Hennepin County District Court File No. 27-CR-08-38132
Alberto Rivera, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and Michael O. Freeman, Hennepin County Attorney, Lee W. Barry, III, Assistant County Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Peterson, Presiding Judge; Ross, Judge; and Toussaint, Judge.
Toussaint, Judge [*]
In this pro se appeal, appellant Alberto Rivera challenges the district court's denial of his petition for postconviction relief as untimely and Knaffla-barred. Because the district court properly denied the petition, we affirm.
We review the district court's denial of a postconviction petition for abuse of discretion and will not reverse the decision unless the district court "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." Reed v. State, 793 N.W.2d 725, 732 (Minn. 2010).
The first basis on which the postconviction court denied Rivera's petition was that it was untimely. A criminal defendant may not file a petition for postconviction relief more than two years "after the entry of judgment of conviction or sentence if no direct appeal is filed." Minn. Stat. § 590.01, subd. 4(a)(1) (2012). When a defendant files a direct appeal, a petition for postconviction relief may not be filed more than two years after the disposition of the direct appeal. Id., subd. 4(a)(2) (2012).
Rivera filed a direct appeal from his sentence, and this court issued its decision on April 27, 2010, affirming his first-degree criminal-sexual-conduct conviction. State v. Rivera, No. A09-1023, 2010 WL 1657400 (Minn.App. Apr. 27, 2010), review denied (Minn. June 29, 2010). Rivera's conviction became final on June 29, 2010, when the supreme court denied his petition for further review. Id. Rivera, however, did not file his post-conviction petition until October 10, 2012, nearly three and a half months after the time limit had expired. Therefore, his post-conviction petition is untimely under Minn. Stat. § 590.01, subd. 4(a)(2).
An otherwise untimely petition for postconviction relief may be heard by the court if an exception set out in section 590.01, subdivision 4(b), applies. See id., subd. 4(b) (2012). One such exception is that the petition is based on newly discovered evidence that "could not have been ascertained by the exercise of due diligence by the petitioner or petitioner's attorney within the two-year time period for filing a postconviction petition . . . and establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted." Id., subd. 4(b)(2) (2012); see also Tscheu v. State, N.W.2d (Minn. Apr. 24, 2013) (stating that newly discovered evidence must be "material, not merely impeaching, cumulative, or doubtful") (quotation omitted).
Rivera claims his petition is not barred because it is based on newly discovered statements made by I.S., sister to the two victims, to the police during the investigation. I.S. told the police that Rivera never abused her and that she never witnessed him abusing her siblings. Rivera admits that his trial counsel was aware of I.S.'s statements to the police, but claims that his trial counsel deliberately withheld them to convince Rivera to plead guilty. Because Rivera's counsel was aware of the statements, they are not newly ...