                            This opinion will be unpublished and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
                                       A15-1643

                               Gregory Lee Cobbins, petitioner,
                                         Appellant,

                                               vs.

                                      State of Minnesota,
                                         Respondent.

                                      Filed May 9, 2016
                                          Affirmed
                                         Kirk, Judge

                                Ramsey County District Court
                                  File No. 62-CR-12-1329

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 Jesson, Presiding Judge; Peterson, Judge; and Kirk,

Judge.

                           UNPUBLISHED OPINION

KIRK, Judge

         Appellant challenges the denial of his petition for postconviction relief, arguing that

he should be allowed to withdraw his guilty plea to fifth-degree possession of a controlled
substance because of testing deficiencies discovered at the St. Paul Police Department

Crime Lab. Because his petition was untimely, we affirm.

                                          FACTS

       On February 15, 2012, appellant Gregory Lee Cobbins was charged with fifth-

degree possession of a controlled substance. The charge arose after law enforcement, while

executing a search warrant on a residence, performed a Terry search on Cobbins and found

a baggie containing crack cocaine in his front pocket.

       On April 23, 2012, the district court held a plea hearing, and Cobbins appeared with

his attorney.   Cobbins signed a plea petition, which was admitted into the record,

acknowledging that he was represented by an attorney, that he had sufficient time to discuss

the case and any possible defenses to the charge with his attorney, and that he was satisfied

that his attorney had represented his interests and fully advised him. He also waived his

trial rights. At the plea hearing, Cobbins agreed that he and his attorney had reviewed

respondent State of Minnesota’s police reports describing his offense and the evidence

supporting the charge. Cobbins verbally waived his right to a jury trial and an evidentiary

hearing.

       Cobbins provided a factual basis for his guilty plea. He acknowledged on the record

that while law enforcement executed a search warrant at a residence in St. Paul, they asked

Cobbins if he had anything in his pocket that they should know about, and Cobbins told

them that he had cocaine in his pocket. Cobbins admitted that he was aware that the

substance found in his pocket was later determined to be .27 grams of cocaine. The district




                                             2
court sentenced Cobbins to prison for 15 months, stayed for 5 years. After Cobbins

violated probation twice, the district court executed his stayed 15-month sentence.

       On July 18, 2014, Cobbins petitioned for postconviction relief, citing widespread

evidence-testing problems at the St. Paul Police Department Crime Lab (SPPDCL) that

were identified in State v. Jensen, No. 19HA-CR-09-3463 (Minn. Dist. Ct. July 16, 2012).

Cobbins argues that his petition was not time barred and that he was entitled to

postconviction relief on the grounds of newly discovered evidence, a Brady violation, a

due-process violation, manifest injustice, and ineffective assistance of counsel. The

postconviction court denied Cobbins’s petition without an evidentiary hearing. Cobbins

appeals.

                                      DECISION

I.     Cobbins’s petition for postconviction relief does not satisfy the newly-
       discovered-evidence or interests-of-justice exceptions to the two-year time limit
       in Minn. Stat. § 590.01 (2014).

       “We review a 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). “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.” State v. Nicks,

831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted). “We review legal issues de novo,

but on factual issues our review 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) (quotation omitted).




                                              3
       An individual who is convicted of a crime and claims the conviction was obtained

in violation of the individual’s constitutional rights may file a petition for postconviction

relief. Minn. Stat. § 590.01, subd. 1 (2014). A petition 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 invoking one of these exceptions must be filed

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

       Cobbins does not dispute that he filed his postconviction petition after the two-year

time limit. He argues that the newly-discovered-evidence and the interests-of-justice

exceptions apply.

       A.     Newly-discovered-evidence exception

       To satisfy the newly-discovered-evidence exception to the postconviction time

limit, Cobbins’s postconviction petition must allege that: (1) newly discovered evidence

exists; (2) “the evidence could not have been ascertained by the exercise of due diligence

. . . within the two-year time period for filing a postconviction petition; (3) the evidence is

not cumulative . . . ; (4) the evidence is not for impeachment purposes; and (5) the evidence

establishes by a clear and convincing evidence standard that the petitioner is innocent of

the offense . . . for which the petitioner was convicted.” Roberts v. State, 856 N.W.2d 287,

290 (Minn. App. 2014) (quotation omitted); Minn. Stat. § 590.01, subd. 4(b) (2014). All

five elements must be established in order to obtain relief. Roberts, 856 N.W.2d at 290.

       Cobbins asserts that the testing deficiencies that were discovered at the SPPDCL in

2012 constitute new evidence. But in Roberts, we addressed this argument and held that


                                              4
the newly-discovered-evidence exception did not apply because Roberts failed to

demonstrate that the testing deficiencies at SPPDCL could not have been discovered

through the exercise of due diligence. Id. at 291. And any evidence of the SPPDCL’s

testing deficiencies would only constitute impeaching evidence. “We will not grant a new

trial on the basis of evidence that is merely impeaching.” Pippett v. State, 737 N.W.2d

221, 228 (Minn. 2007). Because Cobbins fails to present any evidence that the SPPDCL’s

testing deficiencies affected his particular case, evidence regarding SPPDCL’s problems

would be used to impeach a lab analyst on cross-examination, rather than preclude the

evidence in his case from being admitted. See e.g., Sentinel Mgmt. Co. v. Aetna Cas. &

Sur. Co., 615 N.W.2d 819, 824-25 (Minn. 2000) (holding that alleged deficiencies in expert

witness’s procedures “went to the weight, rather than to the admissibility of his

testimony”).

       Cobbins also fails to establish through clear and convincing evidence that he was in

fact innocent. Roberts, 856 N.W.2d at 291-92 (holding that Roberts did not demonstrate

by clear and convincing evidence that he is innocent of the offense for which he was

convicted because he did not offer evidence regarding the chemical composition of the

substance and that the substance was not cocaine). Cobbins never challenged the identity

of the substance found on his person on the day of his arrest, nor did he ever claim that the

substance was not cocaine. At the plea hearing, he admitted that the substance was cocaine.

Cobbins makes no specific allegations concerning the testing by SPPDCL in his case, and

by pleading guilty, he relinquished his right to challenge the state’s evidence.




                                             5
         Here, Cobbins fails to meet his burden of demonstrating that the SPPDCL testing

deficiencies satisfy the new-evidence exception under Roberts and Minn. Stat. § 590.01,

subd. 4(b)(2). The postconviction court did not abuse its discretion by concluding that this

exception was not applicable to Cobbins’s case.

         B.     The interests-of-justice exception

         “[A] 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.’” Roberts, 856 N.W.2d at 292 (quoting Minn. Stat. § 590.01, subd.

4(b)(5) (2012)). This exception only applies to exceptional cases. Id. To qualify for the

interests-of-justice exception, “a claim must have substantive merit and the [petitioner]

must not have deliberately and inexcusably failed to raise the issue on direct appeal.” Id.

(quotation omitted). The district court also weighs a number of factors, including the

degree to which each party is at fault for the alleged error, whether fundamental fairness to

the petitioner needs to be addressed, and whether it is “necessary to protect the integrity of

judicial proceedings.” 1 Id.

         Cobbins argues that his postconviction petition has merit based on newly discovered

evidence, a Brady violation, a due-process violation, manifest injustice, and ineffective

assistance of counsel. Cobbins’s first three arguments fail because a counseled guilty plea

“has traditionally operated, in Minnesota and in other jurisdictions, as a waiver of all non-




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

                                               6
jurisdictional defects arising prior to the entry of the plea.” State v. Ford, 397 N.W.2d 875,

878 (Minn. 1986) (citing State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980)).

       Here, Cobbins pleaded guilty to fifth-degree possession of a controlled substance.

He was represented by counsel, signed a plea petition acknowledging that he had the

opportunity to discuss his defenses with his attorney, was giving up the right to challenge

the state’s evidence, and was not making a claim that he was innocent. By entering a

counseled guilty plea, Cobbins waived his evidentiary and procedural challenges. We now

address Cobbins’s remaining arguments, whether he is entitled to withdraw his guilty plea

on the grounds of manifest injustice and ineffective assistance of counsel.

              i.     Manifest injustice

       The validity of a guilty plea is a question of law, which this court reviews de novo.

State v. Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). Minn. R. Crim. P. 15.05, subd. 1, states

in relevant part that “the court must allow a defendant to withdraw a guilty plea upon a

timely motion and proof to the satisfaction of the court that withdrawal is necessary to

correct a manifest injustice.” A guilty plea is invalid and manifestly unjust if it is not

accurate, voluntary, and intelligent. Raleigh, 778 N.W.2d at 93-94.

       “A proper factual basis must be established for a guilty plea to be accurate.” State

v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). Cobbins argues that his guilty plea is not

factually accurate because the statements supporting the factual basis of his guilty plea

were based on an unreliable SPPDCL laboratory test. Here, the record shows that Cobbins

pleaded guilty to fifth-degree possession of a controlled substance. He admitted that the

substance was cocaine and, by signing his plea petition, acknowledged that he was not


                                              7
making any claim that he was innocent. These facts, acknowledged by Cobbins at his plea

hearing, satisfy the accuracy requirement.

          “Whether a plea is voluntary is determined by considering all relevant

circumstances.” Raleigh, 778 N.W.2d at 96. “The voluntariness requirement ensures a

defendant is not pleading guilty due to improper pressure or coercion.” Id. Cobbins argues

that his guilty plea was involuntary. He asserts that, “[i]n light of what we now know about

the [SPPDCL], that it was not credible, it was not scientific, and it was not operating as a

lab, there was an improper pressure to induce [Cobbins] to plead guilty.”

          At the plea hearing, Cobbins admitted that the cocaine found in his pocket was sent

for testing, and it was confirmed to be .27 grams of cocaine. He did not ask to review the

SPPDCL records, did not challenge the admission of the lab report, and did not dispute that

the substance was cocaine. Cobbins was not improperly pressured or coerced to plead

guilty.

          “The intelligence requirement ensures that a defendant understands the charges

against him, the rights he is waiving, and the consequences of his plea.” Raleigh, 778

N.W.2d at 96. Cobbins argues that when he pleaded guilty, he was unaware about testing

deficiencies at the SPPDCL, he did not know how to challenge the admissibility of

scientific evidence, and he did not adequately understand the scope of the right to challenge

the evidence.

          The record shows that at the plea hearing, Cobbins acknowledged that he had been

charged with fifth-degree possession of a controlled substance, that he understood the

contents of his signed plea petition, and he verbally stated that he understood the


                                               8
consequences of waiving his right to an evidentiary hearing and trial. Cobbins understood

the charges against him, the rights that he was waiving, and the consequences of pleading

guilty. Because Cobbins’s plea was accurate, voluntary, and intelligent, he is not entitled

to postconviction relief based upon a manifest injustice.

               ii.    Ineffective assistance of counsel

         “[T]o demonstrate ineffective assistance of counsel, a [defendant] must show that

the representation fell below an objective standard of reasonableness . . . and that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Schleicher v. State, 718 N.W.2d 440, 447 (Minn.

2006) (quotation omitted). Counsel’s performance is judged by an objective standard of

“representation by an attorney exercising the customary skills and diligence that a

reasonably competent attorney would perform under similar circumstances.” Opsahl v.

State, 677 N.W.2d 414, 421 (Minn. 2004) (quotation omitted).               “Trial counsel’s

performance is presumed to be reasonable.” State v. Vang, 847 N.W.2d 248, 266 (Minn.

2014).

         Cobbins argues that his attorney’s representation was not reasonable because he

“did not demand and review the underlying [SPPDCL] file in his case.” But at his plea

hearing, Cobbins acknowledged that he was waiving his right to have his attorney question

or cross-examine his accusers, which ostensibly would include the lab analyst who

determined that the substance found on Cobbins was cocaine. Cobbins does not allege that

his attorney failed to discuss the option of demanding the SPPDCL file, refused to request

the file, or advised him not to challenge the results. See Roberts, 856 N.W.2d at 293


                                              9
(holding Roberts’s ineffective-assistance-of-counsel claim fails because he did not allege

that his attorney failed to discuss the option of investigating the validity of the test results,

refused his request to challenge the test results, or advised him not to challenge the results).

       Cobbins also fails to demonstrate that it was routine, customary practice of defense

attorneys in 2011 to request SPPDCL files for cases involving controlled substances. For

these reasons, Cobbins’s ineffective-assistance-of-counsel claim fails.

II.    The postconviction court did not err in denying Cobbins’s request for an
       evidentiary hearing.

       Cobbins argues that the postconviction court erred by denying his request for an

evidentiary hearing. A postconviction court’s decision on whether to hold an evidentiary

hearing is reviewed for an abuse of discretion. Riley, 819 N.W.2d at 167. 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.

§ 590.04, subd. 1 (2014). 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).

       Cobbins is not entitled to relief for the reasons discussed earlier in this opinion, and

there are no disputed issues of material fact. Therefore, Cobbins has not shown that the

postconviction court abused its discretion by denying his request for an evidentiary hearing.

Id.

       Affirmed.




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