¶1(dissenting).
¶2I respectfully dissent. We have held that, “even where the legal basis was reasonably available, ‘this court may allow substantive review of [a] claim in limited situations where fairness so requires and when the petitioner did not “deliberately and inexcusably” fail to raise the issue on direct appeal.’ ” Gassler v. State, 590 N.W.2d 769, 771 (Minn.1999) (quoting Russell v. State, 562 N.W.2d 670, 672 (Minn. 1997)). While the issue raised by Ademo-di’s postconviction petition arguably was reasonably available at the time of his direct appeal, it cannot seriously be argued that it was not novel. Because of that novelty and the fact that it is clear that Ademodi did not “deliberately and inexcusably” fail to raise the issue on direct appeal, I believe that fairness requires us to consider this case on its merits.
¶3(concurring specially).
¶4I concur with the result reached by the majority, but write separately to address the dissent. The dissent is correct when it states that we can address the merits of petitioner’s motion for postconviction relief by looking past petitioner’s waiver of his claim because he failed to raise the claim on direct appeal. We can do so when fairness so requires. The dissent concludes that fairness requires that we address the merits of petitioner’s claim under the Vienna Convention on Consular Relations (Vienna Convention), but unfortunately then fails to address the merits of that claim. While in this case it may be tempting to look to the fundamental fairness exception to the Knaffla doctrine, fairness considerations become more difficult if we were to address petitioner’s claim on its merits. For example, how would the dissent determine that failure to be advised of his rights under the Vienna Convention prejudiced petitioner? See Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). By addressing the merits, the dissent may be able to provide an answer to the dilemma presented by this case. But to suggest that we reach the merits and then not do so because we most likely would find another hurdle for petitioner only gives him a false sense of fairness.