Opinion
A21-0657
11-08-2021
Joshua Steven Mittelsted, petitioner, Appellant, v. State of Minnesota, Respondent.
Mower County District Court File No. 50-CR-14-2947
Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and Kirk, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.
ORDER OPINION
Lucinda E. Jesson, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2015, a jury found appellant Joshua Steven Mittelsted guilty of seven counts of criminal sexual conduct. State v. Mittelsted, No. A16-0589, 2017 WL 2625475, at *4 (Minn.App. June 19, 2017). The district court convicted him and sentenced him to 388 months in prison. Id. at *2.
2. In 2016, appellant filed a direct appeal, which he requested be stayed while he proceeded with his first petition for postconviction relief. Id. The postconviction court denied that petition and, after dissolving the stay, this court affirmed. Id. Appellant filed a second petition for postconviction relief in 2019. The postconviction court also denied that petition and this court affirmed. Mittelsted v. State, No. A19-1084 (Minn.App. Feb. 10, 2020), rev. denied (Minn. Apr. 28, 2020).
3. This matter is appellant's third petition for postconviction relief. He argues that he received ineffective assistance of trial and appellate counsel, the district court erred by accepting into evidence hearsay statements and videotaped victim interviews in violation of his constitutional rights, the evidence was insufficient to support his convictions of certain counts, the victims had motive to lie, the prosecutor committed misconduct, and he was denied due process. The postconviction court denied his ineffective-assistance claims as time-barred and the remaining claims as procedurally barred.
4. A postconviction petition must be filed no more than two years after an appellate court's disposition of a direct appeal, if one took place, unless the petitioner meets a statutory exception. Minn. Stat. § 590.01, subd. 4 (2020). But if the petitioner fails to assert an exception, this court need not consider them. Griffin v. State, 961 N.W.2d 773, 777 (Minn. 2021).
5. Here, the two-year time limit expired on September 18, 2019. Appellant filed his third petition 19 months after that and fails to raise any exception to the time-bar. All of his claims are therefore time-barred.
6. Additionally, a petitioner may not base a postconviction petition on claims that were raised or could have been raised on direct appeal or in a prior petition for postconviction relief unless the petitioner meets one of two exceptions. Minn. Stat. § 590.01, subd. 1 (2020); State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976); Townsendv. State, 723 N.W.2d 14, 18 (Minn. 2006). If a petitioner fails to invoke either exception, this court need not address them. Erickson v. State, 725 N.W.2d 532, 535 (Minn. 2007).
7. Here, all of appellant's claims could have been raised either on direct appeal in 2016 or in his second postconviction petition in 2019. And he fails to raise either exception to this procedural bar. All of his claims are therefore also procedurally barred.
IT IS HEREBY ORDERED:
1. The postconviction court's order denying appellant's third petition for postconviction relief is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.