                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0614

                           John Stephen Woodward, petitioner,
                                       Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed March 16, 2015
                                        Affirmed
                                    Schellhas, Judge

                              Ramsey County District Court
                               File No. 62-K5-04-002433

Cathryn Middlebrook, Chief Appellate Public Defender, Katie Conners, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

John Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)

       Considered and decided by Schellhas, Presiding Judge; Stauber, Judge; and

Hooten, Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

       Appellant challenges the postconviction court’s summary denial of his petition for

postconviction relief, arguing that the petition was not time-barred and that he is entitled
to relief on the grounds of newly discovered evidence, manifest injustice, and ineffective

assistance of counsel. We affirm.

                                         FACTS

       In June 2004, police stopped a vehicle driven by appellant John Stephen

Woodward for weaving from lane to lane without signaling. In the course of the stop, an

officer saw Woodward “grab[] a small baggie that was between his legs and put his hands

in his pockets.” The officer recovered the baggie, suspecting that it contained

methamphetamine, and Woodward admitted that the substance was methamphetamine.

Woodward also had a narcotics pipe in the vehicle and admitted that he had used

methamphetamine earlier that evening. The St. Paul Crime Lab (crime lab) analyzed the

substance in the baggie, which had a net weight of 0.8 grams and tested positive for

methamphetamine. Woodward pleaded guilty to fifth-degree controlled-substance crime

(possession). Woodward testified at the plea hearing that the police officer found “[a]

package of methamphetamine” in his pocket and that he had a methamphetamine pipe “in

the vehicle” during the traffic stop. In July 2005, the district court sentenced Woodward

to a stay of adjudication and placed him on probation for five years.

       In September 2007, Woodward was convicted of conspiracy to commit first-

degree controlled-substance crime (sale of ten or more grams of methamphetamine),

second-degree controlled substance crime (sale of three or more grams of

methamphetamine), and fifth-degree controlled-substance crime (possession), and the

district court sentenced him to 94 months’ imprisonment.




                                             2
       In January 2008, the district court vacated Woodward’s 2005 stay of adjudication,

and on April 9, at Woodward’s request, the court imposed and executed the presumptive

sentence of one year and one day. In October 2012, Woodward filed a postconviction-

relief petition, seeking to vacate his 2008 conviction for his 2004 controlled-substance

crime. Respondent State of Minnesota opposed the petition. Woodward requested that the

proceedings be delayed and subsequently filed a supplemental memorandum in support

of his petition. In November 2013, the postconviction court heard oral argument and, in

February 2014, denied Woodward’s petition without an evidentiary hearing.

       This appeal follows.

                                     DECISION

       “[A] person convicted of a crime, who claims that . . . the conviction obtained or

the sentence or other disposition made violated the person’s rights under the Constitution

or laws of the United States or of the state . . . may commence a proceeding to secure

relief . . . .” Minn. Stat. § 590.01, subd. 1 (2014). But “[n]o petition for postconviction

relief may be filed more than two years after . . . the entry of judgment of conviction or

sentence if no direct appeal is filed.” Id., subd. 4(a) (2014). Notwithstanding that two-

year time limit,

              a court may hear a petition for postconviction relief if:

                     ....

                     (2) the petitioner alleges the existence of newly
              discovered evidence, including scientific evidence, that could
              not have been ascertained by the exercise of due diligence by
              the petitioner or petitioner’s attorney within the two-year time
              period for filing a postconviction petition, and the evidence is


                                              3
              not cumulative to evidence presented at trial, is not for
              impeachment purposes, and establishes by a clear and
              convincing standard that the petitioner is innocent of the
              offense or offenses for which the petitioner was convicted;
              [or]

                     ....

                      (5) the petitioner establishes to the satisfaction of the
              court that the petition is not frivolous and is in the interests of
              justice.

Id., subd. 4(b) (2014). “[Appellate courts] review the denial of a petition for

postconviction relief without a hearing for an abuse of discretion. In particular, [appellate

courts] review the postconviction court’s legal determinations de novo and its factual

findings under the clearly erroneous standard.” Chambers v. State, 831 N.W.2d 311, 318

(Minn. 2013) (citation omitted).

       Woodward argues that he is entitled to withdraw his guilty plea to the 2004

controlled-substance crime because (1) evidence of crime-lab deficiencies meets the

Rainer test for newly discovered evidence, warranting trial; (2) the crime-lab deficiencies

rendered his plea inaccurate, involuntary, or unintelligent; and (3) his trial counsel

provided ineffective assistance. Woodward did not appeal his 2008 controlled-substance

conviction and therefore had two years from the entry of judgment of conviction or

sentence to file a petition for postconviction relief. See Minn. Stat. § 590.01, subd. 4(a).

Woodward did not file his postconviction petition until October 2012—more than four

years after his sentencing in April 2008. Woodward asserts that the newly-discovered-

evidence and interests-of-justice exceptions excuse the untimeliness of his petition.

Specifically, he argues that evidence of crime-lab deficiencies satisfies the newly-


                                              4
discovered-evidence exception under Minn. Stat. § 590.01, subd. 4(b)(2), and that

“objective evidence of widespread, substandard drug testing” at the crime lab supports

the application of the interests-of-justice exception under Minn. Stat. § 590.01, subd.

4(b)(5).

Newly discovered evidence

                      To satisfy the newly-discovered-evidence exception a
              petitioner must allege in part: (1) the existence of newly
              discovered evidence that could not have been ascertained by
              the exercise of due diligence within the two-year time period
              for filing a postconviction petition, and (2) that the newly
              discovered evidence establishes the petitioner’s innocence by
              clear and convincing evidence.

Erickson v. State, 842 N.W.2d 314, 318 (Minn. 2014) (citing Minn. Stat. § 590.01, subd.

4(b)(2); Clifton v. State, 830 N.W.2d 434, 438–39 (Minn. 2013)). “Under Minn. Stat.

§ 590.01, subd. 4(b)(2), the burden of presenting clear and convincing evidence of

innocence is on the petitioner.” Scott v. State, 788 N.W.2d 497, 502 (Minn. 2010). “To

prove a claim by clear and convincing evidence, a party’s evidence should be

unequivocal, intrinsically probable and credible, and free from frailties.” Riley v. State,

819 N.W.2d 162, 170 (Minn. 2012) (quotation omitted).

       In this case, Woodward has not demonstrated that the evidence of deficiencies at

the crime lab could not have been ascertained by the exercise of due diligence by him or

his counsel within the two-year time period for filing a postconviction petition. See Minn.

Stat. § 590.01, subd. 4(b)(2). The state alleged in its 2004 complaint that “[t]he recovered

substance was analyzed at the [crime lab] and had a net weight of 0.8 gram” and that “[i]t

tested positive for methamphetamine.” The complaint therefore placed Woodward on


                                             5
notice that the state based the controlled-substance charge on the results of the crime-lab

test. Woodward could have investigated and challenged the foundational reliability

and/or validity of the test results. See Roberts v. State, 856 N.W.2d 287, 291 (Minn. App.

2014) (reaching same conclusion on similar facts in reliance on, inter alia, Minn. Stat.

§ 611.21(a), Minn. R. Crim. P. 9.01, subd. 1(4), 11.02, .04), review denied (Minn.

Jan. 28, 2015). Woodward essentially admits that the crime-lab deficiencies could have

been ascertained by the exercise of due diligence by arguing in support of his ineffective-

assistance-of-trial-counsel claim that, if his trial counsel had “done more,” counsel

“would have discovered” evidence of deficiencies at the crime lab.

       Moreover, the evidence of deficiencies at the crime lab does not “establish[] by a

clear and convincing standard that [Woodward] is innocent of” the 2004 controlled-

substance crime that resulted in his 2008 conviction. See Minn. Stat. § 590.01, subd.

4(b)(2). On this point, our recent opinion in Roberts is highly instructive:

              Roberts’s new evidence regards the “sufficiency of the
              training, knowledge, and practices of laboratory employees”
              at the crime lab. But Roberts does not offer evidence
              regarding the chemical composition of the particular
              substance in his case. In fact, Roberts has never claimed—in
              district court, during postconviction proceedings, or on
              appeal—that the substance was not cocaine.

                     ....

              [T]here was nonscientific evidence of guilt. The complaint
              suggested that the arresting officer suspected that the
              substance was crack cocaine based on its appearance. The
              complaint also indicated that Roberts ran from the officer
              after the substance fell out of his pant leg, and flight is
              evidence of “consciousness of guilt.” These circumstances are
              fatal to Roberts’s attempt to establish actual innocence based


                                              6
              on speculation regarding the validity of the test results in his
              case.

856 N.W.2d at 291–92 (citation omitted). Like Roberts, Woodward does not offer

evidence regarding the chemical composition of the substance that was in the baggie

recovered from his person during the June 2004 traffic stop. In fact, Woodward never has

claimed that the substance was not methamphetamine, and he admitted to the arresting

officer and at his plea hearing that the substance was methamphetamine. Under these

circumstances, we conclude that the evidence of deficiencies at the crime lab does not

satisfy the newly-discovered-evidence exception.

Interests of justice

       “To satisfy the interests-of-justice exception . . . a petitioner must satisfy two

requirements: (1) that the petition ‘is not frivolous,’ and (2) that the petition ‘is in the

interests of justice.’” Wallace v. State, 820 N.W.2d 843, 849 (Minn. 2012) (quoting

Minn. Stat. § 590.01, subd. 4(b)(5)). The supreme court has “establish[ed] that [it] will

only apply the interests of justice exception in exceptional situations . . . [and] ha[s]

identified a non-exclusive list of factors to be considered.” Gassler v. State, 787 N.W.2d

575, 586 (Minn. 2010). Those factors include “the degree to which the party alleging

error is at fault for that error, the degree of fault assigned to the party defending the

alleged error, and whether some fundamental unfairness to the defendant needs to be

addressed.” Id. at 587.

       In this case, as in Roberts, “[t]he alleged ‘error’ . . . is the post-plea discovery of

deficient testing at the crime lab.” See 856 N.W.2d at 293. But as discussed above,



                                              7
Woodward could have investigated and challenged the foundational reliability and/or

validity of the test results but failed to do so. Like Roberts, Woodward “does not allege

that his attorney . . . refused his request to challenge the test results, or advised him not

to challenge the results.” See id. Neither does Woodward claim that the state intentionally

withheld knowledge of deficiencies at the crime lab or impeded his investigation efforts.

Woodward simply failed to discover evidence of crime-lab deficiencies before he pleaded

guilty to the 2004 controlled-substance crime.

       In Roberts, we stated that

              it is not fundamentally unfair to hold Roberts accountable for
              his choice to accept the state’s scientific evidence at face
              value and resolve his case with a guilty plea in exchange for a
              reduced sentence.

                      Nor is it necessary to act in the interests of justice to
              protect the integrity of the judicial proceedings. The post-plea
              discovery of problems at that crime lab does not stem from a
              flaw in the judicial process. It stems from Roberts’s decision
              to waive his right to challenge the state’s evidence against
              him. In hindsight, Roberts may regret his decision to plead
              guilty. But that is not a just reason to allow Roberts to pursue
              an untimely request for plea withdrawal.

Id. The reasoning in Roberts is applicable here. Fundamental fairness and the interests of

justice do not require that Woodward be granted postconviction relief under the newly-

discovered-evidence exception, and Woodward’s post-plea discovery of evidence of

crime-lab deficiencies does not satisfy the interests-of-justice exception. Woodward does

not claim that any other statutory exception excuses the untimeliness of his petition for

postconviction relief. We therefore conclude that the postconviction court did not abuse

its discretion in determining that Woodward’s petition was time-barred.


                                             8
       Because Woodward did not assert his claims in a timely postconviction petition, or

in an untimely petition whose untimeliness is excused by a statutory exception, we do not

consider them. See Erickson, 842 N.W.2d at 318 (stating that, “absent an applicable

statutory exception, the time bar precludes all of [petitioner]’s claims,” including his

ineffective-assistance claim); Lussier v. State, 821 N.W.2d 581, 586 n.2 (Minn. 2012)

(stating that “the timeliness requirements found in section 590.01 apply with equal force

to [a] petition” for postconviction relief that asserts a claim for plea withdrawal as to a

petition that does not assert such a claim); cf. Miles v. State, 840 N.W.2d 195, 200–01

(Minn. 2013) (distinguishing newly-discovered-evidence exception to two-year time limit

for filing postconviction-relief petition from postconviction claim for new trial based on

newly discovered evidence).

Ineffective-assistance-of-postconviction-counsel claim

       Woodward argues that his postconviction counsel provided ineffective assistance.

He had a right to the assistance of counsel during his postconviction proceedings because

he did not directly appeal his 2008 controlled-substance conviction. See Deegan v. State,

711 N.W.2d 89, 98 (Minn. 2006) (“[A] defendant’s right to the assistance of counsel

under Article I, section 6 of the Minnesota Constitution extends to one review of a

criminal conviction, whether by direct appeal or a first review by postconviction

proceeding.”). Although Woodward properly asserts his ineffective-assistance-of-

postconviction-counsel claim in this appeal from the denial of postconviction relief, see

Schleicher v. State, 718 N.W.2d 440, 445 (Minn. 2006) (concluding that petitioner’s

“[ineffective-assistance-of-postconviction-counsel] claim [wa]s properly raised on appeal


                                            9
from the denial of his first petition” for postconviction relief), we conclude that his claim

fails on its merits.

        “[Appellate courts] examine ineffective-assistance-of-counsel claims under the

Supreme Court’s two-prong test set forth in Strickland v. Washington . . . .” State v.

Vang, 847 N.W.2d 248, 266 (Minn. 2014). “To prevail under Strickland, [a petitioner]

must show that (1) his postconviction counsel’s representation fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Lussier v. State, 853 N.W.2d 149, 154 (Minn. 2014) (quotations omitted). “[Appellate

courts] need not analyze both prongs if either one is determinative.” Vang, 847 N.W.2d at

266.

       Here, Woodward complains that his postconviction counsel “failed to obtain the

plea hearing transcript in this case and thus failed to make a meaningful argument to the

court for withdrawal of his guilty plea.” But the postconviction court determined that

Woodward’s postconviction claims, including those relating to the validity of his guilty

plea, are precluded by the time bar. Any failure of Woodward’s postconviction counsel to

“meaningful[ly] argu[e]” the merits of the plea-validity claims could not have impacted

the postconviction court’s determination that such claims are procedurally barred. We

therefore conclude that no reasonable probability exists that any errors made by

Woodward’s postconviction counsel impacted the result of the postconviction

proceeding.      Accordingly,    we     reject    Woodward’s      ineffective-assistance-of-

postconviction-counsel claim.


                                             10
Denial of evidentiary hearing on postconviction petition

      Woodward asserts that the postconviction court erred by denying his request for an

evidentiary hearing. A petitioner is not entitled to an evidentiary hearing on an untimely

petition for postconviction relief unless he demonstrates that the untimeliness is excused

by a statutory exception to the two-year time limit. See Riley, 819 N.W.2d at 168 (stating

that because petition was time-barred under Minn. Stat. § 590.01, subd. 4(a), petitioner

was not entitled to evidentiary hearing “unless he c[ould] show that he satisfie[d] one of

the exceptions of subdivision 4(b)”). Because Woodward has failed to demonstrate the

applicability of any such exception, the postconviction court did not abuse its discretion

by summarily denying Woodward’s petition.

      Affirmed.




                                           11
