2012-M-213           De-Aunteze Lavion Bobo, Appellant, vs. State of Minnesota, Respondent.

MAJORITY:  Appellant De-Aunteze Lavion Bobo was convicted of first-degree murder while

committing a drive-by shooting, Minn. Stat. § 609.185(a)(3) (2010), and drive-by shooting, Minn. Stat. § 609.66, subd. 1e (2010), for his role in a shooting that killed James Roberts and injured R.N.  We affirmed Bobo’s conviction on direct appeal. 

In this case, Bobo appeals the summary denial of his second petition for post-conviction relief, which alleges a claim of ineffective assistance of appellate counsel, and his third petition for post-conviction relief, which alleges a claim of newly discovered evidence.  We affirm the post-conviction court’s summary denial of the second post-conviction petition because the record conclusively shows appellate counsel was not ineffective. 

But we reverse the court’s summary denial of the third post-conviction petition and remand for an evidentiary hearing because the record fails to conclusively show that Bobo is not entitled to relief based on his claim of newly discovered evidence. 

HELD:  First, the post-conviction court did not err when it failed to hold an evidentiary hearing on appellant’s "ineffective-assistance-of-appellate-counsel" claim because appellant failed to allege facts that, if proven by a fair preponderance of the evidence, would satisfy the first prong of the Strickland test.  

Second, the post-conviction court erred when it failed to hold an evidentiary hearing on appellant’s "newly-discovered evidence" claim because the record does not conclusively establish that appellant failed to allege facts that, if proven by a fair preponderance of the evidence, could satisfy the Rainer test.

Affirmed in part, reversed in part, and remanded.

CONCUR & DISSENT:  Justices Stras and Dietzen opined: “I join Part I of the court’s opinion, affirming the post-conviction court’s summary denial of Bobo’s second petition for post-conviction relief. 

However, I respectfully dissent from the court’s decision in Part II to remand Bobo’s newly discovered evidence claim in his third post-conviction petition for an evidentiary hearing. Instead, I would conclude for two reasons that the petition, files, and records of the proceeding conclusively show that Bobo is entitled to no relief.  First, Bobo’s newly discovered evidence is inadmissible hearsay.  Second, the post-conviction court did not clearly err when it found that Bobo’s newly discovered evidence was “profoundly doubtful”—a finding that is supported by the record and that the court fails to address meaningfully.  For these reasons, I would affirm the post-conviction court’s decision to summarily deny Bobo’s third petition without an evidentiary hearing.

Gildea (Page, Paul Anderson, Barry Anderson)

            Concur& Dissent:  Stras and Dietzen

[MURDER]