SYLLABUS 1. Minnesota Statutes § 590.01, subd. 4(a) (2012), bars a post-conviction petition filed more than 2 years after an appellate court's disposition of the petitioner's direct appeal unless the petition satisfies one of the exceptions in Minn. Stat. § 590.01, subd. 4(b) (2012). 1 2. Appellant's petition does not satisfy the newly discovered evidence exception in Minn. Stat. § 590.01, subd. 4(b)(2), and is therefore time barred. Affirmed.
The opinion of the court was delivered by: Gildea, C.J.
Office of Appellate Courts
Considered and decided by the court without oral argument.
Appellant Brian Alexander Clifton was convicted in September 2003 of premeditated first-degree murder for the shooting death of Steven Nix. We affirmed Clifton's conviction on direct appeal. State v. Clifton, 701 N.W.2d 793, 801 (Minn. 2005). In this case, Clifton appeals the denial of his petition for post-conviction relief. Because we conclude that the post-conviction court properly denied Clifton's petition, we affirm.
The facts surrounding Nix's murder are set forth in detail in our opinion affirming Clifton's conviction on direct appeal. Id. at 796-97. We limit our discussion to facts directly relevant to this appeal. In February 2002, Nix was charged with the attempted murder of Clifton's brother but was acquitted after a jury trial. After the jury returned its verdict, Clifton became angry and made comments to the effect of "this could be taken care of some other way," stated he was "going to kill" or "get" Nix, and made threatening gestures toward Nix.
On September 23, 2002, Nix and his friend D.N. were parked in D.N.'s 1987 GMC Jimmy on a residential street. Nix was in the front passenger seat and D.N. was in the driver's seat. D.N.'s friend, C.C., was in the cargo area working on a mechanical problem with the rear window.
In addition to Nix, D.N., and C.C., Clifton and his cousin, Claudell Walker, were also in the area. As Walker approached Clifton, Walker saw Clifton walk up to the GMC Jimmy and shoot Nix in the head. When Clifton tried to fire another shot, the gun jammed. D.N. and C.C. jumped out of the vehicle and, upon determining he had not been hit, D.N. got back into the vehicle. Finding Nix unresponsive and bleeding from the head, D.N. immediately drove him to North Memorial Hospital. Nix was pronounced dead at 8:00 p.m. An autopsy showed that the bullet, fired from a gun at close range, had lacerated Nix's brain and fractured his skull.
When police spoke with D.N. at the hospital and the police station, D.N. identified Clifton based on a photo display, stating "[t]hat's him, that's your shooter." D.N. also told the police that shortly before the shooting another man had walked by the vehicle, whom D.N. identified as Walker. The police later located Walker and C.C., and both of them identified Clifton as the shooter.
Following the police investigation, Clifton was indicted by a grand jury for first-degree premeditated murder under Minn. Stat. § 609.185(a)(1) (2004) and second-degree intentional murder under Minn. Stat. § 609.19, subd. 1(1) (2004). Walker testified during the grand jury process and identified Clifton as the shooter.
Clifton was tried before a jury in Hennepin County District Court in March 2003. During the March trial, Walker recanted the statements he had made to police and to the grand jury. Walker testified that he had not seen Clifton shoot Nix and that he did not know who shot Nix. Then, after a lunch break, Walker changed his testimony and said that he did see Clifton shoot Nix. Walker also explained that the testimony he gave earlier was not accurate because he was nervous ...