging the denial of several

of his petitions for postconviction relief. Green v. State, No. A14-0613, 2015 WL 46502

(Minn. App. Jan. 5, 2015) (Green II), review denied (Minn. Mar. 17, 2015). We affirmed,

stating that the issues raised by Green were barred by Knaffla and that Green failed to

provide a factual or legal basis for the relief requested. Id. at *3. Additionally, we

considered and rejected Green’s argument that he received ineffective assistance of

appellate counsel. Id. at *2.

       In October 2014, Green filed multiple petitions for postconviction relief, raising the

same issues that had been rejected by both this court and the district court. The district

court again denied Green’s motions. In a separate file, 30-CR-07-71, the district court

granted Green’s request to withdraw his guilty plea. Because the conviction in that file

was used as a basis for Green’s criminal-history score for sentencing in the present case,

the district court ordered that the matter be scheduled for resentencing, and appointed

counsel for Green on that issue.

       On April 15, 2015, the district court resentenced Green to 144 months with a

conditional-release term of 10 years and credit for 2,344 days spent in custody. Green filed

additional petitions for postconviction relief, raising the same previous claims, and again

requested appointment of counsel. The district court denied the petitions on the basis that

Green’s claims were barred by Knaffla, Minn. Stat. § 590.01, subd. 1(2), and that the prior

order appointing counsel for purposes of resentencing had been fulfilled.


                                             3
         In July 2015, Green filed two motions. The first motion requested the district court

to recalculate his jail credit and reconsider its decision not to impose a downward departure.

The second motion requested postconviction relief based upon the same claims that had

been rejected multiple times. The district court denied Green’s motion for a corrected

sentence, holding that the time spent in jail for which Green sought credit was served prior

to the date the state acquired probable cause on the present offense. The court refused to

consider Green’s request to reconsider the downward departure as untimely because it was

filed while direct appellate review was still available. Finally, the district court summarily

denied Green’s petition for postconviction relief on the grounds that it reiterated his

previous postconviction filings and offered no new basis for review. Green appeals.

                                       DECISION

I.       The district court did not abuse its discretion when it summarily denied
         Green’s postconviction petition.

         “A petition for postconviction relief after a direct appeal has been completed may

not be based on grounds that could have been raised on direct appeal of the conviction or

sentence.” Minn. Stat. § 590.01, subd. 1 (2014). Once a direct appeal has been taken, all

matters raised and all claims known but not raised, will not be considered upon a

subsequent petition for postconviction relief. Knaffla, 309 Minn. at 252, 243 N.W.2d at

741. Two exceptions to the Knaffla rule apply when: (1) a novel issue has been raised or

(2) the interests of justice require review. Carridine v. State, 867 N.W.2d 488, 493 (Minn.

2015).




                                              4
       A postconviction court may summarily deny a successive petition for

postconviction relief if the issues raised in the petition have been previously decided by the

court of appeals or the supreme court in the same case. Minn. Stat. § 590.04, subd. 3

(2014). An evidentiary hearing is required if the petitioner alleges facts that, if proven by

a preponderance of the evidence, would entitle him to the requested relief. Roby v. State,

547 N.W.2d 354, 356 (Minn. 1996). “The petitioner’s allegations must be more than

argumentative assertions without factual support.” Hodgson v. State, 540 N.W.2d 515, 517

(Minn. 1995) (quotation omitted). A summary denial of a postconviction petition is

reviewed for an abuse of discretion. State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013).

We review issues of law de novo and factual findings for sufficiency of the evidence

supporting them. Id.

       Knaffla Rule

       Green argues that the district court abused its discretion when it summarily denied

his petition for postconviction relief. We disagree. Green has filed numerous petitions for

postconviction relief and has now filed three separate appeals. In his most recent petition

for relief, which is the subject of this appeal, Green raises the issues of ineffective

assistance of trial and appellate counsel, sufficiency of the evidence, prosecutorial

misconduct, and credibility of the trial witnesses. The district court denied Green’s petition

with respect to these issues, noting that his requests “essentially reiterate his previous

multiple postconviction challenges and present no new evidence or other substantive basis

for review.” In fact, all of these issues, except for the claims of ineffective assistance of

counsel, were raised and rejected in Green’s first appeal. See Green I, 2012 WL 1470164,


                                              5
at *4-5. Because Green does not assert that the claim of ineffective assistance of trial

counsel required examination of evidence outside of the trial record, that claim would have

been available to him on direct appeal. Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013)

(“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.”).

Additionally, Green’s assertion that he received ineffective assistance of appellate counsel

with respect to his first appeal was raised and rejected in Green’s second appeal. Green II,

2015 WL 46502, at *2. Because the assertions made by Green were raised on direct appeal,

could have been raised on direct appeal, or have subsequently been decided by this court,

we conclude that they are now procedurally barred. Minn. Stat. § 590.04, subd. 3; Knaffla,

309 Minn. at 252, 243 N.W.2d at 741.

       Exceptions to the Knaffla Rule

       Green argues that even if he is procedurally barred under Knaffla, his arguments

satisfy the exceptions to the Knaffla rule and should be considered by this court. We are

not persuaded. To be eligible for relief under an exception to the Knaffla rule, Green would

have to raise an issue that is “so novel that its legal basis was not reasonably available at

the time of the direct appeal” or requires review in the interests of justice and the failure to

raise the issue on direct appeal was not deliberate and inexcusable. Carridine, 867 N.W.2d

at 493 (quotation omitted).

       Here, Green argues that he has raised novel issues of sufficiency of the evidence,

ineffective assistance of trial and appellate counsel, actual innocence, and prosecutorial

misconduct. There is nothing novel about these claims. With the exception of the claim


                                               6
of ineffective assistance of appellate counsel, all of the issues asserted by Green were raised

or could have been raised on direct appeal. And the issue of ineffective assistance of

appellate counsel was addressed in Green’s second appeal. Green II, 2015 WL 46502, at

*2. Green argues that review is required in the interests of justice because any issues not

raised on direct appeal were excusable on the grounds that his appellate counsel “raised

only one issue, which was completely moot, without legal grounds.” But this issue was

addressed in Green’s second appeal, when we held that Green failed to demonstrate how

any of the claims not raised by his appellate counsel had merit or would have altered the

outcome of his direct appeal. Id. (citing Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009)

(noting that counsel does not act unreasonably by not asserting claims that counsel could

have legitimately concluded would not prevail)). Further, we noted that Green filed

supplemental pro se briefs on direct appeal but failed to offer a reason for why those briefs

did not include the issues that were later raised in his successive postconviction petitions.

Id. This same reasoning applies to this appeal, and exemplifies why Green’s arguments

fail to satisfy either exception to the Knaffla rule.

       Appointment of Counsel

       Finally, Green argues that the Knaffla rule should not apply because he was not

appointed counsel in accordance with the district court’s January 20, 2015 order. The

district court’s order granted Green’s request for appointment of counsel and stated that the

matter was to be scheduled to address sentencing issues presented by Green’s plea

withdrawal in file 30-CR-07-71. By Green’s own admission, he was represented by




                                               7
counsel at the April 15, 2015 sentencing hearing. Therefore, the district court’s order was

fulfilled.

       Green asserts that aside from the issue of sentencing, he was entitled to appointment

of counsel to address the other issues raised in his successive postconviction petitions. An

indigent person who desires to pursue postconviction relief may apply for representation

by the state public defender. Minn. Stat. § 590.05 (2014). And the state public defender

shall represent such an individual if the person has not already had a direct appeal of the

conviction. Id. Here, because Green already had a direct appeal of his conviction, he is

not entitled to representation to pursue the other issues raised in his postconviction

petitions.

       Green’s arguments are procedurally barred under Knaffla and Minn. Stat. § 590.01,

subd. 1(2), he does not satisfy either exception to the Knaffla rule, and he is not entitled to

counsel to address the issues raised in his successive postconviction petitions. Therefore,

the district court did not abuse its discretion by summarily denying Green’s petition.

II.    The district court did not miscalculate Green’s jail credit.

       When pronouncing the sentence of an individual, the court must “[s]tate the number

of days spent in custody in connection with the offense or behavioral incident being

sentenced.” Minn. R. Crim. P. 27.03, subd. 4(B). “That credit must be deducted from the

sentence and term of imprisonment and must include time spent in custody from a prior

stay of imposition or execution of sentence.” Id. Jail credit shall be awarded for time in

custody after the date when “(1) the [s]tate has completed its investigation in a manner that

does not suggest manipulation by the [s]tate, and (2) the [s]tate has probable cause and


                                              8
sufficient evidence to prosecute its case against the defendant with a reasonable likelihood

of actually convicting the defendant.” State v. Clarkin, 817 N.W.2d 678, 689 (Minn. 2012).

       “The defendant has the burden of establishing that he is entitled to jail credit for any

specific period of time.” Id. at 687. Awarding jail credit is a mixed question of fact and

law. Id. We review the district court’s factual findings concerning jail credit for clear

error, then apply the rules of law to those circumstances under the de novo standard. Id.

“The sentencing court does not have discretion in awarding jail credit.” Id.

       Credit from Prior Conviction

       Green argues that he is entitled to jail credit for time spent in custody on a previous

conviction in file 30-CR-07-71. Green acknowledges that he was incarcerated for his

conviction in file 30-CR-07-71 from January 19, 2007 until April 25, 2007, and again from

February 7, 2008 until July 4, 2008. The complaint and amended complaints in the present

file allege that the current offenses occurred on or about August 7, 2008. When Green was

resentenced, the court awarded credit for any time in custody dating back to August 7,

2008. Because the present offense occurred after Green’s release from incarceration on

file 30-CR-07-71, he was not entitled to credit for time spent in custody on that file.

Therefore, the district court did not err.

       Calculation of Jail Credit

       Green also argues that the jail credit for time spent in custody on this file was

miscalculated. “[A] criminal defendant at sentencing shall get credit for time spent in jail

in connection with the criminal charges.” State v. Johnson, 744 N.W.2d 376, 379 (Minn.

2008). Jail credit is applied by subtracting the credit from the specified minimum term of


                                              9
imprisonment of the imposed sentence.         Minn. Sent. Guidelines 3.C.2.a.      Here, the

presentence investigation shows that Green was incarcerated on this file from October 3,

2008 until July 12, 2010, and from August 24, 2010 until March 12, 2015. This amounts

to 2,310 days spent in custody. At sentencing, the court awarded Green credit for these

days, plus credit for the time spent in custody from March 13, 2015 until the sentencing on

April 15, 2015, for a total of 2,344 days of jail credit. Green asserts that on top of the 791

days actually served in custody from October 3, 2008 to July 12, 2010 1 and August 24,

2010 to January 13, 2011, he is entitled to an additional 264 days (one-third of 791) of

good time earned. But if Green received good time credit for one-third of the time spent

in custody in addition to one-third of the total executed prison sentence, he would

improperly receive double credit. Therefore, Green is not entitled to the additional 264

days of credit he requests. We conclude that the district court did not miscalculate his jail

credit.

          Downward Departure

          Green also alludes to challenging the denial of a downward departure, but fails to

adequately brief this argument. This issue is therefore waived. State v. Butcher, 563

N.W.2d 776, 780 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997). We also note

that the district court properly refused to consider this argument because Green’s

postconviction petition was filed on July 8, 2015, during a time when direct appellate



1
  Green’s brief uses the date of July 4, 3010, which appears to be a typographical error. In
his postconviction petition he uses the date July 12, 2010, which is consistent with the date
in the presentence investigation.

                                              10
review was available. See Minn. Stat. § 590.01, subd. 1 (stating that a person may petition

for postconviction relief except when direct appellate review is available). Additionally, it

would now be improper for this court to consider this argument because Green filed his

notice of appeal on August 21, 2015, more than 90 days after the sentencing order was

issued on April 15, 2015. See Minn. R. Crim. P. 28.02, subd. 4(3)(a) (“[A]n appeal by the

defendant must be filed within 90 days after final judgment or entry of the order being

appealed.”); State v. Hughes, 758 N.W.2d 577, 580 (Minn. 2008) (“The 90-day appeal

period for direct appeals begins to run upon entry of a final judgment, which occurs when

there is a judgment of conviction . . . and [a] sentence is imposed . . . .” (alterations in

original) (quotations omitted)). But because the time frame for appeal on this issue has

now concluded, Green could now raise this issue in a separate postconviction petition.

       We conclude that the district court did not err when resentencing Green because the

jail credit was properly calculated and his challenge to the denial of a downward departure

was untimely.

       Affirmed.




                                             11
