1 STATE OF MINNESOTA

IN SUPREME COURT
A14

- 1402 Ramsey County Anderson , J.
Harry Jerome Evans ,

Appellant ,
vs. Filed: A ugust 5, 2015 Office of Appellate Courts State of Minnesota ,

Respondent

.

________________________ Harry Jerome Evans, Bayport, Minnesota, pro se. Lori Swanson, Attorney General, Saint Paul, Minnesota; and John J. Choi , Ramsey County Attorney, Peter R. Marker , Assistant County Attorney, Saint Paul , Minnesota, for respondent

.

________________________ S Y L L A B U S The district court did not err when it concluded that a ppellant’ s claims we re untimely

. Affirmed

. Considered and decided by the court without oral argument.2 O P I N I O N
ANDERSON , Justice. Appellant Harry Jerome Evans was convicted of first

- degree murder of a peace officer for the 2005 murder of St. Paul police sergeant Gerald Vick. We affirmed Evans’s conviction on direct appeal, State v. Evans ( Evans I ), 756 N.W.2d 854 (Minn. 2008), and the district court’s subsequent denial of his first postconviction petition, Evans
v. State ( Evans I

I ), 788 N.W.2d 38 (Minn. 2010). In May 2014, Evans filed a motion for relief from judgment, see Minn. R. Civ. P. 60.02, which alleged a number of claims including ineffective assistance of trial and appellate counsel. The district court treated
Evan s ’s motion as a second postconviction petition. C oncluding in part that all of Evans’s claims are untimely under the postconv iction statute, Minn. Stat. ch. 590 (2014) , the district court denied Evan s ’s request for relief. Because we also conclude that Evans’s claims are untimely , w e affirm.
I. The facts surrounding the murder and trial are set forth in detail in Evans I , 756 N.W.2d at 859

- 67, and are restated here only as relevant to this appeal. During Evans’s trial, the district court received a telephone call stating that one of the jurors was racially biased. Id. at 862. The district court denied Evans’s motions t o investigate the complaint. Id. at 862

- 63. The jury subsequently found Evans guilty of first

- degree murder of a peace officer, Minn. Stat. § 609.185(a)(4) (2014) , and the district court sentenced him to life in prison without the possibility of release. Evans I , 756 N.W.2d at
862.3

On direct appeal, w e concluded that the record lacked adequate information to evaluate Evans’s allegation of juror bias, and we remanded with instructions for further investigation. Id. at 863

- 64. The district court on remand grant ed Evans’s motion for a Schwartz hearing to determine whether juror misconduct had occurred. Id. at 864; s ee Schwartz v. Minneapolis Suburban Bus Co. , 258 Minn. 325 , 104 N.W.2d 301 (1960)

. The court issued subpoenas to witnesses, and counsel for Evans re quested that the district court add the following language to the cover letter s to the subpoenas : You are directed not to discuss with anyone the fact that you have received this subpoena or your participation in this matter. However, you may speak with t he attorneys working on this case or with persons who are working with the attorneys if you are contacted by them and if you wish to speak with them. Evans I , 756 N.W.2d at 864

- 65. The State agreed to the proposed language and t he court included the langu age in the cover letter s . Id. at 86 4

- 6 5. On the day of the Schwartz hearing, Evans learned that the State had previously interviewed the allegedly biased juror. Id. He moved for an order finding prejudice based on the State ’ s contact with the juror or, alternatively, to strike the juror ’ s Schwartz hearing testimony and prehearing statements made to the State. Id. at 866. The district court denied the motion

. Id. The court concluded that Evans failed to prove by a preponderance of the evidence that th e juror had made racially biased statement s or that a racially biased individual had sat on the jury. Id. at 866

- 67.
We affirmed Evans’s conviction. Id. at 881. With respect to t he juror

- bias claim, Evans’s allegation of prejudice sufficient to tai nt the Schwartz hearing was precluded under the invited

- error doctrine because counsel for Evans agreed to the subpoena4

language permitting the parties to interview witnesses before the Schwartz hearing. Id. at 867. We also concluded that the district court’s findings of fact at the Schwartz hearing were not clearly erroneous, and Evans was not denied a fair trial or an impartial jury. Id.
at 870

- 71. Evans petitioned for postconviction relief, and we affirmed the postconviction court’s denial of the petition

. Evans II , 788 N.W.2d at 41, 50. We concluded that Evans’s claim of ineffective assistance of trial counsel was procedurally barred under
State v. Knaffla , 309 Minn. 246, 252, 243 N.W.2d 7 37, 741 (1976) , because the claim was known to h im but not raised at the time of his direct appeal. Evans II , 788 N.W.2d at
43

- 44. Evans also claimed ineffective assistance of appellate counsel for failure to “ (1) file a motion seeking independent counse l for Evans to handle the Schwartz hearing; and (2) request an evidentiary hearing on Evans ’ s ineffective assistance of trial counsel claims. ” Id. at 45. We found no merit to Evans’s allegations, concluding that (1) there was no reasonable possibility that independent counsel would have secured a different result at the Schwartz hearing, and (2) Evans was unable to demonstrate that his trial counsel was ineffective. Id. at 45

- 47. 1

1 Evans also petitioned for a federal writ of habeas corpus. The federal magistrate judge recommended denying Evans’s petition for substantially the same reasons as in Evans I and II

. Evans v. King , No. CIV. 1 0

- 4045 SRN/SER, 2012 WL 4128682 (D. Minn. July 30, 2012) , report and recommendation adopted , 2012 WL 4128509 (D. Minn. Sept. 19, 2012) . In 2014, Evans brought a motion in federal district court for relief from judgment under Fed. R. Civ. P. 60(b); the federal district court construed the majority of Evans’s motion as a successive habeas petition and denied relief for failure to obtain (Footnote continued on next page.)5

In May 2014, Evans filed a motion fo r relief from judgment, see Minn. R. Civ. P. 60.02, which alleged a number of claims . More specifically, he assert ed ineffective assistance of trial counsel for failure to “keep Evans informed of all developments in the case”; ineffective assistance of ap pellate counsel for stipulating to the subpoena language without Evans’s consent and for failing to pursue a claim of ineffective assistance of trial counsel; and denial of a fair trial and prosecutorial misconduct stemming from the State’s interview of th e allegedly biased juror prior to the Schwartz hearing. The district court construed the motion as a second postconviction petition, which it summarily denied because , among other reasons, it was untimely under Minn. Stat. § 590.01, subd. 4

. I I

. The question presented by this case is whether the district court erred by construing Evans’s motion as a second postconviction petition. We need not decide this issue, however, b ecause we conclude that Evan s ’s claims would have been untim ely under both Minn. R. Civ. P. 60.02 and Minn. Stat. ch. 590

. 2

(Footnote continued from previous page.) authorization from the Eighth Circuit to file a successive habeas petition

. Evans v. King ( Evans III

) , No. CIV. 10

- 4045 ( SRN/SER ) , 2014 WL 5325375 (D. Minn. Oct. 20, 2014)

.
2 The postconviction statute provides that it is the exclusive remedy for challengin g the validity of a conviction “unless it is inadequate or ineffective

. ” Minn. Stat. § 590.01, subd. 2

. Even so, it is possible that s ubdivision 2 does not foreclose all of Evans’s claims. The federal district court, in analyzing Evans’s Fed. R. Civ . P. 60(b) motion before that court, and using the relevant federal rules and statu tes, differentiated between the claims that challenged the validity of his conviction and those that did not. Evans III , 2014 WL 5325375, at *4

- 6 (citing Boyd v. United States , 304 F.3d 813, 814 (8th Cir. 2002)). Rather than individually analyzing each o f Evans’s claims, we can conclude, on (Footnote continued on next page.)6

Rule 60.02 states that a motion for relief from judgment “shall be made within a reasonable time,” and in some circumstances , within 1 year. Evans’s motion was filed on May 27, 2014, over 5 years after we affirmed h is conviction on direct appeal, see Evans I , 756 N.W.2d 854, and almost 4 years after we affirmed the denial of h is first postconviction petition , s ee Evans II , 788 N.W.2d 38. Such a long delay between our decision and Evans’s motion for relief from that decision is not “ reasonable. ” See Minn. R. Civ. P. 60.02. Consequently, even if the district court had treated Evan s ’s request for
relief as a Rule

- 60.02 motion, his request would have been untimely. The postconvi ction statute states that “[n] o petition for postconviction relief may be filed more than two years after

. . . an appellate court ’ s disposition of petitioner ’ s direct appeal

. ” Minn. Stat. § 590.01, subd. 4(a)(2). None of Evans’s claims fall within

an ex ception to the 2

- year time limit

. See id. , subd. 4(b). 3 Consequently, Evans’s claims

are also untimely under the postconviction statute.

(Footnote continued from previous page.) this record, that all of them are untimely , under either R ule 60.02 or the postconviction statute.

3 To the extent that Evans asserts any claims not decided in Evans I and II , he does not allege that these claims inv olve “newly discovered evidence . . . that could not have been ascertained

. . . within the two

- year time period for filing a postconviction petition .” Minn. Stat. § 590.01, subd. 4(b)(2). Evans also cites two recent United States Supreme Court d ecisions tha t he argues are retroactively applicable to his case and revive his ineffective

- assistance

- of

- trial

- counsel claim. S ee Trevino v. Thaler , ___ U.S. ___, 133 S. Ct. 1911 (2013); Martinez v. Ryan , ___ U.S. ___, 132 S. Ct. 1309 (2012) ; see also Minn. Stat. § 590.01, subd. 4(b)(3)

. T hese cases pertain to the doctrine of procedural default in federal habeas cases and are inapplicable to state

- court proceedings.7

Because the district court did not err when it concluded that Evans ’s claims were untimely , we affirm

. Affirmed.