                          This opinion will be unpublished and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
                                     A15-1212

                            Brandon Darnell Barnes, petitioner,
                                       Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                   Filed March 7, 2016
                                         Affirmed
                                     Connolly, Judge

                               Dakota County District Court
                               File No. 19HA-CR-08-4164

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

James C. Backstrom, Dakota County Attorney, G. Paul Beaumaster, Assistant County
Attorney, Hastings, Minnesota (for respondent)


         Considered and decided by Connolly, Presiding Judge; Stauber, Judge; and Reilly,

Judge.

                         UNPUBLISHED OPINION

CONNOLLY, Judge

         Appellant challenges his 2009 conviction of first-degree sale of a controlled

substance, arguing that the district court abused its discretion in denying his petition for
postconviction relief because problems discovered in 2012 with the St. Paul Police

Department Crime Lab (SPPDCL) testing procedures were newly discovered evidence;

(2) the district court erred in concluding that appellant did not receive ineffective assistance

of counsel in 2009 because his counsel did not assert this argument to the district court,

and (3) he was denied relief on his Brady violation claim. Because we see no abuse of

discretion, we affirm.

                                           FACTS

       On June 10, June 11, and July 3, 2008, appellant Brandon Barnes sold an undercover

police officer a substance later determined by the SPPDCL to be cocaine. After the July 3

sale, he admitted to an investigator that he had sold an ounce of cocaine that day and smaller

amounts of cocaine on the two previous days.

       Appellant was arrested and charged with first-degree controlled substance crime on

the basis of the three incidents. In 2009, he pleaded guilty and was sentenced to 98 months

in prison; that sentence was stayed for 15 years, and appellant was placed on probation on

the condition that he serve 180 days in jail.

       In 2012, a Dakota County case, State v. Jensen, led to the investigation, audit, and

closing of the SPPDCL. In 2013, appellant received a concurrent 120-month sentence on

another matter and requested execution of the 98-month sentence.

       In July 2014, he filed a petition for postconviction relief, asking to withdraw his

2009 guilty plea based on the closing of the SPPDCL and arguing (1) newly discovered

evidence; (2) a Brady violation; (3) a due process violation; (4) that his plea was inaccurate,

involuntary, and unintelligent; and (5) ineffective assistance of counsel. The district court


                                                2
order granted his request for an evidentiary hearing on withdrawal of his guilty plea and

denied relief on the Brady violation.

       Respondent State of Minnesota requested reconsideration of the grant of an

evidentiary hearing in light of Roberts v. State, 856 N.W.2d 287, 292 (Minn. App. 2014)

(holding that SPPDCL problems are not newly discovered evidence), review denied (Minn.

Mar. 28, 2015). The district court let the hearing go forward but said respondent could

argue whether relief was time-barred in post-hearing briefs. At the hearing, appellant, the

attorney whom he claims provided ineffective assistance, two scientists from the SPPDCL,

the attorney in Jensen, and two expert witnesses testified.

       Following the hearing, the district court concluded that the SPPDCL litigation was

not newly discovered evidence and that appellant had not been denied effective assistance

of counsel and denied his motion for postconviction relief. Appellant challenges the denial,

arguing that the district court abused its discretion in concluding that the problems with the

SPPDCL were not newly discovered evidence, that appellant did not receive effective

assistance of counsel, and that there had been no Brady violation.

                                        DECISION

       “The denial of a new trial by a postconviction court will not be disturbed absent an

abuse of discretion and review is limited to whether there is sufficient evidence to sustain

the postconviction court’s findings.” State v. Hooper, 620 N.W.2d 31, 40 (Minn. 2000).

1.     Newly Discovered Evidence

       Appellant did not file a direct appeal. When no direct appeal is filed, a petition for

postconviction relief must be filed within two years of the entry of judgment of conviction


                                              3
or sentence. Minn. Stat. § 590.01, subd. 4(a) (2014). But an exception to this limitation

occurs when five criteria are met: (1) the petitioner alleges the existence of newly

discovered evidence; (2) the evidence could not have been discovered by the exercise of

the due diligence of the petitioner or the petitioner’s attorney within the two-year period

following the entry of judgment of conviction or sentence; (3) the evidence is not

cumulative to that presented at trial, (4) the evidence is not introduced for impeachment,

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.” Minn. Stat.

§ 590.01, subd. 4(b)(2) (2014); see also Rainer v. State, 566 N.W.2d 692, 695 (Minn. 1997)

(holding that a new trial may be granted on the basis of newly discovered evidence when

the defendant proves “(1) that the evidence was not known to the defendant or his/her

counsel at the time of the trial; (2) that the evidence could not have been discovered through

due diligence before trial; (3) that the evidence is not cumulative, impeaching, or doubtful;

and (4) that the evidence would probably produce an acquittal or a more favorable result”).

       The argument that the 2012 investigation of SPPDCL was newly discovered

evidence that could entitle petitioners convicted before 2012 to postconviction relief was

addressed and rejected in Roberts, 856 N.W.2d at 292 (“[The petitioner] has not met his

burden to establish that the new evidence regarding [SPPDCL] could not have been

discovered with due diligence or that the new evidence clearly and convincingly establishes

his innocence.”).

       The district court here relied on Roberts, noting that it




                                              4
              focused on two elements of the newly discovered evidence
              exception, due diligence and actual innocence. [Roberts, 856
              N.W.2d] at 290. In doing so, the court [of appeals] found that
              [Roberts] had not demonstrated that the information regarding
              the crime lab could not have been discovered through the
              exercise of due diligence. Id. at 291. Additionally, the court
              [of appeals] did not find that the [SPPDCL] evidence
              established [Roberts]’s innocence by clear and convincing
              evidence. Id. Similarly, . . . [appellant] has failed to establish
              that the evidence could not have been discovered through due
              diligence or that the evidence establishes his innocence.

We agree with the district court.

       a.     Due diligence

       Roberts explained that:

              The complaint against Roberts alleged that the crime lab
              analyzed the substance in this case and identified it as cocaine.
              Roberts therefore knew that the charge against him was based
              on the crime lab’s test results. He had access to the test results
              under the discovery rules. He could have challenged the
              foundational reliability of the test results. If Roberts was
              financially unable to obtain expert review of the test results, he
              could have requested public funds for that purpose.
                      Roberts 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. Instead, he merely
              asserts that the deficiencies in the crime lab’s procedure could
              not have been discovered with due diligence because no one
              had reason to suspect problems at the crime lab. That assertion
              is belied by Roberts’s postconviction submissions, which show
              that the defendant in the 2012 Dakota county case [i.e., Jensen]
              discovered the deficiencies.          Thus, Roberts has not
              demonstrated that the information regarding the crime lab
              could not have been discovered through the exercise of due
              diligence.

Id. (quotations and citations omitted). The district court, having heard testimony from the

attorney involved in Jensen, applied Roberts:



                                              5
              [Appellant] asserts that he informed his attorney [in the 2008
              case that] . . . he had reason to question whether the substance
              sold was, in fact, cocaine. However, [appellant’s attorney] has
              no recollection of [appellant] challenging the drug evidence,
              nor did she make a note in her file to indicate this. [Appellant]
              was aware that the allegations against him were based upon the
              crime lab’s results. Additionally, he and his attorney received
              the lab report as part of the state’s discovery. [Appellant] could
              have challenged the foundational reliability of this
              evidence. . . . As with the appellant in Roberts, [appellant] did
              not make any effort to investigate the validity of the test[]
              results.

       Appellant argued to the district court, as he argues on appeal, that due diligence of

himself or his attorney could not have led to the discovery of the SPPDCL problems

because the attorney in Jensen “went above and beyond due diligence and has specialized

science training that alerted [her] to the problems.” The district court, having heard

testimony from the Jensen attorney, noted that she

              testified that she had no specialized knowledge about drug
              testing at the time she began to realize problems existed [at
              SPPDCL.] [Her] testimony and the way in which she
              discovered the issues at [SPPDCL] belies [appellant’s]
              argument that due diligence was not enough to uncover the
              deficiencies.
                      [The attorney’s] curiosity and desire to learn more about
              drug testing led to discovery of the deficiencies at [SPPDCL].
              She did not have specialized training. Any attorney could have
              requested the full discovery file and asked to meet with a crime
              lab analyst as she and her colleague did. Therefore, [appellant]
              cannot satisfy the due diligence prong of the newly discovered
              evidence exception.

Appellant disagrees with the Roberts conclusion that due diligence could have led to the

discovery of the evidence and with the district court’s following of Roberts. But the district

court and this court are both obliged to follow this court’s published decisions, particularly



                                              6
those on which review has been denied. See Sefkow v. Sefkow, 427 N.W.2d 203, 213

(Minn. 1988).

       b.     Clear-and-Convincing Evidence of Innocence

       To meet the newly discovered evidence criteria, the evidence must establish “actual

innocence.” Riley v. State, 819 N.W.2d 162, 170 (Minn. 2012). “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. Here,

appellant admitted to an investigator that he sold an ounce of cocaine on July 3 and sold

cocaine on two dates in June; he pleaded guilty to first-degree controlled substance crime

based on those sales, testifying that he had engaged in the sale of a substance he knew was

cocaine; he admitted to using cocaine from the same source himself; and he told a probation

officer doing the presentence investigation that he sold cocaine. In light of appellant’s

admissions immediately after arrest, at the plea hearing, and during the presentence

investigation, evidence about the problems at SPPDCL four years later would have been

unlikely to prevent a jury from finding appellant guilty or to establish his “actual

innocence.”

       Although appellant testified in 2014 that he doubted whether the substance he sold

in 2008 was actually cocaine and that he pled guilty to avoid jail time, his 2008 attorney

testified that she had no recollection and no notes of appellant ever telling her that he

doubted the substance he sold was cocaine.




                                             7
          The district court did not abuse its discretion in finding that, because the SPPDCL

findings were not newly discovered evidence, appellant was not entitled to postconviction

relief.

2.        Ineffective Assistance of Counsel

          “We review the denial of postconviction relief based on a claim of ineffective

assistance of counsel de novo because such a claim involves a mixed question of law and

fact.” Hawes v. State, 826 N.W.2d 775, 782 (Minn. 2013). For an ineffective-assistance-

of-counsel claim to succeed,

                [t]he defendant must affirmatively prove that his counsel’s
                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.            A reasonable
                probability is a probability sufficient to undermine confidence
                in the outcome.

Gates v. State, 398 N.W.2d 558, 561 (Minn. 1987) (quotations and citation omitted).

          Appellant argues that his counsel’s failure to request the full lab report was

ineffective assistance. But, as the district court noted,

                it was not customary for defense counsel to request the full lab
                report in controlled substance cases at that time [i.e., in 2008.
                Appellant’s] counsel had no reason to request the full lab report
                then. The only evidence to suggest [appellant] told his attorney
                that the substance may not have been cocaine is [appellant’s]
                present self-serving statements. The [c]ourt does not find
                [appellant’s] testimony credible. [His 2008 attorney] does not
                recall [appellant] ever challenging that the substance was
                cocaine nor did she make any note in her file to reflect such a
                statement. [Appellant] elected to accept a plea bargain rather
                than challenge the [SPPDCL] test results. The decision not to
                pursue a challenge to the test results constitutes trial strategy.



                                                8
Appellant presents no evidence to refute the district court’s statements, and “due regard

shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

Minn. R. Civ. P. 52.01.

       Even if counsel’s failure to obtain the full lab report did fall below the standard of

reasonable representation, appellant’s ineffective-assistance claim would fail because,

again, evidence of his statements to the police, the investigator, and the parole officer that

he had sold cocaine would have precluded any result other than his conviction.

3.     Brady Violation

       This court conducts a de novo review of Brady-violation rulings. Pederson v. State,

692 N.W.2d 452, 460 (Minn. 2005). A Brady violation requires a showing that the

evidence was favorable to the defendant as exculpating or impeaching; the prosecution

suppressed the evidence, intentionally or otherwise; and the evidence was material, so the

defendant was prejudiced. Walen v. State, 777 N.W.2d 213, 216 (Minn. 2010).

       The district court concluded that appellant was not entitled to a hearing on his Brady

violation claim because he “failed to present any evidence that the [s]tate ha[d] any

knowledge of the [SPPDCL] issues in 2008” and, absent knowledge of the evidence, the

state could not have suppressed it. Appellant argues that “[i]f the evidence [of problems at

SPPDCL] was available at the time of trial, prosecutors should have disclosed it,” but does

not explain that such evidence was available at the time of trial. Appellant says further that

“[t]]here is a material question of fact as to whether the prosecutor or the police knew about

the problems at the lab at the time of [a]ppellant’s trial” but, again, he offers nothing to

indicate even the possibility of such knowledge. Finally, a Brady violation also requires a


                                               9
showing of prejudice, in this context “a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” State v.

Hunt, 615 N.W.2d 294, 299 (Minn. 2000) (quotation and citation omitted). Evidence of

appellant’s repeated admissions that he had sold cocaine preclude any reasonable

probability that a jury would not have convicted him.

       Affirmed.




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