OPINION
Appellant Ronald Lewis Greer was convicted of first- and second-degree murder as a result of the July 26, 1998 shooting death of Kareem Brown.
State v. Greer,
After Judge Crump denied the second recusal motion, defense counsel filed another removal motion with then-Chief Judge Daniel Mabley. Defense counsel once again argued that Judge Crump’s ex parte contact with the prosecutor was improper. Judge Mabley denied the motion and instructed the parties to return to Judge Crump for further proceedings.
In a post-trial motion, defense counsel claimed that Judge Crump had engaged in numerous
ex parte
contacts with the jury before and during deliberations. Defense counsel requested that Judge Crump re-cuse himself from deciding whether to grant a hearing on the issue of his
ex parte
contacts with the jury.
Greer I,
Appellant filed a notice of appeal to this court from the judgment of conviction, raising four issues in support of his appeal. We denied appellant’s requests on all but one claim: that Judge Crump erred when he refused to grant a hearing before an impartial judge to determine the extent of any ex parte communications with the jury. We then remanded the case to the chief judge of the district court with instructions to hear and decide the motion for а Schwartz hearing. Id. at 93-94.
On remand, Chief Judge Kevin Burke first took testimony from Judge Crump to determine the extent of any
ex parte
contacts with the jury. Judge Crump testified that he “may have briefly communicated with the jury regarding scheduling and exchanged some pleasantries.” All such contact, Judge Crump testified, was “incidental.”
State v. Greer,
The chief judge summoned six of the twelve jurors, chosen at random, and all six tеstified at the
Schwartz
hearing.
Id.
None of the six jurors recalled any discussion with Judge Crump regarding the reasons for procedural delays or the merits of the case. All six agreed that
ex parte
comments from Judge Crump had no influence on their verdict and that they had no reason to believe such comments had affected the vеrdicts of other jurors. The
Sometime following the original trial, defense counsel obtained affidavits from two former law clerks of Judge Crump. We noted these affidavits in Greer II. Id. at 122. These affidavits were filed with a petition for postconvietion relief, and were received in the record without objection. Defense counsel brought these affidavits to the attention of Chief Judge Burke. The chief judge allowed appellant 30 days to decide whether to formally pursue a claim connected with the affidavits, per Minn. Stat. 590.04 (2002). Appellant filed the current claim of “actual bias” on January 23, 2002, 3 months before the Schwartz hearing, which we reviewed in Greer II. The current matter, concerning the affidavits, was therefore pending concurrent to the allegations discussed in Greer II.
The first former clerk submitted an affidavit dated January 14, 2002. The first clerk noted that Judge Crump “told me he denied defense counsel’s challenges for cause because he was angry with them.” The second former clerk submitted an affidavit dated January 15, 2002. The second clerk similarly noted that Judge Crump “informed me and my co-clerk * ⅞ * that he was angry with defense counsel and denied defense challenges for cause because he was angry with them.” The second clerk also noted that Judge Crump was angry “because of his tone of voice, his agitated manner and his low frustration level.” Judge Crump passed out questionnaires to the jurors following the trial. The second clerk claimed that two of the jurors noted that they believed Judge Crump favored the prosecution. The second clerk further claimed that Judge Crump instructed the second clerk not to send the questionnaires to the attorneys, which was an unusual request. The second clerk’s impression was that “he did not want others to see them because of the claim of bias by the [cjourt.”
Based on the law clerks’ affidavits, appellant requested postconvietion relief, claiming that the affidavits constituted new evidence that allows a claim of “actual bias.” The matter was heard by Chief Judge Burke. In his December 3, 2002 order, the chief judge found that the grounds upon which the petition was based were “all relate[d] to the claim that Judge Crump was biased against Petitioner and his attorneys.” The сhief judge denied appellant’s petition. Appellant filed a notice of appeal on February 4, 2003. We affirm the postconvietion court’s ruling.
I.
A petition for postconvietion relief is a collateral attack on a conviction that carries a presumption of regularity.
Hummel v. State,
Postconvietion relief can be petitioned for in Minnesota pursuant to Minn. Stat. 590.01, subd. 1 (2002). A postconviction proceeding may require an evidentia-ry hearing.
See
Minn.Stat. 590.04 (2002). At the hearing, a petitioner bears the bur
In
State v. Knaffla,
we established that once a petitiоner has directly appealed a conviction, all matters raised in that appeal, and all matters that were known but not raised, “will not be considered upon a subsequent petition for post-conviction relief.”
In the present, matter, the postcon-viction court found that appellant had
not made an affirmative showing of prejudice. Moreover, all of [appellant’s] claims were already raised and thoroughly examined on direct appeal or were available at the time of appeаl. [Appellant] provides no claims ‘so novel that it can be said its legal basis was not reasonably available at the time direct appeal was taken.’
Further, the postconviction court found that all new allegations “relate[d] to the claim that Judge Crump was biased.” Appellant arguеs that the affidavits of Judge Crump’s law clerks should be considered as new evidence that was not previously available. These affidavits, appellant argues, constitute direct evidence of Judge Crump’s actual bias (or “smoking guns”), and were not available to appellant until after we had remanded his case. Appellant does not divulge how he managed to obtain these law clerk affidavits, or why they were not previously available. Nonetheless, appellant argues that the affidavits should overcome the Knajfla bar. The affidavits, argues appellant, allow for a new claim of “actual bias.” 1
As the postconviction court noted, impartiality is the very foundation of the American judicial system.
See Payne v. Lee,
Under this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless whether any of the specific rules in Section 3D(1) apply. * * * A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.
Commentary to the Minnesota Code of Judicial Conduct, Comments' — Canon 3 (Nov. 22,1995).
We have noted that Canon 3D(1) is not purely aspirational in its terms, because it uses the operative verb “shall disqualify.”
Powell v. Anderson,
The postconviction court found that appellant did not make an affirmativе showing of prejudice. Similarly, in Greer I, we thoroughly evaluated circumstances surrounding appellant’s trial, and found no substantive errors in the trial conduct. The United States Supreme Court, in the context of evaluating whether to recuse a judge under a federal statute, has stated that
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.
Liteky v. United States,
Appellant made numerous attempts to recuse Judge Crump. For example, during pretrial motions on May 4, 1999, appellant asked Judge Crump to re-cuse himself based on
ex parte
contacts with the prosecutor. After Judge Crump denied this motion, appellant renewed his motion on May 5, 1999. This second motion was denied as well. Appellant then went to Chief Judge Mabley to request removal of Judge Crump. Chief Judge Mabley denied this motion. Later, we remanded to the district court to conduct a
Schwartz
hearing to look into Judge Crump’s alleged jury misconduct.
Greer I,
Appellant has appealed numerous times based on his attempt to remove Judge Crump for bias. None of Judge Crump’s law clerks’ assertions aрpear to be “so novel” to surpass the Knaffla bar in light of the bias claims that had been already reviewed so many times. Rather, they vaguely point to “challenges” that Judge Crump may have erroneously denied. Moreover, in Greer I, we examined the voir dire interaction between defense counsel and рrospective jurors. We concluded:
[Appellant’s] ability to conduct an adequate voir dire of these prospective jurors was not infringed and * * ⅜ the trial court did not frustrate the purposes of voir dire by preventing [appellant] from discovering bases for challenge or inhibiting him from making an informеd exercise of peremptory challenges.
Greer I,
Even if presented during appellant’s numerous recusal motions, it is unlikely that the law clerks’ affidavits would have formed a basis in themselves for removal of Judge Crump or a specific juror or change in the composition of the jury panel. We agree with the Minnesota Court of Appeals, which has held that “[p]rior adverse rulings * * * clearly cannot constitute bias * * *.”
Olson v. Olson,
Affirmed.
Notes
. Appellant requests that this court consider the law clerks' affidavits as compelling newly-discovered evidencе. The test for newly-discovered evidence is articulated in
Rainer v. State,