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STATE OF MINNESOTA IN SUPREME COURT A07-2370 Ramsey County Anderson, Paul H., J.

Harold A. Gustafson, petitioner, Appellant, vs. State of Minnesota, Respondent. Filed: August 7, 2008 Office of Appellate Courts

S Y LL A B U S Petitioner's claim that he has newly-discovered evidence showing that a State witness provided false testimony at trial is barred by State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), because the evidence was available at the time of petitioner's direct appeal. The postconviction court properly denied petitioner's claim for relief based on the assertion that a State witness provided false testimony at trial because petitioner failed to allege facts sufficient to entitle him to relief. The postconviction court properly denied petitioner's claim for relief based on the assertion that the State made a secret deal with a witness in order to obtain testimony against petitioner because petitioner failed to provide factual support for his claim. Petitioner's claim that the State made a secret deal with a second witness in order
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to obtain testimony against petitioner is barred by Knaffla because the evidence supporting the claim was available to petitioner at the time of his direct appeal. Petitioner, who is presently incarcerated in a Nevada prison, is not entitled to appointed counsel in these postconviction proceedings because he has already had a direct appeal and a prior postconviction proceeding. Affirmed. Considered and decided by the court without oral argument. OPINION ANDERSON, Paul H., Justice. Harold Gustafson was convicted of two counts of first-degree murder for his participation in the 1982 shooting of Saint Paul Police Officer Richard Walton. State v. Gustafson, 379 N.W.2d 81, 83 (Minn. 1985). Gustafson filed a direct appeal, and we affirmed his conviction. Id. at 85. Gustafson subsequently filed a petition for

postconviction relief. Gustafson v. State, 47 N.W.2d 709, 713 (Minn. 1991). After a hearing, the postconviction court denied relief, and we affirmed. Gustafson then filed a second petition for postconviction relief, which the postconviction court denied without a hearing. Gustafson now appeals the second postconviction court's denial of relief. We affirm. On Sunday, October 24, 1982, three armed men wearing ski masks attempted to rob the pharmacy at Mounds Park Hospital in Saint Paul.1 Shortly after the robbers

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A more detailed version of the facts can be found in this court's opinions in Gustafson v. State, 477 N.W.2d 709 (Minn. 1991) and State v. Hathaway, 379 N.W.2d (Footnote continued on next page.)
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entered the pharmacy, the hospital switchboard operator received a call for help and Richard Walton--an off-duty Saint Paul police officer and hospital security guard-- responded to the call. When Walton arrived at the pharmacy, there was an exchange of gunshots between Walton and one of the robbers, during which Walton was wounded in the head. The three robbers then fled the scene without completing the robbery. Twelve hours later, Walton died from the gunshot wound to his head. Two days later, the police received a tip from a citizen informant that a man named Timothy Eling was connected to Walton's shooting, and that a man named William Dwyer had specific knowledge of the crime. The police subsequently arrested Dwyer. Following his arrest, Dwyer told the police that he and two other men--Guy Hathaway and petitioner Harold Gustafson--planned to rob the hospital pharmacy on October 22, but called off the robbery after arriving at the pharmacy because too many people were present. Dwyer also described the weapons and car used in that aborted robbery attempt. The next day, October 27, the police arrested Eling and took him to the hospital for treatment of two gunshot wounds to his lower right leg. On November 19, George Leslie contacted the Saint Paul Police Department. Leslie told the police that he was supposed to participate in the robbery of the hospital pharmacy on October 24, with Eling, Hathaway, and Gustafson. Leslie said that he did not participate in the robbery

(Footnote continued from previous page.) 498 (Minn. 1985) (affirming the conviction of Gustafson's co-defendant--Guy Hathaway).
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because he changed his mind at the last minute and did not meet the three men at the agreed-upon time. Eling was subsequently indicted for the first-degree murder of Walton, found guilty, convicted, and sentenced to life in prison. We affirmed his conviction on direct appeal. State v. Eling, 355 N.W.2d 286, 295 (Minn. 1984). Hathaway and Gustafson fled the state, but they were arrested by FBI agents in California nearly 2 years after the murder. Both men were charged with first-degree murder, felony murder, and conspiracy to commit aggravated robbery. The State moved for a joint trial of Hathaway and Gustafson, and the district court granted the motion. At Gustafson and Hathaway's trial, Leslie and Dwyer testified for the State. Dwyer testified that he, Eling, Hathaway, and Gustafson had a friend purchase a car to use in the robbery. He went on to describe the October 22 aborted robbery attempt. Dwyer also testified that he and a friend--Johnny Johnson--were in Wisconsin on October 24, the day of the robbery/murder. According to Dwyer, he and Johnson went to a prison in Wisconsin around 1:00 p.m. or 2:00 p.m. that day to visit a friend of Johnson's. After about an hour at the prison, the two men drove to Mel's Midtowner Bar in River Falls, Wisconsin. Dwyer testified that he and Johnson drank at Mel's bar and a bar across the street until 11:00 p.m. or 11:30 p.m. that night. Leslie testified that on the day of the robbery/murder, he, Eling, Hathaway, and Gustafson discussed how they were going to rob the pharmacy. According to Leslie, the four men planned to meet at 7:00 p.m. to carry out the robbery. But Leslie testified that he did not meet the men because he felt the robbery was too risky.
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Eling testified on behalf of the defendants, stating that on October 24, he attempted to rob the pharmacy with Leslie and Dwyer, not Hathaway and Gustafson. Neither Gustafson nor Hathaway testified at their trial. The jury found both Gustafson and Hathaway guilty of two counts of first-degree murder and one count of conspiracy to commit aggravated robbery. The district court convicted both men of first-degree murder and sentenced them to life in prison. Gustafson filed a direct appeal, arguing that (1) the court improperly joined his trial with Hathaway's trial; (2) Minn. R. Crim. P. 9.01, subd. 3(3) violated his right to obtain disclosure information and exculpatory evidence from the State; (3) law enforcement's use of photo displays violated his due process rights; and (4) the evidence was insufficient to convict him of the offenses for which he was charged. We affirmed Gustafson's conviction. Gustafson, 379 N.W.2d at 85. Gustafson subsequently filed a petition for postconviction relief, claiming that he received ineffective assistance of trial counsel and that he was denied conflict-free counsel because his attorney agreed to share investigative duties with Hathaway's attorney. After a hearing, the postconviction court denied relief, and we affirmed.

Gustafson, 477 N.W.2d at 713. Sixteen years after we denied his first postconviction petition, Gustafson, who is now imprisoned in Nevada, filed the current petition for postconviction relief.2

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Under Minn. Stat.

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