Jeremy Bruce Cournoyer, 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This opinion is nonprecedential except as provided by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
A22-0810

Jeremy Bruce Cournoyer, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed February 27, 2023
Affirmed
Reyes, Judge

Beltrami County District Court
File No. 04-CR-13-1377

Zachary A. Longsdorf, Longsdorf Law Firm, P.L.C., Inver Grove Heights, Minnesota (for
appellant)

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

David L. Hanson, Beltrami County Attorney, David P. Frank, Assistant County Attorney,
Bemidji, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Reyes, Judge; and Kirk, Judge.
*
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from an order denying postconviction relief, appellant argues that the
postconviction court (1) abused its discretion by denying his petition for postconviction

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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relief under the statutory time -bar exceptions found in Minn. Stat § 590.01, subd. 4;
(2) abused its discretion by denying his request for an evidentiary hearing; and (3) erred by
denying his ineffective-assistance-of-counsel claims. We affirm.
FACTS
This is appellant Jeremy Bruce Cournoyer’s third petition for postconviction relief.1
In 2013, respondent State of Minnesota charged appellant with first-degree criminal sexual
conduct in violation of Minn. Stat. § 609.342, subd. 1(a) (2012) , for sexually assaulting
A.D.2 Appellant waived his right to a jury trial, and a court trial followed.
During trial, A.D., among other pertinent witnesses, testified on behalf of the state.
For the defense, appellant, A.D.’s mother , and appellant’s mother testified. Appellant
denied sexually assaulting A.D. He testified that many people were present in the home
that day including his brother Douglas Calhoff . A.D.’s mother and appellant’s mother
testified that they did not see appellant alone with A.D. that day. They also testified that
there were at least s ix people present in the home , including Calhoff. The district court

1 Appellant first filed a dire ct appeal on January 12, 2015, and we affirmed. See State v.
Cournoyer, No. A15-0067, 2016 WL 102486, at *1 (Minn. App. 2016), rev. denied (Minn.
Mar. 29, 2016). Appellant filed his first petition for postconviction relief which the
postconviction court denied and this court affirmed. See Cournoyer v. State , No. A16-
1682 (Minn. App. Aug. 7, 2017) (order op.), rev. denied (Minn. Oct. 25, 2017).
Subsequently, appellant filed his second petition for postconviction relief which the
postconviction court denied again. See Cournoyer v. State , No. 04- CR-13-1377 (Minn.
Dist. Ct. May 15, 2018). Appellant filed his third petition for postconviction relief and on
June 10, 2022, he filed the current appeal before our court from the order denying relief .
2 These facts are derived from testimony received at the court trial that took place from
June 3, 2014, to June 4, 2014.

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found appellant guilty of first -degree criminal sexual conduct and sentenced him to serve
300 months in prison.
In appellant’s third petition for postconviction relief , he now argues that he
discovered new evidence by learning that his brother Calhoff was present in the home after
school on the date of the offense . To support appellant’s claim, Calhoff submitted an
affidavit to the postconviction court. In his affidavit, Calhoff stated that, on the day of the
offense, he rode the bus home with A.D. and when they arrived home, appellant was not
there. Eventually, appellant arrived home, and Calhoff claimed he never saw A.D. alone
with appellant. He also claimed to have personal knowledge that appellant did not sexually
assault A.D. because his room was close to the bathroom where the assault took place, and
he never heard anything. Finally, Calhoff averred that seven people other than himself
were also home when the assault happened. The postconviction court determined that this
did not constitute new evidence and denied his postconviction petition. This appeal
follows.
DECISION
I. The postconviction court did not abuse its discretion by determining that
appellant’s claims were statutorily time-barred and did not satisfy any of the
exceptions under Minn. Stat § 590.01, subd. 4.

Appellant argues that the postconviction court abused its discretion by denying his
postconviction petition as untimely because it did not meet the statutory time -bar
exceptions for newly discovered evidence or the interests of justice. We are not persuaded.
We review a postconviction court’s denial of a petition for postconviction relief for
an abuse of discretion. Campbell v. State, 916 N.W.2d 502, 506 (Minn. 2018). This court

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reviews the postconviction court’s factual findings for clear error and its legal conclusion
de novo to det ermine whether it abused its discretion. Eason v. State, 950 N.W.2d 258,
263-64 (Minn. 2020).
A person convicted of a crime may bring a postconviction petition seeking a new
trial based on a claim that the conviction violated their constitutional rights or their rights
under federal or state law. Minn. Stat. § 590.01, subd. 1 (2022). Generally, no petition for
postconviction relief may be filed more than two years after the entry of judgment of
conviction or an appellate court’s disposition of petitioner’s direct appeal. Minn. Stat
§ 590.01, subd. 4(a). But a postconviction court may hear a peti tion for postconviction
relief if the petitioner alleges the existence of newly discovered evidence or it is in the
interests of justice. Minn. Stat. § 590.01, subd. 4(b)(2) (2022); Minn. Stat. § 590.01, subd.
4(b)(5) (2022).
Here, the district court convicted appellant on June 7, 2014. On direct appeal, this
court affirmed the district court on January 11, 2016, and the Minnesota Supreme Court
denied further review . Appellant filed this third postconviction petition more than two
years after his co nviction became final. Appellant’s postconviction petition is therefore
statutorily time-barred. The only issue is whether appellant can meet an exception to the
two-year statutory bar. Caldwell v. State, 976 N.W.2d 131, 137 (Minn. 2022) .
A. Appellant’s evidence is not n ewly discovered.
Appellant contends that the evidence he presented to the postconviction court
satisfied the newly discovered evidence exception Minn. Stat. §590.01, subd. 4(b)(2). To
satisfy this exception, appellant must show that the evidence: (1) is newly discovered;

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(2) could not have been ascertained by the exercise of due diligence by the petitioner or
petitioners’ attorney within the two-year time-bar for petitioning; (3) is not cumulative of
evidence presented at trial; (4) is not for impeachment purposes; and (5) establishes by
clear and convincing evidence that petitioner is innocent of the offenses for which he was
convicted. Caldwell, 976 N.W.2d at 138. All five requirements must be met for this
exception to apply. Riley v. State, 819 N.W.2d 162, 168 (Minn. 2012) .
Calhoff’s affidavit is not new ly discovered evidence. During trial, A.D. testified
that she rode the bus with Calhoff. Appellant, A.D.’s mother, and appellant’s mother all
testified that there were several people present at the house on the day of the offense ,
including Calhoff. A.D.’s mother and appellant’s mother also testified that they never saw
appellant alone with A.D. Calhoff’s affidavit also claimed that the sexual assault could not
have occurred because Calhoff never heard anything, and his room was close to the
bathroom where the assault took place. But “evidence is not newly discovered, . . . when
the source of the information was present with the defendant at the scene of the crime.
Accordingly, later statements of a witness about events that occurred when the
postconviction petitioner was present are not unknown.” Onyelobi v. State , 966 N.W.2d
235, 238 (Minn. 2021) (citations omitted). It is undisputed that appellant knew that Calhoff
was in his room at that time of the assault. Therefore, the assertion that Calhoff could have
heard the sexual assault take place is not considered newly discovered evidence.
The Minnesota Supreme Court recently addressed a similar issue in El -Shabazz v.
State, ___ N.W.2d ___, ___, 2023 WL 379576, at *1 (Minn. Jan. 25, 2023) . In that case,
appellant filed his eight h postconviction petition arguing that an affidavit from his co-

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defendant stating that he acted alone in shooting the police officer and that he did not plan
the shooting with anyone else, including appellant, satisfied the newly discovered
exception. Id. at *5. The supreme court held that “because [appellant] was present during
the relevant events described in the affidavit, he had personal knowledge at the time of his
trial whether he did, or did not, participate in a plan to shoot a police officer.” Id. As a
result, the court concluded that the statements in the affidavit were not newly discovered ,
and the district court did not abuse its discretion. Id.
Similarly, here, Calhoff alleges in his affidavit that the sexual assault did not take
place because he never heard anything, and his room is close to the bathroom. But because
appellant had personal knowledge at the time of the trial of Calhoff’s presence in the home,
the statements in the affidavit are not newly discovered evidence. The postconviction court
therefore did not abuse its discretion when it determined that “it is not new information
that people were present in the house at the time of the sexual assault [because] evidence
came out during the trial that several people, . . . said they were in the residence. ”3
B. Appellant cannot meet the i nterests-of-justice exception.
Appellant asserts that the interests -of-justice exception applies here because his
claims have merit that negate his conviction. Appellant’s assertion is misguided.

3 Additionally, appellant cannot meet the other requirements of this exception. For
example, appellant acknowledges several times in his brief that Calhoff’s affidavit is being
used to impeach A.D.’s credibility by stating that the assault did not occur bec ause he did
not see or hear anything coming from the bathroom. Moreover, as the postconviction court
noted, appellant could have obtained the testimony of his brother , Calhoff, knowing that
Calhoff had been present in the house when the sexual assault occ urred.

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“The interests -of-justice exception requires the petitioner to establish ‘to the
satisfaction of the court that the petition is not frivolous and is in the best interests of
justice.” Caldwell, 976 N.W.2d at 141 (quoting Minn. Stat. § 590.01, subd. 4(b)(5) ). “A
postconviction petition is frivolous if it is ‘perfectly apparent, without argument,’ that the
petition lacks merit.” Id. (quoting Wallace v. State, 820 N.W.2d 843, 850 (Minn. 2012)) .
Importantly, this exception is “triggered by an injustice that caused the petitioner to miss
the primary deadline in subdivision 4(a) and not the substantive claims in the petition.” Id.
(quotation omitted). As a result, the Minnesota Supreme Court has “long held that the
interests of justice are implicated only in exceptional and extraordinary situations.”
Carlton v. State, 816 N.W.2d 590, 607 (Minn. 2012); Caldwell 976 N.W.2d at 141. Here,
appellant has not alleged an injustice that prevented him from filing a postconviction
petition within two years. Therefore, the postconviction court did not abuse its discretion
by determining that appellant failed to satisfy this exception.
II. The postconviction court properly exercised its discretion when it denied
appellant’s request for an evidentiary hearing.

Appellant argues that he should have been granted an evidentiary hearing to offer
testimony to corroborate his claims. We disagree.
We review a petitioner’s request for an evidentiary hearing on a postconviction
petition for an abuse of discretion. Campbell, 916 N.W.2d at 506. “The legal standard
required to obtain an evidentiary hearing is lower than that required for a new trial.”
Rhodes v. State, 875 N.W.2d 779, 786 (Minn. 2016) (quotations omitted) . Nevertheless,

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“[a] postconviction hearing is not required when the petitioner alleges facts that, if true, are
legally insufficient to entitle him to the requested relief.” Id.
The postconviction court determined that Calhoff’s affidavit failed to meet any
requirements under any exception to the statutory time bar . Minn. Stat. § 590.01, subd.
4(b)(2). As discussed above, we discern no abuse of discretion by the postconviction court
in its findings and determination. It therefore did not abuse its discretion by denying
appellant’s request for an evidentiary hearing.
III. Appellant’s claims of ineffective assistance of trial and appellate counsel are
procedurally barred and lack merit.

Appellant argues that proper investigations by his trial counsel and appellate counsel
would have led to obtaining Calhoff’s affidavit. We are not convinced.
Because a claim of ineffective assistance of counsel involves a mixed question of
law and fact, our review is de novo. Hawes v. State, 826 N .W.2d 775, 782 (Minn. 2013).
The Minnesota Supreme Court has held that when a “direct appeal has once been
taken, all matters raised therein, or all claims known but not raised will not be considered
upon a subsequent petition for postconviction relief.” State v. Knaffla, 243 N.W.2d 737,
738 (1976) . Thus, “w hen a claim of ineffective assistance of trial counsel can be
determined on the basis of the trial record, the claim must be brought on direct appeal or it
is Knaffla-barred.” Andersen v. State, 830 N.W.2d 1, 10 (Minn. 2013) . We examine the
claim under the two -prong test set forth in Strickland v. Washington, 466 U.S. 668, 687
(1984). State v. Ellis-Strong, 899 N.W.2d 531, 535 (Minn. App. 2017) . To prevail on an
ineffective-assistance-of-counsel claim, “appellant must prove (1) that his counsel’s

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representation fell below an objective standard of reasonableness; and (2) there is
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been diff erent.” Nissalke v. State , 861 N.W.2d 88, 94 (Minn.
2015).
“Ineffective assistance of appellate counsel is properly raised in a first
postconviction petition, because the petitioner could not have known of such a claim at the
time of direct appeal. Applies to both a claim for ineffective assistance of trial counsel, of
appellate counsel, a petitioner must prove both prongs of the Strickland test.” Zornes v.
State, 880 N.W.2d 363, 370-71 (Minn. 2016). If an ineffective-assistance-of-counsel claim
fails to satisfy one of the Strickland prongs, we need not consider the other prong.
Andersen, 830 N.W.2d at 10.
Appellant has raised his ineffective-assistance-of-trial-counsel claim twice before
this court, in 2016 and in 2017. In response to appellant’s 2016 direct appeal, this court
concluded that “the record does not reflect that, but for counsel’s errors, the results of the
proceedings would have been different.” Cournoyer, 2016 WL 102486, at *8. Following
appellant’s first postconviction petition denial , this court stated in an order opinion that ,
“we rejected the claim concerning trial counsel in [appellant’s] direct appeal. Accordingly,
this issue is Knaffla-barred.” Cournoyer v. State , No. A16- 1682 (Minn. App. Aug. 7,
2017). The same applies here. Because appellant raised his claim of ineffective assistance
of trial counsel in his 2016 appeal, he is Knaffla-barred from raising th at issue in this
appeal. Knaffla, 243 N.W.2d at 738.

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Next, appellant claims he received ineffective assistance of appellate counsel.
“When an ineffective assistance of appellate counsel claim is based on appellate counsel ’s
failure to raise an ineffective assistance of trial counsel claim, the [petitioner] must first
show that trial counsel w as ineffective to prevail on the appellate counsel claim.” Zornes,
880 N.W.2d at 371; See also Wright v. State, 765 N.W.2d 85, 91 (Minn. 2009). Because
this court rejected appellant’s claim of ineffective assistance of appellate counsel in his
2017 appeal and appellant’s ineffective trial counsel claim is Knaffla-barred, we need not
to consider the merits of this claim.
Affirmed.