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STATE OF MINNESOTA IN SUPREME COURT A09-1466 Hennepin County Dietzen, J.

Michael Calvin Francis, petitioner, Appellant, vs. State of Minnesota, Respondent. ________________________ Gary R. Wolf, Minneapolis, Minnesota, for appellant. Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, Minnesota, for respondent. ________________________ Filed: May 13, 2010 Office of Appellate Courts

SYLLABUS 1. When a defendant waives the right to an attorney on appeal and proceeds

pro se, the defendant is barred from later claiming that the first appeal was not meaningful because he did not receive the benefit of appellate counsel. 2. The district court did not abuse its discretion in concluding that the claims

raised in defendants second petition for postconviction relief were procedurally barred

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because they were raised in defendants direct appeal and first petition for postconviction relief. Affirmed. Considered and decided by the court without oral argument. OPINION DIETZEN, Justice. After a jury trial, appellant Michael Calvin Francis was convicted of attempted first-degree premeditated murder for the shooting of Marvin Pate and of first-degree premeditated murder for the shooting death of Pamela Ragland. Francis filed a direct appeal, which was stayed so he could pursue a petition for postconviction relief. The postconviction court denied the petition for postconviction relief. We affirmed the

convictions and the denial of the first postconviction petition in a consolidated appeal. State v. Francis (Francis I), 729 N.W.2d 584, 588 (Minn. 2007). Francis filed a second postconviction petition alleging ineffective assistance of trial counsel. The

postconviction court summarily denied Franciss second petition for postconviction relief. Because we conclude that Franciss claims are procedurally barred, we affirm. The facts surrounding Franciss convictions are set forth in detail in Francis I. Briefly, on the evening of May 24, 2004, Marvin Pate and his girlfriend, Pamela Ragland, were sitting in Raglands car, which was parked in south Minneapolis. Pate got out of the car and was standing by the open front passenger door talking to Ragland when he noticed a blue Chevrolet Tahoe approach from the north and stop in front of him. Pate stated that he saw Francis, who was in the Tahoe, raise a gun and begin firing at him. 2

Pate was shot and fell to the ground. While lying on the ground, he observed the Tahoes specialty rims and exhaust pipes as it sped away. Law enforcement officers and medical responders arrived within minutes. When asked who shot him, Pate replied, "It was a blue truck." When asked again on the way to the hospital, Pate stated that it was "Mike." Pate underwent emergency surgery at the hospital for his injuries. Ragland was shot in the head and died a few hours later. In police interviews at the hospital and later at his home, Pate stated that Francis was the shooter and that he drove a blue Tahoe. Also, Pate identified Francis as the shooter from a photographic lineup. A surveillance videotape from a nearby business showed a blue Tahoe in the area at the time of the shooting. Subsequently, police seized a blue Tahoe that was registered to the mother of Franciss girlfriend. Francis was driving the vehicle when the police seized it. At trial, the State presented evidence consisting of Pates identification of Francis as the shooter, as well as Franciss cell-phone records. The States expert testified that the cell-phone records showed frequent use of the cell phone the hour before the shooting, a 15-minute gap around the time of the shooting, and then a resumption of cellphone use after the shooting. The records further indicated that the calls made from Franciss cell phone shortly before the 15-minute gap were processed through a cell-site tower located within the general area of the shooting. The State also presented testimony of a local resident, who stated that on the night of the shooting he heard gunshots and then saw a SUV with a blue glow from the dashboard drive by his house. On

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examination at the forensic garage, the Tahoe Francis was known to drive was found to have an after-market stereo system that emits a blue light. The jury found Francis guilty of first-degree premeditated murder and first-degree drive-by-shooting murder for the death of Ragland and of attempted first-degree premeditated murder and attempted first-degree drive-by-shooting murder for the shooting of Pate. Francis was convicted of attempted first-degree premeditated murder of Pate and of first-degree premeditated murder of Ragland. Francis received a 180-month sentence and a consecutive mandatory life sentence without the possibility of release. Franciss appellate counsel filed a direct appeal and later filed a brief challenging the convictions. Subsequently, Francis discharged his attorney and sought a stay of his appeal to allow him to institute postconviction proceedings, which the court granted. As part of the appeal, Francis signed a waiver of counsel form acknowledging that he "will be held to the same standard of responsibility as a licensed attorney," that he "cannot later claim that because [he] made mistakes while representing [him]self on appeal that [he is] entitled to a new appeal," and "that all existing legal issues with respect to [his] present conviction and/or sentence must be raised by [him] in this court proceeding or they will be waived." The district court summarily denied the petition for postconviction relief, and his appeal of that denial was consolidated with his direct appeal. In the first appeal, Francis argued that (1) the district court erred in various evidentiary rulings, (2) the jury instructions were incomplete, (3) prosecutorial misconduct deprived him of a fair trial, (4) trial counsel was ineffective, and (5) the evidence was insufficient to support the

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verdicts. We affirmed Franciss convictions and the summary denial of his first petition for postconviction relief. Francis I, 729 N.W.2d at 593. Francis retained private counsel and filed a second petition for postconviction relief, arguing that his trial counsel was ineffective and that he was entitled to an evidentiary hearing to demonstrate the ineffectiveness. summarily denied the second petition, and Francis appealed. I. Francis argues that the postconviction court abused its discretion by summarily dismissing his second petition for postconviction relief without an evidentiary hearing. Specifically, Francis argues that because he did not have the benefit of appellate counsel in his direct appeal and first petition for postconviction relief, this appeal should be treated as his direct appeal and first postconviction petition. Generally, we review the denial of a postconviction petition for an abuse of discretion. Roby v. State, 531 N.W.2d 482, 483 (Minn. 1995). In doing so, we review questions of law de novo and findings of fact for an abuse of discretion. Arredondo v. State, 754 N.W.2d 566, 570 (Minn. 2008). A person convicted of a crime may file a petition for postconviction relief under Minn. Stat.

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