                        This opinion will be unpublished and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
                                   A15-1211


                            Jamel Daniel Hoard, petitioner,
                                     Appellant,

                                          vs.

                                 State of Minnesota,
                                    Respondent.


                                 Filed April 25, 2016
                                      Affirmed
                                  Bjorkman, Judge


                            Ramsey County District Court
                             File No. 62-K9-08-001049

Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

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

      Considered and decided by Halbrooks, Presiding Judge; Bjorkman, Judge; and

Toussaint, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

BJORKMAN, Judge

       Appellant challenges the summary denial of his petition for postconviction relief,

arguing that he is entitled to a new trial because of testing deficiencies discovered at the

St. Paul Police Department Crime Lab (SPPDCL). We affirm.

                                         FACTS

       On October 25, 2007, officers with the St. Paul Police Department were

investigating complaints of drug dealing near a store in the Frogtown neighborhood. The

officers observed three men loitering in front of the store. As the officers approached

them, appellant Jamel Daniel Hoard backed away, and an officer observed what he

believed to be a bag of crack cocaine in Hoard’s clenched hand. Hoard then turned and

ran into the store. An officer pursued Hoard and managed to subdue him. Hoard

continued to resist as the officer attempted to handcuff him, and placed the bag in his

mouth. Additional officers arrived to help subdue Hoard, who had to be tased. The

officers then removed the bag from Hoard’s mouth. It contained 30 smaller knotted bags.

Testing by the SPPDCL indicated that each bag contained cocaine. The total net weight

was 7.14 grams.

       Respondent State of Minnesota charged Hoard with one count of second-degree

controlled-substance crime. At his jury trial, Hoard did not dispute that the substance he

possessed was cocaine. Rather, he challenged its weight and the chain of custody. The

jury found Hoard guilty; this court affirmed his conviction. State v. Hoard, No. A09-293

(Minn. App. Mar. 2, 2010), review denied (Minn. May 18, 2010).


                                             2
       On July 18, 2014, Hoard filed a petition for postconviction relief. The petition

alleged that Hoard was entitled to relief based on the “faulty testing policies, practices,

and procedures” at the SPPDCL that came to light in 2012. See Roberts v. State, 856

N.W.2d 287, 289 (Minn. App. 2014) (discussing the discovery of systemic problems and

subsequent audits of the SPPDCL), review denied (Minn. Jan. 28, 2015). Hoard argued

that the two-year period for bringing his petition did not bar his claim because the newly-

discovered-evidence and interests-of-justice exceptions applied.         The district court

summarily denied Hoard’s petition as untimely. Hoard appeals.

                                     DECISION

       An individual who asserts that his criminal conviction was obtained in violation of

his constitutional rights may file a petition for postconviction relief.        Minn. Stat.

§ 590.01, subd. 1 (2012). Petitions must be filed within two years of the later of “(1) the

entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate

court’s disposition of petitioner’s direct appeal.” Id., subd. 4(a) (2012). A petition filed

after the two-year time limit may be considered if it satisfies one of five statutory

exceptions. See id., subd. 4(b) (2012). A petition that invokes one of the exceptions

must be filed within two years of the date the claim arises. Id., subd. 4(c) (2012).

       We review denial of a petition for postconviction relief for an abuse of discretion.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). An abuse of discretion occurs when a

postconviction court’s decision is based on an erroneous view of the law or is against

logic and the facts in the record. Id. We review legal issues de novo, but our review of




                                             3
factual issues is limited to whether there is sufficient evidence in the record to sustain the

postconviction court’s findings. Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015).

       Hoard acknowledges that he filed his petition outside the two-year time limit, but

argues that the newly-discovered-evidence and interests-of-justice exceptions apply. We

address each argument in turn.

I.     The newly-discovered-evidence exception has not been satisfied.

       A court may hear an untimely petition for postconviction relief if (1) the petitioner

alleges the existence of newly discovered evidence, (2) the evidence could not have been

discovered through the due diligence of the petitioner or his attorney within the two-year

time limit, (3) the evidence is not cumulative, (4) the evidence is not for impeachment

purposes, and (5) the evidence establishes the petitioner’s innocence by clear and

convincing evidence. Roberts, 856 N.W.2d at 290 (citing Minn. Stat. § 590.01, subd.

4(b)(2)). All five elements must be established to obtain relief. Id.

       Hoard argues that the testing deficiencies that were discovered at the SPPDCL in

2012 constitute newly discovered evidence.         We rejected this argument in Roberts,

holding that the newly-discovered-evidence exception did not apply because Roberts

failed to show that the testing deficiencies could not have been discovered through the

exercise of due diligence and did not establish by clear and convincing evidence that he

was innocent. Id. at 291-92. Like Roberts, Hoard did not challenge the identity of the

substance, nor did he ever claim the substance was not cocaine. Rather, his defense was

based on the weight of the cocaine and problems with the chain of custody.




                                              4
       Hoard attempts to distinguish Roberts, arguing that even if the SPPDCL reports

had been diligently reviewed, it would have taken an attorney with specialized training to

discover the testing deficiencies. But like Roberts, Hoard has failed to show that he made

any attempt to investigate the test results or that anyone prevented him from doing so. Id.

at 291. Moreover, Hoard has failed to show actual innocence by clear and convincing

evidence. As in Roberts, there is non-scientific evidence of Hoard’s guilt. Id. at 292. A

testifying officer stated that the substance appeared to be cocaine, that Hoard attempted to

flee after being ordered to stop, and that Hoard tried to swallow the bag as the officers

subdued him. See State v. Olhausen, 681 N.W.2d 21, 28-29 (Minn. 2004) (stating that an

officer’s opinion is non-scientific evidence of the identity of the substance and flight

suggests a consciousness of guilt).

       Because Hoard failed to establish all five elements of the newly-discovered-

evidence exception, we conclude the district court did not abuse its discretion by

concluding that the exception does not apply.

II.    The interests-of-justice exception does not apply.

       “[A] court may hear an untimely petition for postconviction relief if ‘the petitioner

establishes to the satisfaction of the court that the petition is not frivolous and is in the

interests of justice.’” Roberts, 856 N.W.2d at 292 (quoting Minn. Stat. § 590.01, subd.

4(b)(5)). The interests-of-justice exception applies in exceptional cases where a claim

has substantive merit and the petitioner has not deliberately and inexcusably failed to

raise the issue on direct appeal. Id. Courts also consider the degree to which each party

is at fault for the alleged error, whether a fundamental unfairness to the defendant needs


                                             5
to be addressed, and if relief is necessary to protect the integrity of judicial proceedings.1

Id.

       Hoard argues that his petition has substantive merit based on a Brady violation, a

due-process violation, and ineffective assistance of counsel. We address each in turn.

       A.     Brady Violation

       The prosecution has an affirmative duty to disclose evidence that is favorable and

material to the defense. Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97

(1963). To warrant a new trial due to a Brady violation, a petitioner must establish that

(1) the evidence was favorable to him as exculpatory or impeaching; (2) the evidence was

suppressed by the prosecution, intentionally or otherwise; and (3) the evidence was

material, resulting in prejudice to the petitioner. Walen v. State, 777 N.W.2d 213, 216

(Minn. 2010).    The suppression of evidence is prejudicial if “there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” Id. (quotation omitted).

       The state argues that Hoard failed to establish a Brady violation because nothing

in the record supports the conclusion that any evidence was suppressed by the

prosecution. We agree. Hoard does not allege any facts indicating that the prosecution

knew of the problems at the SPPDCL at the time of his trial. In fact, he argues that no

one outside of the lab knew about the problems until July 2012. Hoard has failed to show

that a Brady violation occurred.


1
 This list of factors is non-exclusive. Gassler v. State, 787 N.W.2d 575, 586 (Minn.
2010).

                                              6
       B.     Procedural Due Process

       Both the United States and Minnesota Constitutions require that an individual

receive “adequate notice and an opportunity to be heard before being deprived of life,

liberty, or property.” Christopher v. Windom Area Sch. Bd., 781 N.W.2d 904, 911

(Minn. App. 2010), review denied (Minn. June 29, 2010).             When considering a

procedural due-process claim, we “first determine whether a protected liberty or property

interest is implicated and then determine what process is due by applying a balancing

test.” State v. Ness, 819 N.W.2d 219, 225 (Minn. App. 2012), aff’d, 834 N.W.2d 177

(Minn. 2013).

       Hoard cites State v. Schwartz, 447 N.W.2d 422, 426 (Minn. 1989), to support his

argument that the state’s use of unreliable scientific testing methods implicate a liberty

interest that is subject to due-process protections. In Schwartz, the supreme court held

that when the state relies on DNA testing evidence “defense counsel has the right to

inspect and reproduce any results or reports of . . . scientific tests, experiments or

comparisons made in connection with the particular case.” 447 N.W.2d at 427 (quotation

omitted). Hoard has not claimed or presented any evidence that he was denied the

opportunity to inspect and reproduce any of the reports regarding the scientific testing in

his case. He did not challenge the test result indicating the substance was cocaine, and

there is no evidence that he attempted to and was prevented from doing so. Hoard’s

procedural due-process rights were not violated.




                                            7
       C.     Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, Hoard must demonstrate

“(1) that his 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.’” Nissalke

v. State, 861 N.W.2d 88, 94 (Minn. 2015) (quoting Strickland v. Washington, 466 U.S.

668, 688, 694, 104 S. Ct. 2052, 2064, 2068 (1984)). An attorney provides reasonable

assistance when he exercises the customary skills and diligence that a reasonably

competent attorney would exercise under the circumstances. Dukes v. State, 621 N.W.2d

246, 252 (Minn. 2001). A trial counsel’s performance is presumed to be reasonable.

State v. Vang, 847 N.W.2d 248, 266 (Minn. 2014).

       The district court rejected Hoard’s argument, concluding that Hoard failed to

provide any support for his claim. We agree. We do not review issues of trial strategy,

and “[t]he extent of counsel’s investigation is considered a part of trial strategy.” Opsahl

v. State, 677 N.W.2d 414, 421 (Minn. 2004). Moreover, there is nothing in the record to

suggest that Hoard ever claimed the substance was not cocaine. Hoard was arrested

while the officers were investigating complaints of drug dealing, fled the scene after

officers ordered him to stop, and attempted to swallow the substance, which had been

divided into thirty bags. Given this information, and in the absence of any assertion from

Hoard that the substance was not cocaine, it was not unreasonable for Hoard’s counsel to

accept that the substance was cocaine and not challenge the test results. Because Hoard




                                             8
does not show how his attorney’s representation fell below an objective standard of

reasonableness, his ineffective-assistance-of-counsel claim fails.

       In sum, we discern no abuse of discretion by the district court in denying Hoard’s

postconviction petition. He has not demonstrated that the newly-discovered-evidence or

interests-of-justice exceptions apply to permit his otherwise untimely petition.     And

because the record conclusively shows that Hoard is not entitled to relief, the district

court did not abuse its discretion by denying his request for an evidentiary hearing.

Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005) (“An evidentiary hearing is not

required unless there are material facts in dispute that must be resolved to determine the

postconviction claim on its merits.”).

       Affirmed.




                                             9
