                          This opinion will be unpublished and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
                                      A14-2191

                           Fredrick Kemond Jackson, petitioner,
                                       Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed August 31, 2015
                                        Affirmed
                                   Rodenberg, Judge

                              Hennepin County District Court
                                File No. 27-CR-04-078840

Fredrick Kemond Jackson, Stillwater, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

       Considered and decided by Connolly, Presiding Judge; Rodenberg, Judge; and

Reyes, Judge.

                         UNPUBLISHED OPINION

RODENBERG, Judge

       Appellant Fredrick Kemond Jackson argues that the district court erred in denying

his petition for postconviction relief without an evidentiary hearing, and also argues that

his due process rights were violated, his stipulated-facts trial was invalid, and the district
court’s failure to provide an accomplice instruction to the jury at his first trial constitutes

reversible error in his second trial to the court on stipulated facts. We affirm.

                                           FACTS

       On June 17, 2005, appellant was convicted of first-degree murder for his

participation in a robbery and murder of a store clerk on October 21, 2004. Appellant

appealed to the Minnesota Supreme Court, and the supreme court affirmed his

conviction. State v. Jackson, 726 N.W.2d 454 (Minn. 2007).

       Over the next several years, appellant filed several postconviction petitions. On

November 28, 2007, he petitioned the court for postconviction relief based on newly

discovered evidence, including allegations of perjury, but later withdrew that petition.

On January 15, 2009, appellant petitioned the district court for postconviction relief, but

the district court denied the petition on May 1, 2009. On June 4, 2009, appellant again

petitioned the district court for postconviction relief, and the district court granted

appellant an evidentiary hearing by order dated April 1, 2010.

       Settlement discussions between appellant and the state resulted in an agreement

whereby the district court would vacate appellant’s conviction for first-degree murder,

the state would amend the charge to aiding and abetting intentional second-degree murder

in violation of Minn. Stat. § 609.19, subd. 1 (2004), the amended charge would be tried to

the court on stipulated facts, and, if convicted, appellant would be sentenced to 324

months in prison. The district court, which had presided over the original first-degree

murder jury trial, “reviewed the transcripts of [appellant’s jury] trial several times in

considering [appellant]’s post-conviction petition,” and issued a written order finding


                                              2
appellant guilty of aiding and abetting intentional second-degree murder, sentencing him

to 324 months in prison.

       On January 25, 2011, appellant again petitioned the district court for

postconviction relief, alleging that newly discovered evidence after his court trial on

stipulated facts warranted an evidentiary hearing. The district court denied the petition,

and appellant appealed the district court’s denial to our court. We dismissed the appeal

for procedural deficiencies.

       On March 20, 2012, appellant once again petitioned the district court for an

evidentiary hearing, and again claimed to have newly discovered evidence.           In his

petition, appellant asserted that he had a new witness, D.S., whose testimony would prove

that a trial witness, K.W., recanted her trial testimony and that another individual, L.K.,

and not appellant, was involved in the murder. An affidavit from D.S. was attached to

the petition. Appellant supplemented his petition with affidavits from R.L. and S.A.-A.

These affidavits included claims that another trial witness, D.P., had recanted. Based on

the affidavits, and assuming them to be true, the district court granted the request for an

evidentiary hearing on December 20, 2012.

       After the district court granted the evidentiary hearing, the state investigated the

claims made by appellant and the affiants.       As a result of this investigation, R.L.

withdrew his affidavit and, on November 20, 2013, was charged with perjury and

conspiracy to commit perjury.       Minneapolis Police Department (MPD) personnel

interviewed D.P., who “stated that associates of [appellant] have been contacting her to

try to make her sign an affidavit recanting her trial testimony and accusing L.K.” D.P.


                                            3
confirmed the accuracy of her trial testimony to MPD personnel. D.S. also provided a

new affidavit stating that “[t]he information in the 8/24/11 affidavit that I gave to

[appellant] was false” and that the information in the affidavit “was prepared by

[appellant] and given to me.” D.S. further stated that he “did not witness any planning of

the robbery or anything else on the night of the murder.” S.A.-A. was charged with four

criminal counts related to the affidavit he provided for appellant, and he later pleaded

guilty to one count of forgery.

       Based on the investigation revealing that the affidavits of D.S., R.L., and S.A.-A.

provided in support of appellant’s petition to have been false, the state requested that the

district court find that appellant abused the legal process, an affirmative defense to

appellant’s postconviction petition. The state noted that abuse-of-process claims are

typically raised in the context of “inexcusable delay in asserting a claim for relief,” but

argued that appellant’s actions “still warrant[] a finding of abuse of process” because

appellant fraudulently used the judicial process to reverse his “lawfully obtained

conviction.”1

       On October 20, 2014, the district court vacated its December 2012 order granting

appellant an evidentiary hearing, stating that appellant’s “case has evaporated” and that it

was “no longer reasonably certain that any alleged recantations . . . are genuine; indeed


1
  The state submitted several memoranda to support its pleading of abuse of process as
the investigation into appellant’s conduct proceeded. In its second supplemental
memorandum, the state observed that appellant was charged with bribery and accomplice
after the fact for his participation in a “concerted criminal plan” to assist another
individual “to bribe, threaten, or coerce” witnesses to recant for purposes of the other
individual’s postconviction petition.

                                             4
the [district] court is reasonably certain that there have been no genuine recantations.”

The district court also concluded that appellant abused the legal process in the

postconviction proceedings and that “[i]t is hard to conceive of a more blatant way to

manipulate the process improperly to obtain an advantage.” The district court determined

that the abuse-of-process finding “provides an independent basis for summary dismissal”

of appellant’s petition.

       In its order denying postconviction relief, the district court declined to consider a

reply memorandum submitted by appellant, stating that it was not timely filed and “it

would not change this result as the Petition has been dismissed for [appellant]’s abuse of

process” and stating that appellant’s “new motions for discovery and to expand the scope

of the hearing once again are moot and therefore denied.” The district court closed its

order as follows:       “This Order and Memorandum are intended to dispose of all

outstanding matters related to Petitioner’s latest petition for post-conviction relief. Any

matters or requests stated by the parties not addressed herein are denied.” This appeal

followed.

                                         DECISION

       In a pro se brief, appellant raises several arguments on appeal. After careful

review of appellant’s pro se brief, we discern his legal arguments to be: that the district

court erred in denying his most recent petition for postconviction relief; that his due

process rights were violated; that his 2010 stipulated-facts trial was invalid; and, that the

failure of the district court to instruct the jury concerning accomplice testimony in his

first trial resulted in error in his second trial to the court.


                                                 5
   I.       District court denial of postconviction relief

         Appellant challenges the district court’s denial and dismissal of his postconviction

petition, claiming that newly discovered evidence demonstrating his innocence warrants

an evidentiary hearing.

         “When reviewing a postconviction court’s decision, we examine only whether the

postconviction court’s findings are supported by sufficient evidence. We will reverse a

decision of the postconviction court only if that court abused its discretion.” Lussier v.

State, 821 N.W.2d 581, 588 (Minn. 2012) (quotations and citation omitted).                “A

postconviction court abuses its discretion when its decision is based on an erroneous view

of the law or is against logic and the facts in the record.” Riley v. State, 819 N.W.2d 162,

167 (Minn. 2012) (quotations omitted).             We “afford great deference” to the

postconviction court’s factual findings and review for clear error. Carlton v. State, 816

N.W.2d 590, 599 (Minn. 2012) (quotation omitted).

         Appellant has the burden to establish the facts alleged in the postconviction

petition “by a fair preponderance of the evidence.” Minn. Stat. § 590.04, subd. 3 (2014).

The district court must grant a 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 (2014). “A postconviction court is required to hold an evidentiary

hearing only when there are disputed material facts that must be resolved to determine the

merits of the postconviction claims.” Vance v. State, 752 N.W.2d 509, 512-13 (Minn.

2008).




                                              6
       In order to obtain relief based on newly discovered evidence, an appellant must

show that the evidence (1) was not known to his counsel at the time of trial; (2) could not

have been discovered through due diligence; (3) is not cumulative, impeaching, or

doubtful; and (4) would probably produce an acquittal or a more favorable result. Wright

v. State, 765 N.W.2d 85, 93-94 (Minn. 2009).

       The district court concluded that appellant submitted “no credible evidence that

would have produced a different result in this case.” The record supports the district

court’s determination.

       The affidavits appellant submitted to support his petition were definitively

discredited. R.L. withdrew his affidavit and was charged with perjury and conspiracy to

commit perjury. D.P. confirmed the accuracy of her trial testimony to MPD personnel.

D.S. submitted a new affidavit stating that “[t]he information in the 8/24/11 affidavit that

I gave to [appellant] was false.” S.A.-A. pleaded guilty to forgery. Appellant was also

convicted of two counts of forgery relating to his procurement of the affidavits. Because

the affidavits appellant submitted were thoroughly discredited, the district court properly

determined that the record “conclusively show[s] that [appellant] is entitled to no relief,

and no hearing is warranted.”2 Because the affidavits were proved false, and because it



2
  Appellant argues on appeal that witnesses were coerced and threatened, and that those
witnesses who were in prison were placed in segregation as punishment and to coerce
them into plea deals with the state. Appellant does not cite or reference any evidence to
support these claims and we find none in the record, and we therefore do not address
those arguments. See State v. Wembley, 712 N.W.2d 783, 795 (Minn. App. 2006) (“An
assignment of error in a brief based on ‘mere assertion’ and not supported by argument or
authority is waived unless prejudicial error is obvious on mere inspection.” (quoting State

                                             7
“is reasonably certain that there have been no genuine recantations,” the district court’s

original basis for granting the petition dissolved. The district court did not err in denying

this postconviction petition without an evidentiary hearing.

   II.      Due process arguments

         Appellant argues on appeal that his due process rights were violated when the

district court dismissed his petition because the “unexpected withdrawal of the defense

witnesses” resulting from the state’s “intimidation” and “threats” to appellant’s potential

witnesses rendered him unable to present his defense. Appellant’s claim is without merit.

         “No person shall be held to answer for a criminal offense without due process of

law.” Minn. Const. art. I, § 7. “Due process requires only that every defendant be

afforded a meaningful opportunity to present a complete defense.” Carlton, 816 N.W.2d

at 614 (quotation omitted). “Whether due process is required in a particular case is a

question of law, which we review de novo.” Carrillo v. Fabian, 701 N.W.2d 763, 768

(Minn. 2005).

         “[T]he United States Constitution does not guarantee a right to an appeal under

the Due Process Clause of the Fourteenth Amendment.” Carlton, 816 N.W.2d at 611;

accord McKane v. Durston, 153 U.S. 684, 687, 14 S. Ct. 913, 915 (1894). Nor does the

United States Constitution require states to provide for postconviction relief.

Pennsylvania v. Finley, 481 U.S. 551, 556-57, 107 S. Ct. 1990, 1993-94 (1987).

Minnesota law provides for postconviction relief by statute. See Minn. Stat. § 590.01-.11


v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997))), aff’d on other
grounds, 728 N.W.2d 243 (Minn. 2007).

                                             8
(2014). See also Deegan v. State, 711 N.W.2d 89, 93 (Minn. 2006) (observing that

Minnesota’s postconviction relief statute “provides broader grounds for relief” than is

required by federal constitutional law).

       Appellant argues that his due process rights were violated because he was not able

to present his chosen witnesses. But appellant has no due process right to present false

information to the postconviction court.          The record supports the district court’s

determination that the affidavits were not credible, and appellant has no “due process”

right to present discredited and perjured testimony in an attempt to perpetrate a fraud on

the court.

   III.      Alleged procedural errors at trial

       Appellant challenges on appeal, for the first time, that his 2010 stipulated-facts

trial was invalid “because the stipulated evidence included disputed facts.” The state

argues that appellant is barred from raising this claim for the first time on appeal, more

than two years after his conviction.

       “No petition for postconviction relief may be filed more than two years after . . .

the entry of judgment of conviction.” Minn. Stat. § 590.01, subd. 4(a)(1); see also

Carlton, 816 N.W.2d at 616 (holding statutory time limit on postconviction petitions are

reasonable restrictions). Appellate courts “generally will not decide issues which were

not raised before the district court, including constitutional questions of criminal

procedure.” Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).

       After careful review of the record, we agree with the state that appellant raised this

argument for the first time on appeal, and more than two years after entry of his


                                             9
conviction.3 See Staunton v. State, 842 N.W.2d 3, 6-7 (Minn. 2014). His appeal was

filed on December 22, 2014, more than two years after his December 22, 2010 conviction

after a stipulated-facts trial. Appellant’s claim is time-barred by Minn. Stat. § 590.01,

subd. 4(a)(1), and we decline to address arguments not raised before and considered by

the district court. See Roby, 547 N.W.2d at 357.4

    IV.      Accomplice-testimony instruction

          Appellant argues that the district court, in his first trial, erroneously failed to

instruct the jury concerning accomplice testimony and that the evidence at his later

stipulated-facts trial was insufficient to support a finding of guilt.

          The challenged omission of an accomplice-testimony instruction was first raised

by appellant in his direct appeal after his first-degree murder conviction. The supreme

court concluded that the district court’s failure to give an accomplice-instruction to the

jury was harmless error. Jackson, 726 N.W.2d at 461-62. The evidence at the 2010

stipulated-facts trial was the identical evidence reviewed by the supreme court in the

direct appeal from the first-degree murder conviction.

          Upon careful review of the record, we conclude that appellant did not properly and

timely present this argument to the district court, and it is therefore not properly before

3
  We interpret appellant’s assertion that the district court concluded that his arguments
were Knaffla-barred to refer to the district court’s previous denial of an earlier
postconviction petition filed on January 25, 2011. Appellant did not raise this argument
in his present petition. He did raise this in his reply memorandum, but the district court
concluded that the memorandum was filed late and it would not be considered.
4
  Even if we were to address appellant’s arguments on the merits, the district court
reviewed the stipulated evidence in the 2010 court trial, made written findings, found
appellant guilty, and sentenced appellant to the 324-month term he negotiated with the
state in his settlement discussions.

                                              10
us. Roby, 547 N.W.2d at 357. Appellant’s 2012 petition for postconviction relief made

passing reference to the issue, but appellant did not brief it or identify how this error in an

earlier jury trial prejudiced him in this negotiated court trial after the earlier jury

conviction was vacated. Even if we were to address appellant’s argument on the merits,

the supreme court has already concluded on direct appeal from the earlier jury verdict

that any error was harmless, based upon the same evidence used in appellant’s stipulated-

facts trial.

        Similarly, appellant’s challenge to the sufficiency of the evidence supporting his

conviction fails, as the same evidence was used in his first trial and was previously

reviewed by the supreme court and found sufficient. The supreme court concluded that

corroborating evidence against appellant was “quite strong” and concluded that this

supported a conclusion that the failure to provide an accomplice instruction was harmless

error. Jackson, 726 N.W.2d at 461-62.

        We have fully considered appellant’s legal arguments in his pro se brief and

conclude they are without merit. The district court did not err in denying appellant

postconviction relief.

        Affirmed.




                                              11
