Kenny Lee Reed, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0882

Kenny Lee Reed, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed December 30, 2019
Affirmed
Larkin, Judge

Hennepin County District Court
File No. 27-CR-99-102206

Kenny Lee Reed, Berlin, New Hampshire (pro se appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

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

Considered and decided by Slieter, Presiding Judge; Larkin, Judge; and Reyes,
Judge.
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U N P U B L I S H E D O P I N I O N
LARKIN, Judge
Appellant challenges the postconviction court’s summary denial of his second
petition for postconviction relief. We affirm.
FACTS
In December 1999, appellant Kenny Lee Reed pleaded guilty to second -degree
assault stemming from a September 1999 incident in which R.J.T. was shot.1 During the
plea hearing, Reed admitted that he “got into a fight with somebody” and shot that person
in the leg with a firearm. Reed did not know the person he shot, but when asked by the
state, he did not dispute that R.J.T. was the victim of the shooting. Reed assured the district
court that he had had enough time to speak with his attorney and that he was not “mak[ing]
any claim that [he was] not the person who did the shooting.” The district court accepted
Reed’s guilty plea and sentenced him to serve 36 months in prison consecutive to two
additional second-degree assault sentences from another case, for a total of 108 months of
imprisonment.
Reed did not file a direct appeal, but in 2017, he petitioned for postconviction relief,
seeking to withdraw his guilty plea to t he 1999 second -degree assault as unintelligent.
Reed v. State, No. A18 -0691, 2018 WL 6837094, at *1 -2 (Minn. App. Dec. 31, 2018),
review denied (Minn. Mar. 19, 2019). The postconviction court concluded that Reed’s
claim was not time-barred because of “unusual and exceptional circumstances,” considered

1 Appellant is also known as Gordon David Reese.
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Reed’s petition on the merits, and denied relief. Id. at *1. Reed appealed, this court
affirmed the postconviction court’s decision, and the supreme court denied further review.
Id. at *1, *3.
In March 2019, Reed filed a second petition for postconv iction relief, arguing that
he should be allowed to withdraw his guilty plea because he had newly discovered evidence
that proved his innocence. In support of his petition, Reed submitted an affidavit from
R.J.T. R.J.T.’s affidavit stated that Reed was at the party where the shooting occurred, that
R.J.T. “was familiar with [Reed] and knew [Reed],” that “[Reed] did not shoot [him],” and
that R.J.T. “didn’t recognize the guy that shot [him].” R.J.T.’s affidavit also stated that he
“made it clear” to the police that Reed did not shoot him and that he “didn’t press charges
against [Reed] . . . because [Reed] wasn’t the person who shot [him].” Reed also submitted
his own affidavit, in which he claimed that he would not have pleaded guilty if he had
known that “the victim told the cops that [he] wasn’t the shooter.”
The postconviction court denied Reed’s petition for relief as untimely. Reed
appeals.
D E C I S I O N
A person convicted of a crime who claims that the conviction violates his rights
under the Constitution or laws of the United States or Minnesota may petition for
postconviction relief unless direct appellate relief is available. Minn. Stat. § 590.01, subd.
1 (2018). The petition must include “a statement of the facts and the grounds upon which
the petition is based and the relief desired.” Minn. Stat. § 590.02, subd. 1(1) (2018). A
petitioner is entitled to a hearing “[u]nless the petition and the files and records of the
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proceeding conclusi vely show that the petitioner is entitled to no relief.” Minn. Stat.
§ 590.04, subd. 1 (2018).
A petition for postconviction relief must be filed within two years after “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.” Minn. Stat. § 590.01, subd. 4(a)
(2018). But a petition filed after the two -year time limit may be considered if it satisfies
one of several statutory exceptions. See id., subd. 4(b) (2018) (listing exceptions). Under
the newly -discovered-evidence exception to the statutory time bar, a court may hear a
petition for postconviction relief if:
[T]he petitioner alleges the existence of newly
discovered evidence, including scientific evidence, that 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, and the evidence is
not cumulative to evidence presented at trial, is not for
impeachment purposes, and establishes by a clear and
convincing standard that the petitioner is innocent of the
offense or offenses for which the petitioner was convicted[.]

Id., subd. 4(b)(2). All criteria in subdivision 4(b)(2) must be satisfied to obtain relief.
Roberts v. State, 856 N.W.2d 287, 290 (Minn. App. 2014), review denied (Minn. Jan. 28,
2015).
In determining whether an evidentiary hearing is required, a postconviction court
“considers the facts alleged in the petition as true and construes them in the light most
favorable to the petitioner.” Brown v. State, 895 N.W.2d 612, 618 (Minn. 2017). But the
postconviction court may summarily deny a petition as untimely. See Riley v. State, 819
N.W.2d 162, 170-71 (Minn. 2012) (affirming postconviction court’s summary denial of
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petition because petitioner failed to demonstrate an exception applied). “[Appellate courts]
review a postconviction court’s summary denial of a petition for postconviction relief for
an abuse of discretion.” Andersen v. State , 913 N.W.2d 417, 422 ( Minn. 2018). “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.” Id. (quotation omitted).
As the state points out, “[t]o be timely, [Reed] needed to file his petition for
postconviction relief related to his 1999 plea no later than July 31, 2007 (two years after
the statutory time limit was enacted).” 2 Reed recognizes that his petition was untimely,
but he contends here, as he did in district court, that his petition falls under the newly -
discovered-evidence exception to the statut ory time bar. Reed argues that the
postconviction court abused its discretion by denying his petition because R.J.T.’s affidavit
presented newly discovered evidence that could not have been discovered by the exercise
of due diligence within the two-year period for filing a postconviction petition.
The postconviction court reasoned that R.J.T.’s affidavit “clearly does not constitute
newly discovered evidence warranting a hearing because the new evidence could have been
ascertained by the exercise of due diligence by [Reed] or [Reed’s] attorney within the two-
year time period for filing a post -conviction petition.” (Footnote omitted.) The
postconviction court explained:

2 The 2005 amendment to Minn. Stat. § 590.01, subd. 4, enacting the two -year statutory
time bar for postconviction petitions became “effective August 1, 2005” and provided that
“[a]ny person whose conviction became final before August 1, 2005, shall have two years
after the effective date of this act to file a petition for postconviction relief.” 2005 Minn.
Laws ch. 136, art. 14, § 13, at 1097-98.
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[Reed] and the Victim knew each other, so there is n o
claim here of a previously unidentified witness. Moreover, the
Victim says he always maintained [Reed’s] innocence, so this
supposedly exculpatory evidence was available before [Reed]
pleaded guilty. Finally [Reed] thought his attorney had
interviewed the Victim, and there is no claim that the Victim
was not cooperative.
Since the newly discovered evidence could have been
ascertained by the exercise of due diligence by [Reed] or
[Reed’s] attorney, the Petition fails to meet the requirements of
Minn. Stat. § 590.01, subd. 4(b)(2) and should be denied.

(Footnote omitted.)
For the reasons that follow, Reed fails to persuade us that the postconviction court
abused its discretion. First, Reed concedes that, before he pleaded guilty, he knew that
R.J.T. was the victim of the shooting. Yet, he did not present R.J.T.’s affidavit as a basis
for relief until approximately 19 years after his conviction. Reed does not describe any
efforts that he or his attorney took to obtain the exonerating statement from R.J.T. earlier.
See Saiki v. State, 375 N.W.2d 547, 549 (Minn. App. 1985) (concluding that petitioner had
not shown that newly discovered witness could not have been discovered earlier through
due diligence where record did “not show what efforts were mad e to locate the witness”),
review denied (Minn. Dec. 19, 1985).
Second, as the postconviction court noted, because Reed was present at the scene of
the shooting, Reed is imputed with knowledge of the substance of the testimony R.J.T.
might have provided a t trial. See State v. Caldwell , 803 N.W.2d 373, 389 ( Minn. 2011)
(explaining that “testimony is not unknown to the petitioner when a potential witness is
present at the scene of the crime with the petitioner, and the petitioner knows the substance
of the testimony that the witness might provide”).
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As the postconviction court reasoned, because R.J.T. “always maintained [Reed’s]
innocence” and “this supposedly exculpatory evidence was available before [Reed]
pleaded guilty,” R.J.T.’s affidavit “clearly do es not constitute newly discovered evidence
warranting a hearing because [it] could have been ascertained by the exercise of due
diligence . . . within the two -year time period for filing a post -conviction petition.”
(Footnote omitted.)
In sum, Reed has not met his burden to establish that the purported newly discovered
evidence could not have been discovered with due diligence. See Pippitt, 737 N.W.2d at
226 (stating that a postconviction petitioner “has the burden of showing that he is entitled
to relief”). Thus, the postconviction court did not abuse its discretion by concluding that
the newly-discovered-evidence exception to the statutory time bar is inapplicable.
Reed raises several other issues on appeal. He argues that the interests-of-justice
exception to the statutory time bar applies, that the state violated Brady v. Maryland, 373
U.S. 83, 83 S. Ct. 1194 (1963), and that the state engaged in prosecutorial misconduct.
Because Reed did not raise those issues in the underlying postconviction proceeding, we
do not consider them. See Azure v. State, 700 N.W.2d 443, 447 ( Minn. 2005) (“It is well
settled that a party may not raise issues for the first time on appeal from denial of
postconviction relief.” (quotation omitted)).
Affirmed.