It was not an abuse of discretion to deny appellant's motion to remove the post-conviction court judge for cause.
The post-conviction court did not abuse its discretion when it refused to grant a new trial based on recanted trial testimony without conducting an evidentiary hearing.
The post-conviction court did not abuse its discretion when it refused to grant a new trial based on newly discovered evidence without conducting an evidentiary hearing.
The opinion of the court was delivered by: Page, Justice.
Considered and decided by the court en banc.
In a jury trial before Hennepin County District Court Judge Patricia Kerr Karasov, Brian Keith Hooper was convicted of three counts of first-degree murder for the 1998 death of Ann Prazniak. Hooper was sentenced to three concurrent life sentences. Hooper's direct appeal was stayed to allow him to seek post-conviction relief based on his claim of newly discovered evidence. After Hooper was denied post-conviction relief, this court reinstated Hooper's direct appeal and affirmed both his conviction and the post-conviction court's denial of relief.*fn1 State v. Hooper, 620 N.W.2d 31, 40-41 (Minn. 2000).
On March 11, 2003, Hooper filed a second petition for post-conviction relief that was assigned to Judge Karasov. On March 28, 2003, Hooper's counsel, Jeffrey Dean, filed a notice to remove Judge Karasov and wrote Hennepin County Chief Judge Kevin Burke a letter requesting that the matter be reassigned pursuant to the notice to remove. That same day, Dean met with the chief judge regarding the request for reassignment. On April 15, 2003, the chief judge wrote Dean a letter informing him that the matter would not be reassigned and that his choices were to either proceed with the post-conviction proceeding before Judge Karasov or to file a motion to remove her for cause. On May 8, Judge Karasov denied Hooper's petition for post-conviction relief without an evidentiary hearing. On May 12, 2003, Hooper filed a motion to remove Judge Karasov for cause. By order filed June 19, 2003, the chief judge denied Hooper's motion to remove Judge Karasov for cause. In the memorandum accompanying the order, the chief judge noted first that, under Minn. R. Crim P. 26.03, subdivision 13(4), "No notice to remove shall be effective against a judge who has already presided at the trial * * * except upon an affirmative showing of cause [on the part of the judge]." The chief judge went on to note that, because Judge Karasov presided at trial, Hooper was required to make an affirmative showing of cause, which he failed to do. Specifically, he noted that there were no facts suggesting that Judge Karasov's "conduct revealed actual bias or the appearance of bias to such a degree that Petitioner was denied a fair hearing."
In this appeal, Hooper makes four arguments: first, Judge Karasov did not have jurisdiction to decide the second petition for post-conviction relief due to the pending notice to remove; second, the chief judge wrongly denied his motion to remove Judge Karasov; third, the post-conviction court abused its discretion by denying his petition for a new trial based on newly discovered evidence and recanted trial testimony without conducting an evidentiary hearing; and, fourth, his due process and fair trial rights were violated by both the denial of a new trial and by the fact that a biased judge ruled on the second petition for post-conviction relief.*fn2 We affirm.
Our review of post-conviction proceedings is limited to determining whether there is sufficient evidence to support the findings of the post-conviction court. State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993). We will not disturb those findings absent an abuse of discretion. Ferguson v. State, 645 N.W.2d 437, 446 (Minn. 2002). In order to receive a new trial, the petitioner must establish by a preponderance of the evidence facts that would warrant re-opening the case. State v. Rhodes, 627 N.W.2d 74, 86 (Minn. 2001). An evidentiary hearing is required "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 (2002); see Ferguson, 645 N.W.2d at 446 (stating that a hearing is required when "facts [are alleged] that would, if proved by a fair preponderance of the evidence, entitle [one] to relief").
"No notice to remove shall be effective against a judge who has already presided at the trial, * * * except upon an affirmative showing of cause on the part of the judge." Minn. R. Crim. P. 26.03, subd. 13(4). A post-conviction proceeding is an extension of the criminal prosecution. Johnson v. State, 486 N.W.2d 825, 827 (Minn. App.), rev. denied (Minn. Aug. 27, 1992). Therefore, once the parties have already appeared before the judge, there is no automatic removal as of right in a post-conviction proceeding. See id., 486 N.W.2d at 827-28.
Here, Judge Karasov presided at Hooper's trial and first post-conviction petition and was assigned the second petition. On March 28, 2003, Hooper filed a "Notice to Remove" Judge Karasov, using a form typically used by prosecutors to remove a judge as of right. That same day, Dean spoke with the chief judge, with counsel for the state present, in addition to writing the chief judge a letter requesting that the matter be reassigned pursuant to the notice to remove. According to the letter and an affidavit submitted by Dean, the basis for seeking Judge Karasov's removal was bias on her part. On April 15, 2003, the chief judge wrote Hooper a letter informing him that he would not reassign the matter. The chief judge also informed Hooper that his only options at that point were to either proceed with the post-conviction proceeding or to file a motion to remove Judge Karasov for cause. No motion to remove Judge Karasov for cause was forthcoming and on May 8, 2003, Judge Karasov denied Hooper's petition for post-conviction relief. On May 12, 2003, Hooper filed a motion to remove Judge Karasov for cause, ...