Opinion
A22-1634
05-19-2023
Fred Banjo, petitioner, Appellant, v. State of Minnesota, Respondent.
Wright County District Court File No. 86-CR-17-40
Considered and decided by Cochran, Presiding Judge; Worke, Judge; and Smith, Tracy M., Judge.
ORDER OPINION
Renee L. Worke, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In April 2017, a jury found appellant Fred Banjo guilty of several counts, including first-degree criminal sexual conduct. On direct appeal, Banjo argued that the district court abused its discretion by admitting the victim's prior statements. This court affirmed and the supreme court denied further review. State v. Banjo, No. A17-2073 (Minn.App. Dec. 24, 2018), rev. denied (Minn. Feb. 27, 2019).
2. In February 2021, Banjo filed his first petition for postconviction relief. He claimed that he received ineffective assistance of counsel, scientific evidence should have been offered at trial, and the victim unreliably reported the offense because of her "recently diagnosed" post-traumatic stress disorder (PTSD). The district court denied Banjo relief, ruling that his claims were procedurally barred because he could have raised them on direct appeal.
3. In August 2022, Banjo filed his second petition for postconviction relief. He claimed that newly discovered evidence, a letter written by a psychologist to Banjo's attorney, explained why the victim's PTSD caused her to falsely report the assault. In the letter, the psychologist stated that while an individual "under stress" could reexperience trauma, he "had no direct contact with [the victim]" and did not review records "pertaining to her PTSD." The psychologist offered "no solid opinion." Banjo also claimed that his trial counsel was ineffective for failing to adequately investigate and present necessary evidence, and his appellate counsel was ineffective on direct appeal for failing to challenge trial counsel's performance.
4. In October 2022, the district court denied Banjo relief without an evidentiary hearing. The district court concluded that Banjo's petition was untimely, and the letter was not newly discovered because the victim's PTSD was known at the time of trial. The district court concluded that Banjo's ineffective-assistance-of-counsel claims were Knaffla-barred because Banjo could have raised them on direct appeal or in his first postconviction petition.
5. Banjo now appeals the district court's denial of his second postconviction petition. This court reviews the denial of postconviction relief for an abuse of discretion. Hannon v. State, 957 N.W.2d 425, 432 (Minn. 2021). We will not reverse unless the district court "exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual findings." Id. (quotation omitted).
6. A postconviction petition must be filed no more than two years after an appellate court's disposition of a direct appeal. Minn. Stat. § 590.01, subd. 4(a)(2) (2022). As the district court determined, Banjo's petition was untimely because his conviction became final in May 2019, and he did not file his petition until August 2022.
7. A district court may hear an untimely petition if the petitioner alleges newly discovered evidence or it is in the interests of justice. Id., subd. 4(b)(2), (5) (2022).
8. To satisfy the newly-discovered-evidence exception, Banjo must show that the evidence: (1) is newly discovered; (2) could not have been ascertained by the exercise of due diligence within the two-year time-bar; (3) is not cumulative or impeaching; and (4) establishes by clear and convincing evidence that he is innocent. See Caldwell v. State, 976 N.W.2d 131, 138 (Minn. 2022).
9. Banjo fails to show that this exception applies. The letter is not newly discovered because the victim's PTSD was known at the time of trial, the letter could have been ascertained at the time of trial, and the letter does not show that Banjo is innocent. The psychologist offered "no solid opinion" whether the victim falsely reported the assault because he had "no direct contact" with the victim and did not review her records.
10. "The interests-of-justice exception requires the petitioner to establish . . . that the petition is not frivolous and is in the interests of justice." Id. at 141 (quotation omitted). This exception is "triggered by an injustice" that caused the petitioner to fail to file a timely petition, "not the substantive claims in the petition." Id. (quotation and emphasis omitted). This exception applies "only in exceptional and extraordinary situations." Carlton v. State, 816 N.W.2d 590, 607 (Minn. 2012) (quotation omitted).
11. Banjo claims that this was his first opportunity to present evidence of the victim's PTSD. But he has not alleged an injustice that prevented him from filing his petition within two years. The district court appropriately determined that Banjo's newly-discovered-evidence claim is untimely.
12. The district court also determined that Banjo's ineffective-assistance-of-counsel claims were procedurally barred. A claim is procedurally barred-Knaffla-barred-when it was raised, or could have been raised, in a direct appeal or a previous postconviction petition. State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976); see also Minn. Stat. § 590.01, subd. 1 (2022). There are two exceptions: (1) when a novel legal issue arises that was previously unavailable, or (2) when the interests of justice require review. Zumberge v. State, 937 N.W.2d 406, 411-12 (Minn. 2019). The petitioner must have not "deliberately and inexcusably" failed to raise the claim previously and the claim must have substantive merit. Colbert v. State, 870 N.W.2d 616, 626 (Minn. 2015).
13. The district court appropriately concluded that Banjo's ineffective-assistance-of-counsel claims were Knaffla barred. Banjo raised an ineffective-assistance-of-trial-counsel claim in his first postconviction petition. Banjo's ineffective-assistance-of-appellate-counsel claim is based on appellate counsel not challenging trial counsel's performance on direct appeal. Therefore, Banjo was aware of the claim at the time of his first petition and he could have, and should have, raised it then.
IT IS HEREBY ORDERED:
1. The district court's order is affirmed.
2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.