Jermaine Sylvester Watkins, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-1170

Jermaine Sylvester Watkins, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 2, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-13-16209

Mark J. Miller, Mark J. Miller, P.A., Minneapolis, Minnesota; and Daniel S. Adkins, North
Star Criminal Defense, St. Paul, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorney, Jonathan P. Schmidt, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Bjorkman, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In this appeal from the denial of postc onviction relief, appellant argues that newly
discovered evidence and ineffective assistance of counsel by his trial and former appellate

2
attorneys entitle him to a new trial. Because the postconviction c ourt did not abuse its
discretion in denying relief without an evidentiary hearing, we affirm.
FACTS
This case stems from an aggravated robbery and kidnapping that occurred on May 1,
2013. The victim eventually escaped his captors and identified appellant Jermaine
Sylvester Watkins as one of th e two assailants. Watkins was charged with two counts of
felony aiding and abetting first-degree aggravated robbery and one count of felony aiding
and abetting kidnapping. At trial in the summer of 2014, the victim testified that he could
not remember most of what had happened on May 1 and could no longer identify Watkins
as one of his assailants. The jury found Watkins guilty of all three counts.
With new appellate counsel, Watkins directly appealed his convictions to this court
in October 2014, arguing that the district court erred in admitting the victim’s out-of-court
statements as substantive evidence and that he was entitled to a new trial because the state
had known of the victim’s memory loss weeks before trial but failed to disclose that
information. State v. Watkins, No. A14-1772, 2016 WL 1174825, at *2, *5 (Minn. App.
Mar. 28, 2016). While his appeal was pending, Watkins filed a petition for postconviction
relief, asserting that his trial counsel had failed to convey a settlement offer to him before
his trial began. This court stayed the direct appeal to permit resolution of the
postconviction petition. In July 2015, the postconviction court denied Watkins’s petition,
noting that he had failed to request specific relief or alle ge facts entitling him to any sort
of relief. Watkins’s appeal was then reinstated. Watkins did not add the denial of his

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petition for postconviction relief to his appeal. In March 2016, this court affirmed his
convictions. See id.
In February 2017, Watkins, with the assistance of yet another set of lawyers, filed
the petition for postconviction relief at issue he re. He asserted four grounds for relief,
which he identified by Roman numerals I through IV:
I. Watkins’s co-defendant’s guilty pl ea was newly discovered evidence
showing that the co-defendant was solely responsible for the crime;
II. The state concealed know ledge of the victim’s amnesia, which led to an
unfair trial;
III. A settlement offer was not communicated to Watkins until after the trial had
started; and
IV. Watkins’s trial and appellate coun sel had both been ineffective.
In support of his petition, Watkins submitted an affidavit stating that he was unaware of
the victim’s memory issues and the state’s settlement offer prior to trial and that he would
have proceeded differently had he known of them.
In mid-June, after the state filed its response to Watkins’s petition, his counsel sent
the postconviction court a letter stating that, in the interest of “streamlining the issues,” it
was Watkins’s position that two issues rema ined unresolved: the discovery of new
evidence in the form of his co-defendant’s pl ea, and whether a plea offer was effectively
communicated to him.
Two weeks later, the postconv iction court filed its orde r denying an evidentiary
hearing and denying Watkins’s petition for postconviction relief. The postconviction court

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explained that it understood the letter from Wa tkins’s counsel to be narrowing the issues
to only the discovery of new ev idence regarding his co-defendant’s guilty plea (issue I in
the petition) and whether the settlement offer was timely communicated (issue III), and to
be waiving Watkins’s other two arguments (issues II and IV). Analyzing the newly-
discovered-evidence claim, the postconviction court concluded that Watkins had failed to
meet his burden of esta blishing his claim. As to th e failure-to-communicate-settlement-
offer claim, the court concluded that this issue should have been raised in Watkins’s direct
appeal and thus was procedurally barred.
Watkins appeals.
D E C I S I O N
We review the denial of a postconviction petition, incl uding the denial of relief
without an evidentiary hearing, for an abuse of discretion. See State v. Nicks, 831 N.W.2d
493, 503 (Minn. 2013). We review legal issues de novo and factual issues by considering
whether there is sufficient evidence to support the postconviction court’s findings. See
Vance v. State, 752 N.W.2d 509, 512 (Minn. 2008). We resolve all doubts about whether
an evidentiary hearin g is necessary in favor of the petitioner. See Bobo v. State , 820
N.W.2d 511, 516 (Minn. 2012).
“The postconviction court may summarily deny a petition without holding a hearing
if the petition, files, and records conclusive ly show that the petiti oner is not entitled to
relief.” Hooper v. State, 888 N.W.2d 138, 141 (Minn. 2016 ). A hearing is not required
“[w]hen a petitioner alleges facts that, even if true, are legally insufficient to entitle him to
the requested relief.” Hughes v. State, 851 N.W.2d 49, 52 (Minn. 2014). For instance, no

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hearing is required if the petition is procedurally barred. Colbert v. State, 870 N.W.2d 616,
622 (Minn. 2015). Once a direct appeal has been taken, “all matters raised therein, and all
claims known but not raised,” are procedura lly barred and will not be considered on a
subsequent petition for pos tconviction relief. See State v. Knaffla , 309 Minn. 246, 252,
243 N.W.2d 737, 741 (1976).
I. Watkins failed to assert a sufficient claim for relief based on newly discovered
evidence.

Watkins argues he is entitled to a new tria l due to “recently discovered evidence
indicating that the State adopted two conflicti ng theories in conjunction with prosecuting
the case against [Watkins as] . . . a participant in a group of perpetrators, but then adopting
the theory that a single person, [Watkins’s co-defendant], perpetrated the charged offense
without any assistance.” The postconviction court rejected Watkins’s newly-discovered-
evidence claim on the merits.
To obtain an evid entiary hearing on a timely pos tconviction claim of newly
discovered evidence, a petitioner must “allege facts that, if proven by a fair preponderance
of the evidence, would satisfy the four-prong test set forth in Rainer v. State, 566 N.W.2d
692 (Minn. 1997).” Bobo, 820 N.W.2d at 517. Under Rainer, a petitioner is entitled to a
new trial if the petitioner establishes:
(1) the evidence was not known to the petitioner or counsel at
the time of trial; (2) the failure to learn of the evidence before
trial was not due to a lack of diligence; (3) the evidence is
material, not merely impeaching, cumulative, or doubtful; and
(4) the evidence would probably produce either an acquittal or
a more favorable result.

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Roby v. State, 808 N.W.2d 20, 26 n.5 (Minn. 2011) (citing Rainer, 566 N.W.2d at 695). A
petitioner bears the burden of es tablishing each of the four Rainer prongs in order to be
entitled to relief. Miles v. State, 840 N.W.2d 195, 201 (Minn. 2013).
At the outset, we observe that, althoug h the postconviction court thoroughly
analyzed each Rainer prong in its order denying postc onviction relief, Watkins does not
mention the Rainer test in the argument section of his brief or argue any alleged errors in
the court’s analysis. Watkins has thus ar guably waived the newly-discovered-evidence
claim altogether by not adequately briefing it. See State v. Butcher, 563 N.W.2d 776, 780
(Minn. App. 1997) (issues not briefed are not properly before the appellate court), review
denied (Minn. Aug. 5, 1997).
Yet, even on the merits, Watkins fails to allege facts that, even if true, would satisfy
Rainer. On the basis of the fourth prong alone—that the evidence would probably produce
an acquittal or a more favorable result—Watkins’s assertions are insufficient. He identifies
as newly discovered evidence the fact that hi s co-defendant pleaded guilty in connection
with the crime for which Watk ins was charged. He argues that the co-defendant, by
pleading guilty, acknowledged that he was (in Wa tkins’s words) the “sole perpetrator” of
the crime and asserts that the state employe d two “conflicting theories” in prosecuting
Watkins and his co-defendant. But Watkins’s co-defendant pleaded guilty to aiding and
abetting aggravated robbery. As the postcon viction court observed, “[B]y definition,
aiding and abetting requires at least one other person’s involvement in the commission of
the crime.” The co-defendant’s plea thus did not establish the co-defendant’s sole
responsibility for the crime, and the state did not pursue two conflicting theories in

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prosecuting both Watkins and his co-defendant for aiding-and-abetting crimes. Moreover,
it is doubtful that the new information would probably produce a more favorable result,
given, as described by th e postconviction court, the “copious amount of evidence
connecting [Watkins] to this crime.” Th is evidence included a previous lineup
identification of Watkins by the victim and co-defendant as well as DNA evidence
recovered from the crime scene. Even without reviewing the other Rainer prongs, we
conclude the postconviction court did not abuse its discretion in denying Watkins’s petition
on the basis of newly discovered evidence without an evidentiary hearing.
II. Watkins failed to assert a sufficient basis for relief on his ineffective-assistance-
of-counsel claims.

Watkins argues that, “complet ely unbeknownst to him, an offer of settlement was
made to his trial counsel which was not communicated to Appellant himself until after the
trial had started.” Watkins asse rts that this failure was “per se ineffective assistance of
counsel.” Watkins also argued in his postconvi ction petition, as a separate issue, that his
appellate and trial counsel were generally ineffective. The postconviction court concluded
that the ineffective-assistance-of-counsel claims were waived by a letter from his counsel
and that the plea-offer-communication claim was procedurally barred because it was “the
sole issue cited in his first petition” and coul d have been brought wh en Watkins’s direct
appeal was reinstated.
Because Watkins previously raised an ineffective-a ssistance-of-counsel claim
regarding his trial attorney’s failure to communicate a plea offer in his initial
postconviction petition, that claim is barred by Knaffla. See Knaffla, 309 Minn. at 252,

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243 N.W.2d at 741. However, because it cannot be raised on direct appeal, an ineffective-
assistance-of-appellate-counsel claim is not barred by Knaffla. See Leake v. State , 737
N.W.2d 531, 536 (Minn. 2007 ). We must necessarily cons ider, on a subsequent petition
for postconviction relief, whether trial counsel wa s ineffective as part of our review of
whether Watkins’s appellate counsel was ineffective for not pursuing the plea-
communication claim in the direct appeal. See Fields v. State, 733 N.W.2d 465, 468 (Minn.
2007) (“When an ineffective as sistance of appellate counsel claim is based on appellate
counsel’s failure to raise an ineffective assistance of trial counsel claim, the appellant must
first show that trial counsel was ineffective.”).
However, the postconviction court interprete d Watkins’s June letter clarifying the
postconviction issues as waivi ng any ineffective-assistance-o f-appellate-counsel claims.
The letter stated:
Based on the State’s response to our pending motion,
and in the interest of streamlining the issues before the Court,
it is Mr. Watkins’s position th at the remaining unresolved
issues for the Court to consider in this matter would be: 1) the
discovery of new evidence, specifically the factual basis
provided in the co-defendant’s plea; and 2) whether a plea offer
was effectively conveyed, given the lack of any record and the
purported timing of its communication.
There is no longer a dispute that an offer was made, one
for substantially fewer months than the one imposed, and
which would also have avoided the amended complaint and
resulting consecutive time. Howe ver, we continue to assert
that the offer was not known meaningfully by Mr. Watkins as
the trial started, and that lack of knowledge is consequential.
To that end, we continue to se ek a hearing, however brief, to
establish these claims more fully.

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This letter identified two issues for resolution, which had been identified as issues I and III
in the petition. Excluded from the letter were the two other issues Wa tkins raised in his
petition: that the state concealed knowledge of the victim’s amnesia (issue II) and that
Watkins was deprived of effective trial and appellate counsel (issue IV). Considering that
Watkins identified his ineffec tive-assistance-of-counsel claims separately from his plea-
communication claim in his petition, and consider ing that the letter affirmatively stated
that there were only two unreso lved issues for the postconvi ction court to consider, we
conclude that the postconviction court did not abuse its discre tion in construing the letter
as waiving those claims initially raised in the petition but not identified as remaining
unresolved, including the ineffective-assistance-of-appellate-counsel claim.
However, even if the postconviction court had considered Watkins’s ineffective-
assistance-of-counsel claim regarding the plea communication on its merits, Watkins was
still not entitled to relief. “To prove ineffective assistance of counsel, a defendant must
show that (1) his attorney ’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that the outcome would have been
different, but for counsel’s errors.” State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017)
(quotations omitted); see also Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S. Ct.
2052, 2064, 2068 (1984). As to the first prong, while it likely would have been objectively
unreasonable for Watkins’s atto rney to fail to disclose a plea offer altogether, Watkins
admits in his affidavit that he did learn of the offer, albeit during the trial, and does not
explain how he came to know this information; it is unclear whether his attorney did in fact
communicate the offer. As to the second pron g, Watkins’s affidavit fails to sufficiently

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assert prejudice; Watkins does not allege that he ever attempted to accept the offer after
learning of it, nor does he suggest that the offer was unava ilable to him at trial. Because
Watkins’s assertions in his affidavit, even if true, are insufficient to establish a Strickland
violation, the postconviction court did not abuse its discretion in denying relief on this basis
without an evidentiary hearing.1
Affirmed.

1 In his brief to this court, Watkins asserted another basis for reversal, arguing that the state
improperly failed to disclose the victim’s amnesia prior to trial. At oral argument, however,
Watkins conceded th at this claim is Knaffla barred. It is. In his direct appeal, Watkins
argued that the prosecution’s alleged failure to disclose the victim’s memory loss prior to
trial was prosecutorial misconduct that amounted to a Brady violation. Watkins, 2016 WL
1174825, at *5; see Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963)
(“[T]he suppression by the prosecution of evid ence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”). Watkins cannot raise the
same claim again in a petition for postconviction relief. See Knaffla, 309 Minn. at 252,
243 N.W.2d at 741.