                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A15-2096

Hennepin County                                                                  Gildea, C.J.

Derrick Delmar Brocks,

                      Appellant,

vs.                                                                  Filed: August 10, 2016
                                                                  Office of Appellate Courts
State of Minnesota,

                      Respondent.

                               ________________________


Derrick Delmar Brocks, Stillwater, Minnesota, pro se.

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

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

                               ________________________


                                      SYLLABUS

       Because appellant’s postconviction petition was untimely and failed to satisfy any

exception to the postconviction statute of limitations, the postconviction court did not abuse

its discretion in summarily denying appellant relief.

       Affirmed.

       Considered and decided by the court without oral argument.



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                                         OPINION

GILDEA, Chief Justice.

       Appellant Derrick Delmar Brocks appeals from the summary denial of his petition

for postconviction relief, filed under Minn. Stat. § 590.01, subd. 1 (2014).                 The

postconviction court concluded that Brocks’s petition was both untimely and procedurally

barred. Because the record conclusively establishes that Brocks’s postconviction petition

is untimely, we affirm.

       Following a jury trial, the Hennepin County District Court convicted Brocks of first-

degree premeditated murder for the shooting death of James Nunn.1 The district court

sentenced Brocks to life imprisonment without the possibility of release. On direct appeal,

Brocks argued, among other things, that the court abused its discretion by denying his

request to instruct the jury on the lesser-included offense of manslaughter in the first

degree. State v. Brocks (Brocks I), 587 N.W.2d 37, 39 (Minn. 1998). In a supplemental

pro se brief, Brocks raised a number of additional issues, including a claim that he received

ineffective assistance of trial counsel due to a conflict of interest based on his trial counsel’s

past relationship with the victim’s father. Id. at 39, 43-44. We affirmed Brocks’s

conviction. Id. at 44.

       In 2007, Brocks filed his first petition for postconviction relief. In that petition,

Brocks reasserted that his trial counsel was ineffective due to a conflict of interest. In



1
       We fully discussed the facts supporting Brocks’s conviction on direct appeal. State
v. Brocks (Brocks I), 587 N.W.2d 37, 38-40 (Minn. 1998). We recount here only those
facts pertinent to this appeal.

                                                2
addition, Brocks argued that his appellate counsel was ineffective because our court used

the wrong “standard of review” to evaluate his conflict-of-interest claim.

       The postconviction court summarily denied relief, and we affirmed. Brocks v. State

(Brocks II), 753 N.W.2d 672, 673 (Minn. 2008). Having previously rejected the conflict-

of-interest claim in Brocks I as being unsupported by the record, we concluded that the

claim was Knaffla barred and that neither of the Knaffla exceptions applied. Id. at 675-76.

Next, we rejected the ineffective-assistance-of-appellate-counsel claim, reasoning that

Brocks failed to present any facts that would support the alleged conflict of interest and,

consequently, appellate counsel had no obligation to pursue that meritless claim. Id. at

676-77. Finally, we declined to consider Brocks’s claim that his trial counsel was

ineffective for failing “to promptly communicate his acceptance of an alleged offer” from

the State to plead guilty to a reduced charge, because Brocks forfeited that claim by failing

to raise it before the postconviction court. Id. at 676.

       Brocks filed two more postconviction petitions in 2010 and 2013. In both petitions,

he argued that his trial counsel was ineffective for failing to timely communicate Brocks’s

acceptance of the State’s alleged offer to plead guilty to a reduced charge.             The

postconviction court denied each petition.

       On July 16, 2015, Brocks filed the present petition for postconviction relief. In this

petition, Brocks again argued that his Sixth Amendment right to effective assistance of trial

counsel was violated due to a conflict of interest and that we applied the wrong precedent

in assessing this claim during his direct appeal. According to Brocks, precedent regarding

“per se conflicts of interest,” not conflicts arising from mutual or joint representation, was


                                              3
applicable to his claim. He also argued that an evidentiary hearing was required to allow

him to establish that his trial counsel had a per se conflict of interest.

       The postconviction court summarily denied the petition as both untimely and

procedurally barred. The court concluded that Brocks failed to file his petition by the

deadline in Minn. Stat. § 590.01, subd. 4(a). Adopting a liberal construction of the petition,

the court determined that the petition sufficiently invoked the interests-of-justice exception

to the statute of limitations. See id. But the court concluded that the petition did not satisfy

that exception. The court also held, in the alternative, that our rule in State v. Knaffla,

309 Minn. 246, 243 N.W.2d 737 (1976), and its recent statutory counterparts, Minn. Stat.

§§ 590.01, subds. 1, 3 (2014), barred the petition.2 This appeal follows.

       On appeal, Brocks argues that his petition was not untimely and that the Knaffla rule

does not bar the petition. The State contends, for its part, that we should affirm the

postconviction court’s determinations that the petition was untimely filed and that the

Knaffla rule bars the petition. We review the denial of postconviction relief for an abuse

of discretion. Francis v. State, 829 N.W.2d 415, 419 (Minn. 2013). The postconviction


2
        The Knaffla rule provides that “[o]nce a direct appeal has been taken, all claims that
were raised in the direct appeal and all claims that were known or should have been known
but were not raised will not be considered upon a subsequent petition for postconviction
relief.” White v. State, 711 N.W.2d 106, 109 (Minn. 2006) (citing Knaffla, 309 Minn. at
252, 243 N.W.2d at 741). The postconviction statute now similarly provides that “[t]he
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 in the same case.”
Minn. Stat. § 590.04, subd. 3 (2014). Furthermore, Minn. Stat. § 590.01, subd. 1, states
that “[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.”

                                               4
statute provides that an evidentiary hearing need not be granted if the files and records of

the postconviction proceeding conclusively establish that the petitioner is not entitled to

relief. Minn. Stat. § 590.04, subd. 1 (2014). We have accordingly recognized that a

postconviction court may summarily deny a claim that is untimely or procedurally barred.

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

                                               I.

       We turn first to the postconviction court’s determination that Brocks’s petition must

be dismissed because it was filed after the statute of limitations in the postconviction statute

had expired. In general, a petition for postconviction relief is untimely if it is filed “more

than two years after 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.”

Minn. Stat. § 590.01, subd. 4(a). For convictions that became “final” prior to August 1,

2005—the date that the postconviction statute of limitations first took effect—the

Legislature provided an additional 2-year period in which to file a petition. See Stewart v.

State, 764 N.W.2d 32, 34 (Minn. 2009) (citing Act of June 2, 2005, ch. 136, art. 14, § 13,

1999 Minn. Laws 901, 1097-98). Brocks’s conviction became final in March of 1999,

90 days after the disposition of his direct appeal in December of 1998, Brocks I,

587 N.W.2d at 44. See Berkovitz v. State, 826 N.W.2d 203, 207 (Minn. 2013) (explaining

that a conviction becomes “final” 90 days after our disposition on direct appeal if no writ

of certiorari is filed with the United States Supreme Court). Because Brocks’s conviction

became final before August 1, 2005, he had until August 1, 2007 to file the present petition.

Brocks filed this petition on July 16, 2015, nearly 8 years past the deadline. Brocks’s


                                               5
petition is therefore untimely absent an applicable exception to the statute of limitations.

See Minn. Stat. § 590.01, subd. 4(b) (listing exceptions to the statute of limitations).

       To satisfy an exception to the statute of limitations, the petitioner must: (1) invoke

an exception in the petition; (2) satisfy the terms of that exception; and (3) file the petition

properly invoking the exception within 2 years of the date that the claimed exception arose.

Rickert v. State, 795 N.W.2d 236, 241-42 (Minn. 2011) (citing Minn. Stat. § 590.01, subd.

4(b)-(c)). Liberally construing the petition, the postconviction court summarily concluded

that Brocks sufficiently invoked the interests-of-justice exception in Minn. Stat. § 590.01,

subd. 4(b)(5). See Minn. Stat. § 590.03 (2014) (requiring that the court “liberally construe”

postconviction petitions); Rickert, 795 N.W.2d at 241 (explaining that a specific citation to

the statute is not necessary to invoke an exception, but can be implied from the statement

of facts and the grounds upon which the petition is based). We need not decide whether

the postconviction court was correct in its liberal construction of the petition because

Brocks fails to satisfy the exception in any event.

       The interests-of-justice exception requires that the petition not be “frivolous,” and

that its belated consideration be in the “interests of justice.” Wallace v. State, 820 N.W.2d

843, 849 (Minn. 2012); see also Minn. Stat. § 590.01, subd. 4(b)(5) (requiring that the

petitioner establish “to the satisfaction of the court that the petition is not frivolous and is

in the interests of justice”). If either of those requirements is not met, the interests-of-

justice exception is not satisfied. Wallace, 820 N.W.2d at 849.

       A petition is “frivolous” for purposes of the interests-of-justice exception, “if it is

perfectly apparent, without argument, that the petition is without merit.”             Rickert,


                                               6
795 N.W.2d at 241 (quoting Gassler v. State, 787 N.W.2d 575 (Minn. 2010)). We have

recognized that a petition is frivolous if it is procedurally barred. Wallace, 820 N.W.2d at

850.

       Brocks’s petition is frivolous because it is procedurally barred. It is plain that the

claim raised in this fourth successive postconviction appeal, which was both known and

raised in Brocks’s direct appeal and in his first postconviction appeal, is procedurally

barred under Knaffla, 309 Minn. at 252, 243 N.W.2d at 741. Our case law recognizes two

exceptions to the Knaffla bar. See, e.g., McKenzie v. State, 754 N.W.2d 366, 369 (Minn.

2008).3 But Brocks did not raise either exception in the postconviction court. Brocks has,

therefore, forfeited any contention that either exception applies. See Schleicher v. State,

718 N.W.2d 440, 445 (Minn. 2006).4




3
        We have yet to decide whether the two exceptions to the Knaffla bar remain viable
after the codification of the statutory counterparts. See, e.g., Colbert, 870 N.W.2d at 626
n.9. It is likewise not necessary to resolve that question in this case because, as explained
below, Brocks has forfeited any contention that either Knaffla exception applies.
4
       On appeal, Brocks argues that the second exception to the Knaffla bar operates here.
This exception applies “as fairness requires when the claim has substantive merit and the
petitioner did not deliberately and inexcusably fail to raise the issue in the direct appeal.”
Colbert, 870 N.W.2d at 626. As we explained in Brocks’s first postconviction appeal, “the
Knaffla exceptions apply only to claims that a defendant failed to raise on direct appeal.”
Brocks II, 753 N.W.2d at 675. Accordingly, even if we were to determine that Brocks had
not forfeited his claim that an exception to Knaffla applies, the exception does not apply
here because Brocks raised the same claim he is now raising on appeal—the
conflict-of-interest claim—in his direct appeal and in earlier postconviction proceedings.
Brocks, therefore, cannot take advantage of the Knaffla exception.

                                              7
       Because Brocks’s petition is untimely and therefore “frivolous,” the petition does

not satisfy the interests-of-justice exception and was properly denied. Accordingly, we

hold that the postconviction court did not abuse its discretion in summarily denying relief.

       Affirmed.




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