                        This opinion will be unpublished and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
                                   A15-1256

                            Freddie Lee Jenkins, petitioner,
                                      Appellant,

                                          vs.

                                  State of Minnesota,
                                     Respondent.

                                  Filed May 2, 2016
                                      Affirmed
                                  Toussaint, Judge

                            Ramsey County District Court
                              File No. 62-CR-08-2703

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

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

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

      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                           UNPUBLISHED OPINION

TOUSSAINT, Judge

          In this postconviction appeal seeking relief from his 2011 conviction of a second-

degree controlled substance crime, following a Lothenbach proceeding, appellant argues

that the postconviction court abused its discretion when it denied appellant’s (1) petition

alleging deficiencies at the St. Paul Crime Lab that should entitle him to a new trial based

on newly discovered evidence, a Brady violation, and ineffective assistance of counsel;

(2) request for an evidentiary hearing when the petition was timely filed within two years

of when the claim arose under the newly-discovered-evidence and interests-of-justice

exceptions; and (3) request for an evidentiary hearing when the facts asserted in the petition

demonstrate that he is entitled to relief. Because the district court did not abuse its

discretion in denying appellant’s petition for postconviction relief without a hearing, we

affirm.

                                       DECISION

          Appellant, Freddie Lee Jenkins, challenges the denial of his petition for

postconviction relief, arguing that the district court abused its discretion when it denied his

request for postconviction relief because testing deficiencies discovered at the St. Paul

Police Department Crime Lab (SPPDCL) provided a basis on which to vacate his

conviction. Jenkins argues that his petition was not time-barred and he is entitled to

postconviction relief because of newly discovered evidence, a Brady violation, a due-

process violation, manifest injustice, and ineffective assistance of counsel.




                                              2
       In December 2007, according to the complaint, two police officers approached what

they believed to be a drug transaction between two men, one of whom was Jenkins. Jenkins

walked away from the police despite being told to stop, and one of the officers saw him

swallow what the officers believed to be crack cocaine. The officers searched Jenkins and

found a substance that they suspected to be crack cocaine in the upper left arm pocket of

his coat. Initially, Jenkins said that the coat was not his, but he eventually admitted that

the crack cocaine was his and that he was planning to use it. The state charged Jenkins

with one count of possession of a controlled substance in the second degree. See Minn.

Stat. § 152.022, subd. 2(1) (2006).

       On October 11, 2010, Jenkins waived his right to a jury trial and proceeded to a

stipulated-facts court trial. See State v. Lothenbach, 296 N.W.2d 854, 857-58 (Minn. 1980)

(establishing procedure by which a defendant may plead not guilty, waive all trial-related

rights, stipulate to the state’s evidence in a court trial, and then appeal a dispositive pretrial

ruling). Jenkins stipulated to the Rasmussen hearing testimony and the SPPDCL report.

Jenkins noted on the record that he was “not contesting that it was in fact cocaine.” The

district court found Jenkins guilty of the charged offense. At sentencing, the district court

noted that Jenkins admitted “he was in clear possession of the cocaine.” The district court

gave Jenkins a stayed sentence of 84 months and placed him on probation for 10 years. In

October 2011, following a probation violation, Jenkins’s sentence was executed.

       In July 2014, Jenkins filed a petition for postconviction relief. His petition was

based on revelations that the SPPDCL had inadequate training and testing protocols, which

eventually led to the lab’s loss of certification. See generally Roberts v. State, 856 N.W.2d


                                                3
287, 288-89 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015). The district court

denied Jenkins’s petition without an evidentiary hearing. Jenkins appeals.

       Jenkins raises three issues in his brief: he argues that the district court abused its

discretion by denying his petition for postconviction relief, by holding that Jenkins was

beyond the statutory filing deadline and did not establish a statutory exception, and by

denying his request for an evidentiary hearing. Under this court’s precedent in Roberts,

856 N.W.2d at 288, however, the timeliness issue is dispositive. We conclude that

Jenkins’s claims are time-barred and that he has not demonstrated any exception to the

statutory time limits.

Jenkins’s Postconviction Petition is Time-Barred

       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 (2014). Petitions for postconviction relief 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) (2014). A

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

statutory exceptions. Id., subd. 4(b) (2014). A petition that invokes one of the exceptions

must be filed within two years of the date the claim arises. Id., subd. 4(c) (2014).

       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). “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.” Id. (quotation omitted). Legal issues are reviewed de novo,


                                              4
but review of 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).

         Jenkins does not deny that his petition was filed outside the two-year time limit, but

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

Each argument is addressed in turn.

The Newly-Discovered-Evidence Exception

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

2012 constitute newly discovered evidence. We disagree.

         A district 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 (quoting Minn. Stat. § 590.01, subd.

4(b)(2) (2012)). All five elements must be established to obtain relief. Id. If an exception

applies, the petition must be filed within two years of the date the claim arises. Minn. Stat.

§ 590.01, subd. 4(c). A claim arises when the petitioner “knew or should have known that

the claim existed.” Sanchez v. State, 816 N.W.2d 550, 552 (Minn. 2012).

         This court rejected Jenkins’s 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


                                               5
not establish by clear and convincing evidence that he was innocent. Roberts, 856 N.W.2d

at 291-92. Like Roberts, Jenkins did not challenge the identity of the substance, and he

expressly stated that he was not contesting that the substance was cocaine. He did not offer

evidence regarding the identity of the substance, and he expressly gave up his right to

challenge the state’s evidence by stipulating to it in a Lothenbach proceeding. See State v.

Riley, 667 N.W.2d 153, 154 (Minn. App. 2003) (“Because a defendant who relies on the

Lothenbach procedure essentially concedes factual guilt conditioned on the correctness of

the pretrial ruling, the defendant may not challenge the sufficiency of the evidence on

appeal from a conviction entered following a Lothenbach stipulation.”), review denied

(Minn. Oct. 21, 2003); see also Minn. R. Crim. P. 26.01, subd. 4(f) (providing that “[t]he

defendant must also acknowledge that appellate review will be of the pretrial issue, but not

of the defendant’s guilt, or of other issues that could arise at a contested trial” (emphasis

added)).

       Jenkins attempts to distinguish the facts of this case from 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. To support that proposition,

Jenkins, unlike Roberts, “presented an affidavit in his petition from Lauri Traub, one of the

attorneys from the Jensen hearing, outlining why her experience and scientific background

helped her discover what other attorneys could not.” Traub is an assistant public defender

in Dakota County who helped expose the procedural deficiencies at the SPPDCL. In her

affidavit, Traub explained why she believed that she was only able to discover the testing

defects because of her participation in the Public Defender DNA Intensive Institute, an


                                             6
“intensive training program for 33 public defenders in the science of DNA,” which spanned

18 months.

       Traub explained that her training included obtaining “the complete underlying DNA

testing file from the BCA and meeting with the scientist to discuss the file.” Upon finishing

the DNA Institute, Traub and some other participants decided to learn more about forensic

drug testing by sending a disclosure request to the SPPDCL, ultimately leading to a Frye-

Mack hearing challenging the scientific reliability of the testing performed there. Traub

concluded that she and her colleague “were able to discern the problems with the crime

lab . . . because of [their] specialized scientific training” and noted that the issues that

concerned her would not have been familiar to an attorney without it.

       Jenkins asserts that the Traub affidavit is sufficient to show that the deficient

processes at the crime lab could not have been discovered by due diligence because they

required specialized training to spot. However, this affidavit does not fully address the

concerns this court had in Roberts. Jenkins “does not claim that he made any effort to

investigate the validity of the test results. Nor does he claim that anyone prevented him

from doing so.” Roberts, 856 N.W.2d at 291.

       Like Roberts, Jenkins agreed that the crime lab analyzed the substance found in his

coat and identified it as cocaine, and accordingly, he knew the charge against him was

based on the crime lab’s test results. Id. As Roberts did, Jenkins had access to the test

results under the discovery rules, see Minn. R. Crim. P. 9.01, subd. 1(4) (requiring the

prosecutor to disclose scientific tests and permit defense counsel to inspect and reproduce

any scientific test results), and he could have challenged the foundational reliability of the


                                              7
test results. See Minn. R. Crim. P. 11.02, .04 (allowing the defendant to demand an

omnibus hearing on evidentiary issues). Further, Jenkins “could have requested public

funds for that purpose.” Roberts, 856 N.W.2d at 291 (citing Minn. Stat. § 611.21(a) (2004)

(authorizing court-appointed counsel to file an application for expert services and the court

to direct payment for such services by the county in which the prosecution originates)).

       In addition, “to satisfy the newly-discovered-evidence exception, the newly

discovered evidence must establish actual innocence.” Id. at 292 (quotation omitted).

“Actual innocence is more than an uncertainty about guilt. Instead, establishing actual

innocence requires evidence that renders it more likely than not that no reasonable jury

would convict.” Id. (quotation omitted). Here, as in Roberts, there is also nonscientific

evidence of guilt. According to the complaint, Jenkins swallowed what the police believed

to be additional crack cocaine despite being ordered by the officers to spit it out; Jenkins

also eventually admitted to the police that the crack cocaine in his coat was his. Further,

Jenkins has not denied in district court or in his postconviction appeal that the substance

was crack cocaine. In Roberts, this court found that similar circumstances were “fatal to

[the appellant’s] attempt to establish actual innocence based on speculation regarding the

validity of the test results in his case.” Id.

       Traub’s affidavit does not negate the fact that Jenkins, like Roberts, has failed to

show that he made an attempt to investigate the test results or that anything prevented him

from doing so. See id. at 291. Jenkins “has not met his burden to establish that the new

evidence regarding the crime lab could not have been discovered with due diligence or that

the new evidence clearly and convincingly establishes his innocence.”            Id. at 292.


                                                 8
Accordingly, the district court did not abuse its discretion by concluding that the newly-

discovered-evidence exception does not apply.

The Interests-of-Justice Exception

         “[A district] 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) (2012)).

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 to be

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

         This court in Roberts determined that the interests-of-justice exception had not been

met under nearly identical circumstances and noted that the appellant had not made a

showing of fundamental unfairness. 856 N.W.2d at 293. This court noted:

                We recognize that the information regarding the crime lab
                could have influenced Roberts’s decision to waive his right to
                a trial and plead guilty. But it is not fundamentally unfair to
                hold Roberts accountable for his choice to accept the state’s
                scientific evidence at face value and resolve his case with a
                guilty plea in exchange for a reduced sentence.

Id. Although Jenkins stipulated to the state’s evidence in a Lothenbach proceeding, the

same reasoning applies. Jenkins argues that his petition has substantive merit based on

newly discovered evidence, a Brady violation, a due-process violation, and ineffective


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

                                               9
assistance of counsel. By stipulating to the state’s evidence in a Lothenbach proceeding,

however, Jenkins waived his evidentiary and procedural challenges. In addition, this court

considered identical arguments in Roberts and found them to be meritless. Because

Roberts controls here and is completely on point, the district court did not abuse its

discretion in denying Jenkins’s petition for postconviction relief without a hearing.2

       Affirmed.




2
  Although petitioners are generally entitled to an evidentiary hearing, a district court may
summarily deny a petition when the petition, files, and records conclusively show that the
petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2012). A request for an
evidentiary hearing is reviewed for an abuse of discretion. Riley, 819 N.W.2d at 167.
Because the record conclusively shows that Jenkins is not entitled to postconviction relief,
the district court did not abuse its discretion by denying his request for an evidentiary
hearing. See Powers v. State, 695 N.W.2d 371, 374-75 (Minn. 2005) (holding that district
court did not abuse its discretion by denying postconviction relief without a hearing where
petitioner’s arguments were Knaffla-barred).

                                             10
