                               STATE OF MINNESOTA

                                   IN SUPREME COURT

                                       A15-1401

Hennepin County                                                                Stras, J.

Jerome Emmanuel Davis,

                      Appellant,

vs.                                                               Filed: June 15, 2016
                                                             Office of Appellate Courts
State of Minnesota,

                      Respondent.

                              ________________________


Jerome Emmanuel Davis, Stillwater, Minnesota, pro se.

Lori Swanson, Attorney General, Saint Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Jean Burdorf, Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

                              ________________________

                                     SYLLABUS

      The appellant’s claims are procedurally barred under State v. Knaffla, 309 Minn.

246, 243 N.W.2d 737 (1976).

      Affirmed.

      Considered and decided by the court without oral argument.




                                          1
                                         OPINION

STRAS, Justice.

          Appellant Jerome Emmanuel Davis appeals the postconviction court’s summary

denial of his petition for postconviction relief. Because we conclude that Davis’s claims

are procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), we

affirm.

                                               I.

          On May 11, 2007, police officers found Armando Calix lying on the lawn outside

of his apartment. Calix had been shot in the neck, which led to his death. After conducting

an investigation, officers suspected that either Davis or another individual, Toriano

Dorman, had killed Calix during an aggravated robbery. Following a jury trial, the district

court convicted Davis of first-degree felony murder, see Minn. Stat. §§ 609.185(a)(3);

609.05, subd. 1 (2014), and sentenced him to life in prison. Davis filed a direct appeal of

his conviction.

          On direct appeal, Davis argued that the district court erred when it: (1) failed to

suppress a statement that Davis had made to police officers during a custodial interrogation;

(2) did not admit certain hearsay evidence; (3) allowed a witness for the State, Jovan

Gentle, to testify about the fear he felt after cooperating with the police; and (4) gave a

“no-adverse-inference” jury instruction. State v. Davis, 820 N.W.2d 525, 533 (Minn.

2012). Davis additionally asserted that the cumulative effect of those errors deprived him

of a fair trial. Id. Davis also filed a pro se supplemental brief and a pro se reply brief.

Those briefs raised multiple other alleged errors, including that: (1) the State violated the


                                               2
Fifth and Sixth Amendments to the United States Constitution when it deported two

potential witnesses; (2) the State’s peremptory strike of a minority juror violated Batson v.

Kentucky, 476 U.S. 79 (1986); and (3) Gentle, who testified against Davis, gave false

testimony before the grand jury and at trial. Davis also argued that there were various

violations of his right to due process, including the fact that another individual (Toriano

Dorman) had already pleaded guilty to the same crime; the admission of uncorroborated

accomplice testimony and the failure to give an accomplice-corroboration instruction at

trial; and various Giglio, Brady, and Scales violations. 1 Finally, Davis asserted claims of

prosecutorial misconduct and ineffective assistance of trial counsel. We affirmed Davis’s

conviction in an opinion filed on September 19, 2012. Davis, 820 N.W.2d at 528.

       Davis then filed a petition for a writ of habeas corpus in federal district court in

September 2013. See Davis v. Grandlienard, Civil No. 13-24449(DSD/JJK), 2015 WL

1522186, at *1 (D. Minn. Mar. 31, 2015). Davis asserted many of the same claims that he

had raised on direct appeal. See id. at *1-6. The federal district court dismissed Davis’s

petition with prejudice. Id. at *6. However, the district court granted a certificate of

appealability on the question of whether the admission of Davis’s statement to police was

harmless error. Id. at *6. Davis’s appeal on this question is still pending before the United

States Court of Appeals for the Eighth Circuit.



1
       See Giglio v. United States, 405 U.S. 150 (1972) (requiring the prosecution to
disclose evidence that may be used to impeach the credibility of a witness); Brady v.
Maryland, 373 U.S. 83 (1963) (requiring the prosecution to disclose material exculpatory
evidence upon request); State v. Scales, 518 N.W.2d 587 (Minn. 1994) (requiring all
custodial interrogations at a place of detention to be recorded).


                                             3
       More than 2 years after we decided his direct appeal, in mid-December 2014, Davis

filed a motion for an extension of time to file his postconviction petition, citing Minn. Stat.

§ 590.03 (2014) in support of the motion. The postconviction court granted a 6-month

extension. 2 Davis filed his petition for postconviction relief, his first, in April 2015, before

the extension expired. In the petition, Davis sought an evidentiary hearing, vacation of his

sentence, and/or a new trial based on 15 claims. In a supplemental motion, Davis also

asked the postconviction court to remedy an alleged factual error in our opinion from his

direct appeal. The postconviction court summarily denied the petition, concluding that it

was procedurally barred under State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976).

The postconviction court also denied Davis’s request to correct our opinion, holding that

the error, if any, was immaterial. Davis appeals the postconviction court’s summary denial

of his petition for postconviction relief.

                                               II.

       We review the “denial of a petition for postconviction relief, as well as a request for

an evidentiary hearing, for an abuse of discretion.” Riley v. State, 819 N.W.2d 162, 167

(Minn. 2012). In doing so, we review the postconviction court’s underlying factual

findings for clear error and its legal conclusions de novo. Williams v. State, 869 N.W.2d

316, 318 (Minn. 2015).



2
        On appeal, the State does not contest the grounds on which the postconviction court
granted a 6-month extension to Davis to file his postconviction petition or argue that
Davis’s petition did not satisfy the statute of limitations under Minn. Stat. § 590.01, subd.
4 (2014). Therefore, we need not decide whether Minn. Stat. § 590.03 gives authority to
postconviction courts to grant extensions of time beyond the expiration of the statute of
limitations or whether Davis’s petition was timely filed.

                                               4
       A postconviction court may deny a petition for postconviction relief without holding

an evidentiary hearing if the petition, files, and records in the proceeding conclusively

establish that the petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2014).

Accordingly, if a petitioner’s claims are untimely under the postconviction statute of

limitations, Minn. Stat. § 590.01, subd. 4(a) (2014), or procedurally barred under State v.

Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976), then the postconviction court may

summarily deny the petition. Colbert v. State, 870 N.W.2d 616, 622 (Minn. 2015).

       On appeal, Davis argues that he is entitled to relief on the 15 claims he raised in his

postconviction petition, each of which the postconviction court determined was

procedurally barred. The claims can be placed into four categories: evidentiary decisions

by the district court, purported procedural defects, constitutional claims, and allegedly

prejudicial misconduct by the State. The evidentiary claims include allegations that the

district court erred when it: (1) failed to suppress Davis’s statements to police from a

custodial interrogation; (2) allowed a witness, Jovan Gentle, to testify about his fear;

(3) excluded two witness statements, which the district court concluded were inadmissible

hearsay; (4) allowed Gentle to testify falsely before the grand jury and at trial; and (5)

admitted uncorroborated accomplice testimony and failed to give an accomplice-

corroboration instruction.

       Davis identifies the following purported procedural defects as well: (6) the failure

to give a “no-adverse-inference” jury instruction and (7) allowing the jury to listen to

prejudicial audio recordings during jury deliberations.       Davis’s constitutional claims

include: (8) an alleged Batson violation by the State in striking a minority juror;


                                              5
(9) violation of the Fifth and Sixth Amendments to the United States Constitution when

the State deported two potential witnesses favorable to the defense; (10) allowing another

individual (Toriano Dorman) to plead guilty to the same crime; (11) various Giglio, Brady,

and Scales violations; (12) a claim that there was insufficient evidence in the record to

support his conviction for first-degree felony murder; and (13) ineffective assistance of

counsel. Davis also argues that (14) the State committed prosecutorial misconduct.

Finally, Davis contends that (15) the cumulative effect of the errors entitle him to a new

trial. As the postconviction court concluded, each of Davis’s claims is procedurally barred

by the Knaffla rule.

       “The Knaffla rule provides that when a petition for postconviction relief follows a

direct appeal of a conviction, all claims raised in the direct appeal and all claims of which

the defendant knew or should have known at the time of the direct appeal are procedurally

barred.” Buckingham v. State, 799 N.W.2d 229, 231 (Minn. 2011); see also Knaffla, 309

Minn. at 252, 243 N.W.2d at 741 (holding that, once a direct appeal has been taken, “all

matters raised therein, and all claims known but not raised, will not be considered upon a

subsequent petition for postconviction relief”); Minn. Stat. § 590.01, subd. 1 (2014) (“A

petition for postconviction relief after a direct appeal has been completed may not be based

on grounds that could have been raised on direct appeal of the conviction or sentence.”).

       There are, however, two exceptions to the Knaffla rule. A postconviction court

should consider a claim if it is “(1) an issue so novel that its legal basis was not reasonably

available at the time of the direct appeal, or (2) in the interest[s] of justice—when fairness

so requires and the petitioner did not deliberately and inexcusably fail to raise the issue on


                                              6
direct appeal.” Quick v. State, 757 N.W.2d 278, 280 (Minn. 2008). We have yet to decide

whether these exceptions survive the 2005 amendment to Minn. Stat. § 590.01, subd. 1.

Act of June 2, 2005, ch. 136, art. 14, § 12, 2005 Minn. Laws 901, 1097; see Williams, 869

N.W.2d at 318 n.2; Hooper v. State, 838 N.W.2d 775, 788 n.2 (Minn. 2013); Berkovitz v.

State, 826 N.W.2d 203, 210 n.3 (Minn. 2013).

       Applying Knaffla to Davis’s petition, 13 of the 15 claims are duplicate claims that

Davis raised on direct appeal. Because we addressed each of those claims in Davis’s direct

appeal, they are “undoubtedly Knaffla-barred.” 3 See Buckingham, 799 N.W.2d at 232.

The only two “new” claims are Davis’s insufficiency-of-the-evidence claim and his claim

that the district court erred when it allowed the jury to listen to prejudicial audio recordings

during jury deliberations. Because Davis’s arguments in support of both of these claims

are based on the trial-court record, however, the claims were or should have been known

to him at the time of his direct appeal. See id. at 231; Knaffla, 309 Minn. at 252, 243

N.W.2d at 741. Therefore, these claims are procedurally barred unless an exception to the

Knaffla rule applies.

       Davis argues that we should consider these two claims in the interests of justice

because, as a pro se party, he was not aware of them at the time of his direct appeal. We


3
       Under the postconviction statute, a postconviction court “may summarily deny a
second or successive petition for similar relief on behalf of the same petitioner and may
summarily deny a petition when the issues raised in it have previously been decided by the
Court of Appeals or the Supreme Court.” Minn. Stat. § 590.04, subd. 3 (2014). However,
“[b]ecause the State has failed to assert the applicability of [this provision] in this case, we
express no opinion about whether it provides independent support for the postconviction
court’s decision to summarily deny [Davis’s petition].” Hooper, 838 N.W.2d at 788 n.3
(discussing Minn. Stat. § 590.04, subd. 3). Indeed, the postconviction court did not rely
on Minn. Stat. § 590.04, subd. 3, when it summarily denied Davis’s petition.

                                               7
need not decide whether the Knaffla exceptions apply under Minn. Stat. § 590.01, subd. 1,

because Davis cannot satisfy either one. See Nissalke v. State, 861 N.W.2d 88, 94 n.4

(Minn. 2015) (declining to address whether the Knaffla exceptions survive the 2005

amendments to Minn. Stat. § 590.01, subd. 1, because neither exception applied in

petitioner’s case). Davis has not argued that his claims are novel, and he cannot satisfy the

interests-of-justice exception.

       “To be reviewed in the interests of justice, a claim must have merit and be asserted

without deliberate or inexcusable delay.” Wright v. State, 765 N.W.2d 85, 90 (Minn.

2009). In this case, Davis “has not presented a colorable explanation of why he failed to

raise these claims previously.” Perry v. State, 731 N.W.2d 143, 147 (Minn. 2007). Davis

filed two pro se briefs on direct appeal, in which he raised eight legal claims spanning more

than 100 pages of briefing and attached 31 exhibits. Such detailed briefing demonstrated

Davis’s familiarity with the trial record. Accordingly, Davis’s two “new” claims are also

procedurally barred.

                                              III.

       Davis also appeals the denial of his supplemental motion to correct our opinion from

his direct appeal. According to Davis, we made a factual error when we stated that a person

identified as “Fifty” rode in Davis’s car before the murder. Our opinion stated: “According

to Gentle, Davis had two passengers [in his car at the time]: a person he identified as ‘Fifty,’

and Toriano Dorman.” Davis, 820 N.W.2d at 528. Davis argues that the testimony from

trial does not support this statement.




                                               8
       We decline to address Davis’s argument for two reasons. First, Davis did not use

the proper procedure to correct the alleged error. The Minnesota Rules of Civil Appellate

Procedure require a party to file a petition for rehearing to correct “any material

question[s]” we have “misapplied or misconceived.” See Minn. R. Civ. App. P. 140.01. It

is undisputed that Davis did not do so, and the time to file a petition for rehearing has now

passed. Id. (“A petition for rehearing in the Supreme Court may be filed within 10 days

after the filing of the decision or order unless the time is enlarged by order of the Supreme

Court within a 10-day period.”). Second, even if Davis had timely raised the alleged error

in a petition for rehearing, he has not persuasively explained why the alleged factual error

is “material” such that it would alter our review of his postconviction claims or have

affected the outcome of his direct appeal. Id. Accordingly, we reject Davis’s request to

modify our opinion from his direct appeal.

                                             IV.

       For the foregoing reasons, we conclude that the postconviction court did not abuse

its discretion when it summarily denied relief to Davis.

       Affirmed.




                                             9
