Kenny Lee Reed, FKA: Gordon David Reese, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0491

Kenny Lee Reed, FKA: Gordon David Reese, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed October 18, 2021
Affirmed
Hooten, Judge

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

Gordon Reese, Berlin, New Hampshire (pro se appellant)

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

Considered and decided by Smith, Tracy M. , Presiding Judge; Bjorkman, Judge;
and Hooten, Judge.
NONPRECEDENTIAL OPINION
HOOTEN, Judge
In this appeal from the district court’s order denying his third petition for
postconviction relief, appellant argues that the district court erred by concluding that his
claims of ineffective assistance of counsel and newly discovered evidence were
procedurally barred. We affirm.
FACTS
In this appeal from the district court’s order denying his third petition for
postconviction relief, appellant argues that the district court erred by concluding that his
claims of ineffective assistance of counsel and newl y discovered evidence were
procedurally barred. We affirm.
FACTS
The state charged appellant Gordon Reese 1 with second -degree assault after a
complainant, R.J.T., identified Reese as the individual who followed him from a party and
shot him in the leg and ankle on September 23, 1999. After discovering Reese’s previous
conviction for a crime of violence, the state also charged him with unlawfully possessing
a firearm. Reese agreed to plead guilty to the assault charge relating to the shooting of
R.J.T., along with two other second -degree assault charges associated with a shooting in
July 1999, with the understanding that the state would drop the felon in possession charge.
After he pleaded guilty on December 7, 1999, the district court accepted his plea and
convicted him for the second -degree assault offenses, sentencing him to 108 months in
prison.
In March 2017, Reese filed a pro se error coram nobis asking to withdraw his guilty
plea to the second -degree assault charge related to R.J.T.’s shooting. He challenged the
validity of the pleas and argued that the plea was not knowing, intelligent, or voluntary
because his trial counsel failed to inform him of his rights. See Minn. R. Crim. P. 15.01.

1 Although Gordon David Reese is now known as Kenny Lee Reed, we will use the name
by which he was known at the time of the offense.
The district court construed the writ as a petition for postconviction relief and denied it on
the merits. We subsequently affirmed the denial. See Reed v. State, A18-0691, 2018 WL
6837094, at *3 (Minn. App. Dec. 31, 2018), rev. denied (Minn. Mar. 19, 2019).
Reese filed a second petition for postconviction relief in March 2019. He alleged
that newly discovered evidence, an affidavit from R.J.T., entitled him to a withdrawal of
his guilty plea. The affidavit alleged that police pressured R.J.T. to identify Reese as the
person who shot him and identified a man speaking Spanish as the real assailant. Reese
also alleged that his trial counsel was ineffective because she knew of R.J.T.’s new
allegations concerning his assault but failed to disclose them to Reese. The district court
denied the petition for postconviction relief, concluding that R.J.T.’s affidavit was not
newly discovered evidence because it could have been ascertained by either Reese or his
attorney prior to his most recen t petition for postconviction relief. We subsequently
affirmed the district court’s decision. See Reed v. State, A19-0882, 2019 WL 7287091, at
*3 (Minn. App. 2019), rev. denied (Minn. Mar. 17, 2020).
Reese then filed a third petition for postconviction relief asking to withdraw his
guilty plea. He raised a number of claims related to R.J.T.’s affidavit and he also presented
the district court with an affidavit from a new witness, A.J.F., who alleged that R.J.T.
revealed to him that a man speaking Spanis h was his assailant in the September 1999
shooting. The district court denied the petition, concluding that the claims Reese raised
were procedurally barred pursuant to State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976).
Reese now appeals.

DECISION
Reese challenges the district court’s denial of his petition for postconviction relief
without an evidentiary hearing. We review the district court’s decision denying a
postconviction petition for an abuse of discretion. Matakis v. State, 862 N.W.2d 33, 36
(Minn. 2015). We review legal issues de novo, but our factual review “is limited to whether
there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.
(quotation omitted). We will not reverse its decision unless the co urt “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).
a. Knaffla-Barred Claims
Once a defendant directly appeals his conviction, all matters raised in that appeal or
known at the time of appeal will not be considered by a court reviewing a subsequent
petition for relief. Knaffla, 243 N.W.2d at 741; see also Minn. Stat. § 590.04, subd. 3
(2020). This rule applies if a defendant knew or should have known about the issue at the
time of appeal. See Black v. State , 560 N.W.2d 83, 85 (Minn. 1997). A postconviction
court may similarly deny a successive petition for postconviction relief if the petition raises
claims that are similar in substance to claims raised in previous postconviction petitions.
Perry v. State, 595 N.W.2d 197, 200 (Minn. 1999).
We have recognized two exceptions to the Knaffla rule. 243 N.W.2d at 741. First,
a postconviction court may hear and consider a claim that was previously known but not
raised if the claim is so novel that its legal basis was not reasonably available at the time
of the direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995) (citation omitted).
Second, even if the claim contained in a petition for postconviction relief was known at the
time of the direct appeal or its legal basis was reasonably available, we allow substantive
review of the claim when fairness so requires, and if the petitioner did not “deliberately
and inexcusably” fail to raise the issue on direct appeal. Id. (citation omitted).
Reese raised a number of claims in his third postconviction petition and all but two
of these claims relate to R.J.T.’s affidavit. Those claims include that (1) his trial attorney’s
conduct was ineffective for failing to properly investigate R.J.T.’s claims that police
pressured him to identify Reese as his assailant; (2) his appellate counsel was inef fective
for failing to raise the issue of R.J.T.’s affidavit on appeal; (3) officers committed
misconduct by pressuring R.J.T. to identify Reese as his assailant; (4) prosecutors
committed misconduct by failing to reveal the officer’s alleged pressuring of R.J.T.; (5)
newly discovered evidence in the form of an affidavit from a witness, A.J.F., who spoke
with R.J.T. shortly after the shooting, entitles Reese to a withdrawal of his guilty plea; and
(6) police officers failed to reveal A.J.F.’s statement to Reese and his attorney. The district
court concluded that these claims were all procedurally barred under Knaffla. 243 N.W.2d
at 741.
We agree with the district court that it did not need to address the bulk of Reese’s
claims. Reese raised the issue of R.J.T.’s affidavit in his second postconviction petition
and alleged that the affidavit, as newly discovered evidence, entitled him to relief. He also
contended that his trial attorney was aware of R.J.T.’s statements concerning the identity
of his assailant and misrepresented those statements to Reese. In his third postconviction
petition, Reese raises these claims again, along with other arguments related to R.J.T.’s
affidavit. But Reese knew or should have known of these arguments at the time the court
addressed his second postconviction petition and he failed to raise them. See Williams v.
State, 869 N.W.2d 316, 318 (Minn. 2015) (explaining that the Knaffla rule bars
consideration of claims previously raised or claims that the postconviction defendant could
have raised). This failure precludes the postconviction court from addressing the claims
unless a Knaffla exception applies. Roby, 531 N.W.2d at 484. A nd we conclude that
neither exception applies because none of these claims are novel in nature, and Reese has
not established that these claims have substantial merit and are being asserted without
deliberate or inexcusable delay. Id. We therefore conclude that the postconviction court
did not err when it concluded that the claims related to R.J.T.’s affidavit were barred by
the Knaffla rule.
b. Time Barred Claims
Reese’s remaining arguments, however, are not Knaffla barred. In his third
postconviction petition, Reese raised two additional claims he argued entitled him to relief:
(1) he introduced an affidavit from a witness, A.J.F., who alleged that he saw four men,
one of whom spoke Spanish, running away from the scene of R.J.T.’s shooting, and that
he recalled R.J.T. telling officers on the night of the shooting that he was shot by a Mexican
man he did not know; and (2) police failed to inform him of A.J.F.’s statement before trial.
The district court declined to reach the merits of either claim because Reese either knew or
should have known about the claims at the time he pleaded guilty and filed his previous
postconviction petitions. But there is nothing in the record to suggest that Reese knew or
should have known about A.J.F.’s affidavit prior to filing his third postconviction petition.
On the contrary, the witness’s affidavit alleges that Reese did not discover any information
from the witness until August of 2020, eight months after we affirmed the district court’s
denial of Reese’s second postconviction petition. Because district courts must accept the
allegations alleged in a postconviction petition as true and construe them in the light most
favorable to the petitioner, Brown v. State, 895 N.W.2d 612, 618 (Minn. 2017), and there
is nothing in the record to contradict Reese’s allegation that A.J.T.’s affidavit was newly
discovered evidence, Reese’s arguments concerning this affidavit were not procedurally
barred.
Despite this, the postconviction court did not err when it failed to reach the
arguments relating to A.J.F.’s affidavit on the merits because they are time barred. The
postconviction statute of limitation provides that “[n]o petition for postconviction relief
may be filed more than 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) (2020). If a defendant’s conviction became
final before August 1, 2005, the date which the Legislature codified the postconviction
statute, the defendant must file his postconviction petition within two years of July 31,
2005. See Brown v. State, 863 N.W.2d 781, 786 (Minn. 2015). But a postconviction court
may nevertheless hear a petition for relief notwithstanding the time limitation if the
defendant establishes newly discovered evidence that could not have been discovered prior
to the filing of the postconviction petition or is in the interests of justice. Minn. Stat.
§ 590.01, subd. 4(b)(2), (5) (2020).
The record reflects that Reese filed his most recent postconviction petition in
January of 2021, over ten years after the statute of limitations expired in this case on July
31, 2007. His petition is therefore time barred unless either exception is applicable.
i. Newly Discovered Evidence
To satisfy the newly discovered evidence exception, a petitioner must allege: (1) the
existence of newly discovered evidence; (2) that could not have been ascertained by the
exercise of due diligence within the two -year time period for filing a postconviction
petition; (3) is not cumulative to evidence presented at trial; (4) is not for impeachment
purposes; and (5) establishes the petitioner’s innocence by clear and convincing evidence.
Scott v. State, 788 N.W.2d 497, 502 (Minn. 2010); see Minn. Stat. § 590.01, subd. 4(b)(2).
All five criteria must be satisfied to obtain relief. Scott, 788 N.W.2d at 502.
To prove a claim by clear and convincing evidence requires a party’s evidence to
“on its face” show the petitioner’s innocence by clear and convincing evidence. Miles v.
State, 800 N.W.2d 778, 783 (Minn. 2011). The innocence prong in subdivision 4(b)(2)
requires “more than an uncertainty” about the petitioner’s guilt. Riley v. State, 819 N.W.2d
162, 170 (Minn. 2012). Instead, establishing “actual innocence” requires the petitioner to
prove it is “more likely than not that no reasonable jury would convic t.” Id. A
postconviction court reviewing the matter must accept the evidence submitted by the
petitioner as true before summarily denying the petition. Henderson v. State, 906 N.W.2d
501, 507 (Minn. 2018).
Reese argues that A.J.F.’s affidavit establishes that Reese did not shoot R.J.T. and
that police committed misconduct when they became aware of A.J.F.’s statement and failed
to inform him. We are satisfied that neither of these claims establish Reese’s innocence by
clear and convincing evidence. At his plea hearing, Reese repeatedly admitted to shooting
R.J.T. He testified that he was at a party on the night of the shooting and got into an
argument with R.J.T., and that the argument escalated to a point where he shot R.J.T. in
the leg and ankle. He also agreed that his conduct constituted second-degree assault. The
allegations A.J.F. made in his affidavit do not negate this testimony. A.J.F.’s affidavit does
not indicate that A.J.F. saw who actually shot R.J.T. Rather, the affidavit only indicat es
that he saw four men, one of them speaking Spanish, running away after R.J.T.’s shooting,
and that R.J.T. himself told police that a Mexican man he did not know shot him. It does
not on its face establish Reese’s innocence by clear and convincing evide nce or call into
question Reese’s testimony at the plea hearing. Reese concedes this in his appellate brief,
noting that A.J.F.’s statements “alone probably could not have” proven his innocence.
Therefore, the affidavit, as newly discovered evidence, is insufficient to warrant a
withdrawal of Reese’s guilty plea.
ii. Interests of Justice
A postconviction court may also hear a time barred postconviction petition if “the
petitioner establishes to the satisfaction of the court that the petition is not frivolous and is
in the interests of justice.” Minn. Stat. § 590.01, subd. 4(b)(5). The exception is triggered
by an injustice that caused the petitioner to miss the primary postconviction deadline, not
the substantive merits of the petition. Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012).
“A petition is frivolous if it is perfectly apparent, without argument, that the petition is
without merit.” Scott, 788 N.W.2d at 503 . We have reserved the interests -of-justice
exception “for exceptional cases.” Riley, 819 N.W.2d at 170.
In order to satisfy the interests of justice exception, a court should consider (1)
whether the defendant’s claim has substantive merit and whether he did not “deliberately
and inexcusably fail[] to raise the issue on direct appeal”; (2) “the degree to which the party
alleging error is at fault for that error, the degree of fault assigned to the party defending
the alleged error, and whether some fundamental unfairness to the defendant needs to be
addressed”; and (3) whether it is necessary to address the error to protect the integrity of
judicial proceedings. Gassler v. State, 787 N.W.2d 575, 586–87 (Minn. 2010).
We are satisfied that Reese cannot meet this high bar. As explained above, the
claims related to A.J.F.’s affidavit that Reese raised in his third postconviction petition do
not have any substantive merit because they do not negate Reese’s own testimony at his
plea hearing that he shot R.J.T. Further, there is nothing in the record to suggest that police
knew of A.J.F.’s statement and refused to disclose it to Reese. And Reese has not shown
that some type of injustice occurred to prevent him from previously raising the argument.
He therefore failed to show that the interests of justice necessitate the withdrawal of hi s
guilty plea.
Because Reese cannot satisfy either the newly discovered evidence exception or the
interests of justice exception to the postconviction statute of limitations, we conclude that
the claims relating to A.J.F.’s affidavit are time barred and affirm the district court’s denial
of his petition for postconviction relief.
Affirmed.