                           This opinion will be unpublished and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
                                      A15-1763

                                David Lee Frazier, petitioner,
                                        Appellant,

                                             vs.

                                     State of Minnesota,
                                        Respondent.

                                     Filed July 5, 2016
                                         Affirmed
                                      Johnson, Judge

                               Ramsey County District Court
                                 File No. 62-CR-08-11564

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 Johnson, Presiding Judge; Stauber, Judge; and Kirk,

Judge.

                          UNPUBLISHED OPINION

JOHNSON, Judge

         In 2009, the district court found David Lee Frazier guilty of possessing controlled

substances. In 2014, Frazier petitioned for postconviction relief based on inadequate
procedures at the laboratory that tested the substances that he possessed. The district court

denied the petition without an evidentiary hearing. We conclude that the petition is

untimely and that Frazier cannot satisfy any exception to the two-year statute of limitations.

Therefore, we affirm.

                                           FACTS

       On July 10, 2008, narcotics agents were parked in an unmarked squad car at a

convenience store in St. Paul. The agents saw two persons in another vehicle and suspected

that they were engaged in a drug transaction. When the agents approached the vehicle,

they saw that the person in the driver’s seat, who later was identified as Frazier, was holding

several clear plastic baggies that appeared to contain controlled substances. The agents

also saw Frazier put one of the baggies in his mouth and begin chewing it. The agents

arrested both Frazier and the other person. Subsequent testing at the St. Paul Police

Department Crime Lab (SPPDCL) indicated that Frazier possessed marijuana and

methamphetamine.

       In September 2008, the state charged Frazier with fifth-degree controlled substance

crime, in violation of Minn. Stat. § 152.025, subd. 2(1) (2006). In March 2009, Frazier

moved to suppress the evidence. The district court denied the motion. Thereafter, the

parties agreed to a stipulated-evidence court trial. See Minn. R. Crim. P. 26.01, subd. 4.

The district court found Frazier guilty. In June 2009, the district court sentenced Frazier

to one year and one day in prison but stayed execution of the sentence and placed him on

probation.




                                              2
       In July 2014, Frazier petitioned for postconviction relief based on revelations that

the SPPDCL had inadequate training and testing protocols. See generally Roberts v. State,

856 N.W.2d 287, 289 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015). His petition

alleged four bases for relief: (1) newly-discovered evidence, (2) a Brady violation, (3) a

due process violation, and (4) ineffective assistance of counsel. In a memorandum

accompanying the petition, Frazier implicitly acknowledged that he did not comply with

the general two-year statute of limitations applicable to postconviction petitions. See Minn.

Stat. § 590.01, subd. 4(a) (2012). He argued, however, that his petition satisfies two

exceptions to the statute of limitations: the newly-discovered-evidence exception and the

interests-of-justice exception. See id., subd. 4(b)(2), (5).

       In October 2015, the postconviction court denied Frazier’s petition without an

evidentiary hearing. The postconviction court determined that Frazier’s untimely petition

does not satisfy either of the two exceptions to the statute of limitations that were invoked

in his petition. The postconviction court also determined that Frazier waived all challenges

to the sufficiency of the evidence by agreeing to a stipulated-evidence court trial. And the

postconviction court further determined that Frazier’s substantive postconviction claims

are without merit. Frazier appeals.

                                      DECISION

       Frazier argues that the postconviction court erred by denying his petition for

postconviction relief. In response, the state argues that the postconviction court did not err

because Frazier’s untimely petition does not satisfy any exception to the statute of

limitations, because he waived his challenge to the sufficiency of the evidence by agreeing


                                               3
to a stipulated-evidence court trial, and because his substantive claims are without merit.

We begin by considering whether Frazier’s untimely petition satisfies an exception to the

statute of limitations.

       A person seeking postconviction relief must file a postconviction petition within a

two-year limitations period. Minn. Stat. § 590.01, subd. 4(a). The limitations period

begins upon the latter 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)(1)-(2). If the two-year limitations period has expired, the postconviction court

nonetheless may consider the petition if any of five exceptions applies. Id., subd. 4(b). But

any petition relying on an exception to the two-year statute of limitations is subject to

another limitations period, which provides that the petition “must be filed within two years

of the date the claim arises.” Id., subd. 4(c); see also Sanchez v. State, 816 N.W.2d 550,

556 (Minn. 2012).

       Accordingly, “[a] postconviction petitioner is not entitled to relief or an evidentiary

hearing on an untimely petition unless he can demonstrate that ‘he satisfies one of the

[statutory] exceptions . . . and that application of the exception is not time-barred.’”

Roberts, 856 N.W.2d at 290 (quoting Riley v. State, 819 N.W.2d 162, 168 (Minn. 2012)).

“If the petitioner does not demonstrate that an exception applies and that application of the

exception is timely, the postconviction court may summarily deny the petition as

untimely.”    Id.   This court applies an abuse-of-discretion standard of review to a

postconviction court’s summary denial of a postconviction petition. Id.




                                              4
       In this case, Frazier invoked two exceptions to the general two-year statute of

limitations. He argued to the postconviction court that his petition should be considered,

even though it was not filed within two years, because of the statutory exceptions for newly

discovered evidence and the interests of justice. The postconviction court concluded that

neither exception applies.1

A.     Newly-Discovered-Evidence Exception

       Under the newly-discovered-evidence exception, a postconviction petition that is

filed after the two-year statute of limitations may be considered if five requirements are

satisfied:

              (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 or offenses for which the petitioner was
              convicted.”

Roberts, 856 N.W.2d at 290 (quoting Minn. Stat. § 590.01, subd. 4(b)(2)); see also Riley,

819 N.W.2d at 168.



       1
        The postconviction court rejected Frazier’s arguments concerning the two
exceptions by analyzing whether the requirements of each exception were satisfied. The
postconviction court did not consider whether Frazier filed his postconviction petition
“within two years of the date the claim [arose].” See Minn. Stat. § 590.01, subd. 4(c). On
appeal, the state does not contend that the exceptions do not apply because they are barred
by the secondary two-year limitations period in subdivision 4(c). Thus, we assume without
deciding that Frazier filed his postconviction petition “within two years of the date the
claim [arose].” See id.

                                              5
       In this case, the postconviction court determined that this exception does not apply

because Frazier cannot satisfy the second and fifth requirements. The second requirement

asks whether 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.” Minn. Stat. § 590.01, subd. 4(b)(2). The postconviction court

found that Frazier “knew that the charge against him was based on SPPDCL test results,”

that he “had access to the test results through discovery,” that he “could have challenged

the foundational reliability of the test results at a jury trial,” and that he “could have

requested public funds to obtain expert review.” Frazier contends that the problems at the

SPPDCL could not have been ascertained through due diligence because no one knew that

there were problems at the SPPDCL until 2012. Frazier’s contention is foreclosed by this

court’s opinion in Roberts, in which we concluded that the appellant could have challenged

the reliability of the SPPDCL’s test results before 2012 because he had access to the test

results under the rules of criminal procedure, which permit discovery. 856 N.W.2d at 291.

We reasoned that merely because the appellant did not actually discover the problems at

the SPPDCL does not mean that the appellant could not have discovered them with due

diligence. Id. That reasoning necessarily applies to this case.

       Frazier attempts to distinguish Roberts by pointing to the evidence in this case.

Specifically, he relies on an affidavit executed by the criminal-defense attorney who first

discovered and exposed the problems at the SPPDCL. The attorney states that she was

able to ascertain evidence of problems at the SPPDCL because of her specialized scientific

training and that an attorney without such training (such as Frazier’s trial attorney) could


                                             6
not be expected to identify the problems. The second requirement of the newly-discovered-

evidence exception asks whether the new evidence “could not have been ascertained by the

exercise of due diligence by the petitioner or petitioner’s attorney.” Minn. Stat. § 590.01,

subd. 4(b)(2). We have applied this statute by asking whether an attorney exercising due

diligence could have discovered the problem. See Roberts, 856 N.W.2d at 291. We have

answered that question in the affirmative because one attorney did so through a process

authorized by the rules of criminal procedure. See id. Accordingly, we follow both the

reasoning and the result in Roberts. Thus, the postconviction court properly determined

that Frazier cannot satisfy the second requirement of the newly-discovered-evidence

exception.

       The fifth requirement asks whether, “by a clear and convincing standard . . . the

petitioner is innocent of the offense or offenses for which the petitioner was convicted.”

Minn. Stat. § 590.01, subd. 4(b)(2). The postconviction court, quoting Roberts, found that

Frazier “has not shown by clear and convincing evidence that he was innocent because he

did not ‘offer evidence regarding the chemical composition of the particular substance in

his case.’” See Roberts, 856 N.W.2d at 291. Frazier contends that newly-discovered

evidence likely would lead to a more favorable result. But Frazier does not have evidence

that the substances that were tested at the SPPDCL are not marijuana or methamphetamine.

The district court record indicates that those substances likely are controlled substances. A

narcotics agent testified that, based on his training and experience, the substances in

Frazier’s possession appeared to be controlled substances. The agent also testified that

Frazier attempted to destroy some of the evidence when the agents approached him, which


                                             7
tends to indicate that Frazier believed that he possessed controlled substances. Frazier has

nothing more than speculation that the substances are not actually controlled substances.

His speculation is insufficient to satisfy the clear-and-convincing standard. In Roberts, we

stated that “‘[a]ctual innocence is more than an uncertainty about guilt’” and that

“‘establishing actual innocence requires evidence that renders it more likely than not that

no reasonable jury would convict.’” 856 N.W.2d at 292 (quoting Riley, 819 N.W.2d at

170). Given the absence of any evidence that the substances tested are not actually

controlled substances, Frazier cannot prove by clear and convincing evidence that he is

actually innocent of the offense of which he was convicted. Thus, the postconviction court

properly determined that Frazier cannot satisfy the fifth requirement of the newly-

discovered-evidence exception.

B.     Interests-of-Justice Exception

       Under the interests-of-justice exception, a postconviction petition that is filed after

the two-year statute of limitations may be considered if “the petition is not frivolous and is

in the interests of justice.” Minn. Stat. § 590.01, subd. 4(b)(5). This exception applies only

in extraordinary circumstances. Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010);

Roberts, 856 N.W.2d at 292.

       The postconviction court concluded that “the interests of justice do not necessitate

postconviction relief.” Frazier contends that the exception is satisfied in part because he

has meritorious claims.     He refers to the substantive claims that he alleged in his

postconviction petition and continues to pursue on appeal: newly discovered evidence, a

Brady violation, a violation of procedural due process, and ineffective assistance of


                                              8
counsel. But the merits of Frazier’s postconviction petition have no bearing on the

applicability of the interests-of-justice exception to the statute of limitations. The supreme

court recently clarified that the interests-of-justice exception “relate[s] to the reason the

petition was filed after the 2-year time limit in subdivision 4(a), not the substantive claims

in the petition,” and that “the interests-of-justice exception is triggered by an injustice that

caused the petitioner to miss the primary deadline in subdivision 4(a), not the substance of

the petition.” Sanchez, 816 N.W.2d at 557 (emphasis in original) (cited in Wayne v. State,

866 N.W.2d 917, 920 (Minn. 2015), and Brown v. State, 863 N.W.2d 781, 788 (Minn.

2015)). Accordingly, we will not review the merits of Frazier’s substantive postconviction

claims for purposes of determining the applicability of the interests-of-justice exception to

the statute of limitations.

       Frazier also contends that the state should be held responsible for the problems at

the SPPDCL and the lack of an earlier disclosure of those problems. In Roberts, we

reasoned that the petitioner “had the opportunity to investigate the validity of the test results

in his case, and he declined to do so,” which meant that he was “at fault for his failure to

discover the problems at the crime lab before he pleaded guilty.” 856 N.W.2d at 293. We

also reasoned that it was not “necessary to act in the interests of justice to protect the

integrity of the judicial proceedings” because the problems at the SPPDCL did “not stem

from a flaw in the judicial process.” Id. Frazier’s attempt to apply the interests-of-justice

exception in this case fails for the same reasons.

       Thus, the postconviction court properly determined that Frazier cannot satisfy an

exception to the two-year statute of limitations.


                                               9
       Before concluding, we note Frazier’s alternative argument that the postconviction

court erred by not providing him with an evidentiary hearing to present evidence in support

of his postconviction petition. A postconviction petitioner is not entitled to an evidentiary

hearing if “the petition and the files and records of the proceeding conclusively show that

the petitioner is entitled to no relief.” Minn. Stat. § 509.04, subd. 1 (2012). An evidentiary

hearing is required only if “there are material facts in dispute that must be resolved to

determine the postconviction claim on its merits.” Powers v. State, 695 N.W.2d 371, 374

(Minn. 2005). The postconviction court’s analysis, and our analysis, does not depend on

the resolution of disputed facts. Frazier’s failure to satisfy the second requirement of the

newly-discovered-evidence exception is a sufficient basis for concluding that the exception

does not apply. Frazier cannot satisfy the interests-of-justice exception because of this

court’s precedential caselaw. Thus, an evidentiary hearing would not have been beneficial

to Frazier.

       In sum, the postconviction court did not err by denying Frazier’s petition for

postconviction relief without an evidentiary hearing because Frazier’s petition is untimely

and does not satisfy any exception to the statute of limitations. In light of that conclusion,

we need not consider the state’s alternative arguments that Frazier waived his challenge to

the sufficiency of the evidence by agreeing to a stipulated-evidence court trial and that

Frazier’s substantive claims are without merit.

       Affirmed.




                                             10
