                        This opinion will be unpublished and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
                                   A15-2008

                            Jamal Abdi Madar, petitioner,
                                    Appellant,

                                          vs.

                                  State of Minnesota,
                                      Respondent

                                Filed August 8, 2016
                                      Affirmed
                                   Worke, Judge

                            Ramsey County District Court
                              File No. 62-CR-11-8856

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 Smith, Tracy M., Presiding Judge; Worke, Judge; and

Reilly, Judge.
                         UNPUBLISHED OPINION

WORKE, Judge

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

relief based on testing deficiencies at the St. Paul Police Department Crime Lab (SPPDCL).

Because appellant’s petition was untimely and neither exception to the statute of limitations

applies, we affirm.

                                          FACTS

        In September 2011, police were notified of a suspicious package received at a UPS

store. Officers obtained and executed a search warrant and identified the package’s content

as bundles of khat. Appellant Jamal Abdi Madar picked up the package. Police stopped

Madar’s vehicle. The package was open and a bushel of khat sat atop. The khat was tested

at the SPPDCL. Madar was charged with fifth-degree controlled-substance crime—

possession. Prior to Madar’s jury trial, the state disclosed its intent to offer a SPPDCL

report at trial.

        During Madar’s jury trial, photographs of the khat and the khat itself were admitted

into evidence. An analyst from the SPPDCL testified that the khat weighed approximately

five pounds, was tested, and the test results indicated the presence of cathinone—a

stimulant that gives the user a psychedelic or hallucinogenic effect comparable to the

effects of methamphetamine use.

        Madar’s defense was that he did not know that khat was illegal. Madar’s recorded

interview was admitted into evidence. He admitted that he chewed khat for his health and

that his aunt sent it to him from England. The district court instructed the jury on the


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elements of the offense, including that Madar “knew or believed that the substance [he]

possessed was a controlled substance.” On May 9, 2012, the jury found Madar guilty, and

on June 29, 2012, the district court sentenced Madar to five years probation. Madar did

not file a direct appeal.

       On July 18, 2014, Madar petitioned for postconviction relief, claiming entitlement

to relief due to testing deficiencies at the SPPDCL. The district court denied Madar’s

petition for postconviction relief without an evidentiary hearing because it was untimely.

This appeal follows.

                                      DECISION

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

violated the person’s [constitutional] rights . . . may commence a proceeding to secure

[postconviction] relief by filing a petition . . . .” Minn. Stat. § 590.01, subd. 1(1) (2012).

The petitioner is entitled to an evidentiary hearing “[u]nless the petition and the files and

records of the proceeding conclusively show that the petitioner is entitled to no relief.”

Minn. Stat. § 590.04, subd. 1 (2012). An appellate court “review[s] a denial of a petition

for postconviction relief, as well as the denial of an evidentiary hearing, for an abuse of

discretion.” Rhodes v. State, 875 N.W.2d 779, 786 (Minn. 2016). The appellate court

“review[s] the postconviction court’s legal conclusions de novo and its findings of fact for

clear error.” Id.

       “No 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[.]” Minn. Stat.




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§ 590.01, subd. 4(a)(1) (2012). Madar concedes that his petition is untimely, but contends

that two exceptions to the time bar apply.

Newly discovered evidence

       A postconviction petition is not time-barred if (1) “the petitioner alleges the

existence of newly discovered evidence,” (2) the evidence “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,” (3) “the evidence is not cumulative

to evidence presented at trial,” (4) the evidence “is not for impeachment purposes,” and

(5) the evidence “establishes by a clear and convincing standard that the petitioner is

innocent of the offense . . . for which the petitioner was convicted.” Id., subd. 4(b)(2)

(2012). “All five criteria must be satisfied to obtain relief.” Riley v. State, 819 N.W.2d

162, 168 (Minn. 2012). In Roberts v. State, this court considered claims identical to those

raised here and concluded that the petitioner did not satisfy the second and fifth criteria—

due diligence and actual innocence. 856 N.W.2d 287, 291-92 (Minn. App. 2014), review

denied (Minn. Jan. 28, 2015).

       Regarding due diligence, this court stated that because the criminal complaint

“alleged that the crime lab analyzed the substance . . . and identified it as cocaine,” the

petitioner “knew that the charge against him was based on the crime lab’s test results.” Id.

at 291. This court stated that because the petitioner had access to the test results, he could

have challenged their reliability, but did not do so or claim that anyone prevented him from

doing so. Id.




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       Similarly, the criminal complaint here states that the “contents were submitted to

the [SPPDCL] where they [were] examined . . . and found [to be] positive for the presence

of cathinone.” Further, the state disclosed that it intended to offer a SPPDCL report at trial.

Madar could have challenged the reliability of the test results, but he did not because he

admitted that it was khat; his defense was that he did not know that it was illegal.

       To satisfy the actual-innocence criterion “the proffered evidence must be

unequivocal, intrinsically probable, and free from frailties.” Rhodes, 875 N.W.2d at 788.

In Roberts, this court stated that the petitioner failed to offer “evidence regarding the

chemical composition of the particular substance . . . . In fact, [the petitioner] . . . never

claimed [at any time] that the substance was not cocaine.” 856 N.W.2d at 291-92. This

court also stated that “there was nonscientific evidence of guilt.” Id. at 292.

       Here, Madar never claimed that he did not possess khat. The officer saw the bushel

of khat in the vehicle, which was admitted into evidence. Madar also admitted that he

chewed khat, and received it from his aunt who resides in England. As in Roberts, “the

evidence regarding the crime lab does not establish, under the clear-and-convincing

standard, that [Madar] is innocent.” See id. at 291. The district court did not abuse its

discretion by denying Madar’s petition for postconviction relief based on his claim of

newly discovered evidence.

Interests of justice

       “[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.’” Id. at 292 (quoting Minn. Stat. § 590.01, subd. 4(b)(5)). The interests-


                                               5
of-justice exception applies in exceptional cases in which 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 petitioner needs to be addressed, and if relief is

necessary to protect the integrity of judicial proceedings. Id.

          Madar argues that it would be fundamentally unfair to not address his petition

because he raises a Brady violation and a due-process violation relating to the SPPDCL

issues.

          This court rejected an interests-of-justice argument in Roberts, stating that the

petitioner was “at fault for his failure to discover the problems at the crime lab” because

he “had the opportunity to investigate the validity of the test results . . . [but] declined to

do so.” Id. at 293. This court further stated that “it is not fundamentally unfair to hold [the

petitioner] accountable for his choice to accept the state’s scientific evidence at face value,”

and that the discovery of testing issues at the SPPDCL did not “stem from a flaw in the

judicial process.” Id.

          The reasoning in Roberts applies here. Additionally, Madar fails to establish a

Brady violation because he did not establish that evidence relating to testing issues at the

SPPDCL would have been favorable to him or that the state knew about issues at the

SPPDCL and suppressed that evidence. See Walen v. State, 777 N.W.2d 213, 216 (Minn.

2010). Madar fails to establish a due-process violation because there is nothing in the

record suggesting that Madar was deprived of an opportunity to review the SPPDCL’s test

results or to conduct independent testing. See State v. Schwartz, 447 N.W.2d 422, 423, 427


                                               6
(Minn. 1989) (stating that to “ensure a fair trial, the test data and methodology must be

available for independent review by the opposing party”).            Moreover, there is no

fundamental unfairness here because Madar had a jury trial wherein the state presented the

scientific evidence and Madar’s attorney cross-examined the analyst. The district court did

not abuse its discretion by denying Madar’s petition for postconviction relief based on the

interests-of-justice exception to the two-year statute of limitations.

Ineffective assistance of counsel

       Finally, Madar argues that he received ineffective assistance of counsel because his

attorney failed to discover the deficiencies at the SPPDCL. To succeed on this claim,

Madar must show that his counsel’s representation fell below an objective standard of

reasonableness and that, but for counsel’s errors, there is a reasonable probability that the

outcome of the proceeding would have been different. Nissalke v. State, 861 N.W.2d 88,

94 (Minn. 2015). An attorney provides reasonable assistance when he exercises the

customary skills and diligence that a reasonably competent attorney would exercise under

similar circumstances. State v. Vang, 847 N.W.2d 248, 266-67 (Minn. 2014). Counsel’s

performance is presumed to be reasonable. Id. at 266.

       Madar’s defense was that he did not know that khat was illegal; thus, he fails to

show that he ever suggested to his attorney that he possessed anything other than khat. The

jury was instructed that in order to find Madar guilty, it would have to conclude that he

“knew or believed that the substance [he] possessed was a controlled substance.” There

was no challenge as to whether Madar possessed a controlled substance. Presenting this

defense, rather than challenging the composition of the controlled-substance evidence, is


                                              7
trial strategy, which this court generally does not review. See Opsahl v. State, 677 N.W.2d

414, 421 (Minn. 2004) (stating that “[t]he extent of counsel’s investigation is considered a

part of trial strategy,” which is generally not reviewable). The district court did not abuse

its discretion in denying postconviction relief based on Madar’s ineffective-assistance-of-

counsel claim.

Hearing

       Madar contends that he was entitled to an evidentiary hearing. “A postconviction

court may summarily deny a petition for postconviction relief when the petition is time

barred.” Wayne v. State, 866 N.W.2d 917, 919 (Minn. 2015) (quotation omitted). Madar’s

petition was untimely and he failed to show that either exception to the two-year statute of

limitations applies; thus, the district court did not abuse its discretion by declining to hold

an evidentiary hearing.

       Affirmed.




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