Jermaine Octavious Stansberry, 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This opinion will be unpublished and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
A19-1132

Jermaine Octavious Stansberry, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 20, 2020
Affirmed
Jesson, Judge

Hennepin County District Court
File No. 27-CR-02-070442

Zachary A. Longsdorf, Longsdorf Law Firm, PLC, Inver Grove Heights, Minnesota (for
appellant)

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

Michael O. Freeman, Hennepin County Attorney , Jordan W. Rude, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Jesson, Judge; and
Smith, Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
JESSON, Judge
Nearly 16 years after a ju ry found him guilty of second-degree murder, first-degree
aggravated robbery, and unlawful possession of a firearm, appellant Jermaine Octavious

2
Stansberry seeks postconviction relief, including a new trial. Notwithstanding his previous
appeals, Stansberry now offe rs what he claims is newl y discovered evidence of his
innocence. But because his pe tition is time-barred and does not satisfy any exception to
the rule, the district court did not abuse its discretion in summarily denying him relief.
Accordingly, we affirm.
FACTS
On a Saturday night in August 2002, appellant Jermaine Octavious Stansberry was
out with friends (including R. H.) in downtown Minneapolis. As bars were closing,
Stansberry and his friends got into an argument on the sidewalk with D.H., a University of
Minnesota football player. Stansberry ripp ed off a gold chain necklace that D.H. was
wearing, and then Stansberry and his friends “jumped” D.H. They punched him, kicked
him, and stomped on him when he fell to the ground. Once he was unconscious, they rifled
through his pockets, stealing his phone and money, before fleeing as the police approached.
D.H. declined medical assistance and was able to get up, but had cuts and scrapes from the
attack.
Upset that the attackers stole his neckla ce, D.H. told his friends, many of whom
were also university football players. Wo rd spread quickly. Several people came
downtown to make sure that D.H. was okay and to try to get his chain back.
After the initial assault, the two groups —Stansberry and his fri ends and D.H. and
his friends—ran into each other at least twic e more, resulting in more fights. The police
sprayed mace into the crowd downtown to try to get people to stop fighting and go home.
Many witnesses described the scene as chaotic.

3
After learning that D.H. was attacked, his teammate B.H. went downtown. At some
point, B.H. and his friends encountered Stan sberry, R.H., and thei r friends near the
intersection of Hennepin Avenue and Third Street. And during this final confrontation,
Stansberry shot B.H. in his left arm and chest area. B.H. staggered and eventually
collapsed, where a crowd formed around him. Police tried to save him, but he later died at
the hospital. Stansberry was arrested shortly after the shooting.
The state charged Stansberry with se cond-degree intentional murder of B.H.,
first-degree aggravated robbery of D.H., an d unlawful possession of a firearm. The case
was tried to a jury. Several witnesses testified, including police officers and investigators,
friends of the victims, and others.
Many witnesses testified that they observed, in some fashion, Stansberry shoot B.H.
Some testified that they saw a “flash” come from Stansberry’s hand. Some testified that
they did not see the shot bu t turned after they heard it and saw Stansberry lower his
extended arm as if he had just fired a gun. One witness testified that after she heard the
shot, she saw Stansberry make a “throwing” motion and hear d something metallic hit the
ground. And a gun was found in a place consistent with the direction of the throw. Many
witnesses also identified St ansberry by his clothes 1 and his stocky body type and, when
questioned by police, several witnesses picked him out of photo lineups. And witnesses
testified that, earlier in the night, they heard Stansberry say, “you guys must be looking to
get shot tonight” or that he had “heat,” meaning a gun.

1 That night, Stansberry was wearing a white Wizards jersey with the number 23 on it and
R.H. was wearing a white t-shirt.

4
Stansberry testified that he was not the aggressor in the robbery—his friends were.
And according to Stansberry, he “[n]ever touched that gun” and did not shoot B.H. but his
friend R.H. did.
The jury found Stansberry guilty of all counts. The district court sentenced him to
306 months in prison for second-degree murd er, 116 months for first-degree aggravated
robbery, and 60 months for unlawful possession of a firearm. The terms of imprisonment
for murder and robbery were consecutive, while the term for unlawful possession was
concurrent.
About four years later, Stan sberry filed his first postconviction petition challenging
his sentence under Blakely v. Washington
2 and, among other issues, alleging ineffective
assistance of counsel and newl y discovered evidence. The postconviction court granted
the portion of Stansberry’s petition seeking a Blakely trial regarding his sentence for
aggravated robbery. But the court denied his petition in a ll other respects, finding the
claims had no merit. Stansberry a ppealed, and this court affirmed. Stansberry v. State ,
No. A08-0183, 2009 WL 366323, at *5 (Minn. App. Feb. 17, 2009).
Nearly three years after the appeal had passed without his Blakely trial, Stansberry
filed a request with the court. Noticing the e rror in the delay, the district court held a
Blakely trial and the jury found eight aggravating factors present. And the district court
sentenced Stansberry to 160 months in prison for aggravated robbery. Stansberry appealed

2 In the United States Supreme Court case, Blakely v. Washington , 542 U.S. 296, 305,
124 S. Ct. 2531, 2538 (2004), the Court held that a criminal defendant has a right to a jury
trial on departures from the sentencing guidelines beyond the statutory maximum penalty
based on aggravating factors.

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his sentence to this court, which affirmed. State v. Stansberry, No. A13-1662, 2014 WL
3799897, at *3 (Minn. App. Aug. 4, 2014), review denied (Minn. Oct. 14, 2014).
Finally, more than four years after th is decision, Stansberry filed his second
postconviction petition. The po stconviction court denied th e petition without a hearing,
concluding that his claims were time-barred and procedurally barred. Stansberry appeals.
D E C I S I O N
Stansberry contends that the district court erred by concluding that his
postconviction petition is time-barred. There is no dispute that he filed this postconviction
petition far beyond the two-year time limit. See Minn. Stat. § 590.01, subd. 4 (2018).
Accordingly, the central issue before us is whether an exception to the time-bar is
established, or whether Stansberry raised issu es at least meriting an evidentiary hearing.
The two exceptions Stansberry asserts are for newly discovered evidence and the interests
of justice.3 We review a postconviction court’s denial of both a postconviction petition
and a request for an evidentiary hearing under an abuse-of-discretion standard.
Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017); Caldwell v. State, 853 N.W.2d 766,
770 (Minn. 2014).

3 Stansberry also claims that his trial counsel was ineffective. But be cause he raised this
claim in his previous postconviction appeal, he is procedurally barred from raising it here.
See Townsend v. State , 723 N.W.2d 14, 18 (Minn. 2006 ) (noting that courts will not
consider claims that were raised in an earlier petition for postconviction relief). We decline
to address this argument’s merits further.

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We turn, first, to Stan sberry’s claim of newly discovered evidence. Under
Minnesota law, a court may he ar a postconviction petition afte r the two-year time period
has passed if:
the petitioner alleges the existence of [1] newly discovered
evidence, including scientific evidence, that [2] could not have
been ascertained by the exerci se of due diligence by the
petitioner or petitioner’s attorney within the two-year time
period for filing a postconviction petition, and [3] the evidence
is not cumulative to evidence pres ented at trial, [4] is not for
impeachment purposes, and [5 ] 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). But this exception is not without limit. “Any petition
invoking an exception . . . must be filed within two years of the date the claim arises.” Id.,
subd. 4(c).
For his newly discovered evidence, Stansberry offers an affidavit from an individual
that states that, in 2003, th e affiant overheard a conversation in the jail “bullpen.” The
conversation was between R.H. and Stansberry, in which R.H. said that he would “carry
his own weight” and “admit that Jermaine St ansberry was not the person who shot the
football player if he was asked.” The affidavit is dated February 26, 2019.
According to Stansberry, he did not know that other people ha d overheard R.H.’s
statement and that someone was willing to atte st to it until the affi ant provided him the
affidavit. But, as the district court pointed out, the affiant swore that Stansberry was present
for the conversation. Thus, it appears that St anberry knew of R.H.’s statement in 2003,
which means it is not newly discovered within two years of his petition.

7
Still, Stansberry maintains that, while he knew he was innocent, “he had no
admissible evidence up on which to base a petition for postconviction relief” until he
received the affidavit. But this does not remedy the problem that the affidavit itself
demonstrates that he did know others overheard R.H.’s statement—made in a jail
bullpen—in 2003. See Whittaker v. State , 753 N.W.2d 668, 671-72 (Minn. 2008)
(concluding that testimony was not unknown if the petitioner was present during the events
the witness described). And more importantly, Stansberry knew that R.H.—the speaker of
the allegedly exculpatory statemen t—was present at the shooting. See Evans v. State ,
788 N.W.2d 38, 49 (Minn. 2010) (stating that “[o]ur precedent recognizes that if the source
of the newly discovered evidence was with the defendant at the scene of the crime,” it is
not newly discovered evidence (quotation omitted)). Stansberry’s knowledge of these facts
compels us to conclude that the affidavit is not newly discovered evidence.
Because the evidence was not newly discov ered, it fails to satis fy even the first
element of the exception to the time-bar. And Stansberry must meet all five elements of
the test to overcome the bar. Therefore, the district court did not abuse its discretion by
determining that this claim is ti me-barred and fails to satisfy the
newly-discovered-evidence exception.
Second, we consider Stansberry’s assertion that he satisfies the interests-of-justice
exception to the time-bar. This exception requires that he establish “to the satisfaction of
the court that [his] petition is not frivolous a nd is in the interests of justice.” Minn.
Stat. § 590.01, subd. 4(b)(5). This exception is only met in “exceptional and extraordinary
situations.” Carlton v. State, 816 N.W.2d 590, 607 (Minn. 2012) (quotation omitted). To

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aid courts in this analysis, the Minnes ota Supreme Court has provided the following
analytical framework. When assessing whether to grant relief under the interests-of-justice
exception, “a claim must have substantive merit and the defendant must not have
deliberately and inexcusably failed to raise the issue on direct appeal.” Gassler v. State,
787 N.W.2d 575, 586 (Minn. 2010).4 In addition, “courts should weigh the degree to which
the party alleging error is at fault for that e rror, the degree of fault assigned to the party
defending the alleged error, and whether some fundamental unfairness to the defendant
needs to be addressed.” Id. at 587.
Applying these factors to Stansberry’s claims, we agree with the postconviction
court that this case does not fall into the category of exceptional and extraordinary cases
that meet this exception. Stansberry fails to provide a reasonable excuse as to why he did
not raise this evidence in one of his previous appeals. And he does not explain when he
learned that the affiant overheard R.H.’s statement, how he came to have the affidavit, why
he did not seek out the affiant or other witne sses to R.H.’s statement earlier, and why he
did not seek a statement from R.H. or subpoena him to testify at trial. This failure also
goes to the factors about Stansberry’s degree of fault.5

4 We note that Gassler was partially abrogated on other grounds. See Henderson v. State,
906 N.W.2d 501, 507 (Minn. 2018) (“To the extent that Gassler can be read to hold that a
postconviction court may assess the credibility of evidence without holding an evidentiary
hearing, that reading is incorrect.”).
5 Stansberry acknowledges that he raised issues with his trial counsel’s lack of investigation
earlier in a pro se supplemental brief during his postconviction appeal. But this court
concluded that his “counsel’s representation ne ither fell below an ob jective standard of
reasonableness nor prejudiced” him. See Stansberry, 2009 WL 366323, at *4. While this
demonstrates his effort, it also reveals that he was aware of the claims earlier and raised
them already.

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While courts assume that the facts asse rted in a postconviction petition are true,
Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018), Stansberry still bears the burden
to establish facts that entitle him to relief by more th an mere argumentative assertions
without factual support. See Powers v. State, 695 N.W.2d 371, 374 (Minn. 2005). And by
failing to provide additional fact ual information with his petiti on, as described above, he
failed to meet that burden. Thus, when revi ewing the relevant requirements and factors,
we conclude that Stansberry does not satisf y the high bar of the interests-of-justice
exception.6
In sum, Stansberry failed to satisfy either exception to the time-bar. The contents
of the affidavit do not present us with newly discovered evidence. And Stansberry failed
to demonstrate that he meets the high standard set forth in the interests-of-justice exception.
Accordingly, the postconviction court did not abuse its discretion in denying Stansberry’s
petition.
Affirmed.

6 Stansberry also claims that the district c ourt abused its discretion in denying his request
for an evidentiary hearing. An evidentiary hearing is ne cessary unless “the files and
records of the proceeding conclusively show that the petitioner is entitled to no relief.”
Andersen, 913 N.W.2d at 422 (quo tation omitted). Because th e record is clear that
Stansberry’s claims do not satisfy either exception to the time-bar and he is not entitled to
postconviction relief, no evidentiary hearing is necessary.
Stansberry also requested a new trial on a ppeal. But because we conclude that his
petition does not merit even an evidentiary hearing, a new trial is not warranted. See
State v. Beecroft, 813 N.W.2d 814, 846 (Minn. 2012) (noting that reversal and remand for
a new trial “in the interests of justice is li mited to exceptional circumstances” (quotation
omitted)).