Because No Exceptions to Two Year Limitations Applies, Summary Denial of Post Conviction Petition No Abuse of Discretion

Berkovitz v. State, Minn.S.Ct., 2/13/13.  Ms. Berkovitz’s convictions for first degree murder and attempted first degree murder became final back on February 1, 2006, so she had until February 1, 2008 to file her post conviction petition.  She filed that petition, however, on February 15, 2012.  To stay in court her petition had to satisfy one of the five exceptions in the statute.  Ms. Berkovitz alleged that the trial judge was biased against her, that her trial counsel was ineffective, and that one of her public defenders had a conflict of interest.  She argued that these claims fit within either of two exceptions:  newly discovered evidence and interests of justice.

Justice Stras, for a unanimous court, said that her claims met neither of those exceptions.  Part of the newly discovered evidence exception requires a petitioner to establish that the newly discovered evidence makes her innocent of the crime.  Well, even if you accept all three of her legal claims, none of them proves that she didn’t kill one person and attempt to kill another.  But, on the first two legal claims the court is unwilling to conclude that there is newly discovered evidence in them; and on the third there’s no suggestion of innocence.

For the interests of justice exception, the petition can’t be frivolous, and reviewing it is in the interests of justice.  A frivolous claim is one in which “it is perfectly apparent, without argument, that the claims in the petition lack an objective, good-faith basis in law or fact.”  Wallace v. State, 820 N.W.2d 843 (Minn. 2012).  Now, in Wallace, Justice Stras said that each of a petition’s claims must pass the not frivolous test. 

Under the plain language of subdivision 4(b)(5), therefore, a postconviction court must consider the whole petition in assessing whether a petitioner has satisfied the interests-of-justice exception, not just whether some of the individual claims in the petition are frivolous or fail to satisfy the interests-of-justice requirement

Here, he says:

a petition for postconviction relief is frivolous only if every claim in the petition lacks an objective, good-faith basis in law or fact.

This spin on Wallace seems to say the opposite, that if any of the claims pass the non frivolous test then the petition survives. 

In any event, all of Ms. Berkovitz’s claims are deemed frivolous so the summary dismissal of the petition is affirmed.