In the last few weeks there have been a slew of opinions from the Minnesota Supreme Court that begin to answer some of the questions about just how the 2005 enactment of a limitations period in the post conviction statute will play out. The general rule establishes a two year limitations period. That part’s easy; it’s the exceptions that come into play in these recent opinions so let’s put up the exceptions to the general rule of a two year limitations period first:
A petition for post conviction relief may be heard notwithstanding the general time limitation if:
(1) the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim;
(2) the petitioner alleges the existence of newly discovered evidence, including scientific 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 post conviction petition, and the evidence is not cumulative to evidence presented at trial, is not for impeachment purposes, and establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted;
(3) the petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court and the petitioner establishes that this interpretation is retroactively applicable to the petitioner’s case;
(4) the petition is brought pursuant to subdivision 3; or
(5) the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.
Here’s what’s been going on:
There is no specific pleading requirement in order to invoke one of the limitations exceptions:
Roby v. State, Minn.S.Ct., 8/19/2010. Back in 1989 Mr. Roby received a life sentence for a homicide conviction. In 2005 the legislature enacted two limitations periods for filing post conviction petitions. The general rule established a two year limitations period, measured from the date the conviction became “final”. The legislature established a two year grace period, measured from the date the legislation took effect (August 1, 2005), effectively giving guys until July 31, 2007 to file. The second rule established certain specified exceptions to the general rule.
Mr. Roby filed this petition in March 2009 so he had to meet on of the second rule exceptions to stay in court regardless of the merits of his claims. Mr. Roby’s petition said that he had newly discovered evidence – possibly one of the second rule exceptions – and that the post conviction court should consider his claim “in the interests of justice” – another of the second rule exceptions. The state responded that Mr. Roby needed to plead – with precision – the exact statutory exception on which he relied in order to avoid a dismissal of his petition as untimely.
A unanimous court – Justice Stras not sitting - rejects this assertion. Justice Meyer points to the post conviction statute, itself, which specifically prohibits “argument or citation of authorities” in the body of the petition. Minn.Stat. 590.02, subd. 1(1). If that’s not enough, then there is the section that requires the post conviction court to construe the petition liberally. Minn.Stat. 590.03.
Striking out with one exception does not preclude consideration of the other exceptions.
Gassler v. State, Minn.S.Ct., 9/2/2010. Mr. Gassler is also serving a life sentence for the murder of Mr. Yungk. The accusation was that Mr. Gassler killed Mr. Yungk with a shotgun, which the police ultimately recovered, along with some shotgun ammunition, from Mr. Gassler, by way of his mother. An FBI expert testified that he compared shotgun pellets recovered from Mr. Yungk’s body with the recovered ammunition; his conclusion was that the pellets and the shotgun ammunition not only had a common manufacturer but a common ammunition box. Years later, after Mr. Gassler’s conviction, the FBI announced its abandonment of this testing because its results had been shown to be unreliable.
Mr. Gassler filed his post conviction petition within two years of the FBI’s renunciation of the pellet comparison, saying that this renunciation was newly discovered evidence, an exception to the general two year limitations period. (The Court says its actually false evidence but includes it within the newly discovered evidence exception.) Mr. Gassler also said that the petition should be heard in the interests of justice. First, the newly discovered evidence claim:
In order for the newly discovered evidence exception to apply: (1) a petitioner must allege the existence of newly discovered evidence (including scientific evidence); (2) the evidence 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 post conviction petition; (3) the evidence is not cumulative to evidence presented at trial; (4) the evidence is not for impeachment purposes; and (5) the evidence must establish by the clear and convincing standard that the petitioner is innocent of the offense for which the petitioner was convicted. Minn. Stat. § 590.01, subd. 4(b)(2).
Neither the parties nor the post conviction court quibbled with whether Mr. Gassler met the first four requirements. It’s the fifth requirement that is at issue. Justice Page says that even if you threw out this evidence Mr. Gassler still had failed to establish by clear and convincing evidence that he is innocent. There was lots of other evidence that jury heard on which it could have based its verdict. That improperly admitted pellet comparison evidence may have influenced the jury does not establish innocence. So, Mr. Gassler is not entitled to have his petition heard under this exception.
What about interests of justice? The post conviction court, the state and the concurring justices Gildea and Dietzen thought that because Mr. Gassler failed the newly discovered evidence exception that was the end of it. The majority thinks otherwise. Justice Page points out that each of the exceptions is connected by the word, “or” in its disjunctive sense. This means that just because Mr. Gassler did not meet one of the exceptions did not preclude him meeting one of the other ones.
So, what’s required to obtain relief under the interests of justice exception? Well, the case has to be “exceptional,” apparently determined by a number of possible factors to consider: (1) does the claim have substantive merit that the petitioner did not deliberately and inexcusably fail to raise on direct appeal; (2) weighing the fault of the petitioner for the error against the fault of the defending party for it, is there some “fundamental unfairness to the defendant that needs to be addressed; and (3) does the integrity of the judicial proceedings need to be protected. For Mr. Gassler, the court picks door number 3 and concludes that his petition fails that test. There’s all that other evidence to support the guilty verdict so that the admission of junk science did not result in a “trial so fundamentally unfair to Gassler as to require us to act to protect the integrity of the judicial process.” This seems to be the adoption of a “little bit pregnant” test, but that’s what happened.
Scott v. State, Minn.S.Ct., 9/23/2010. Mr. Scott is a codefendant of Mr. Gassler. Same situation regarding admission of the pellet comparison testimony, with the same result: Mr. Scott could not establish his innocence by clear and convincing evidence. Turning to the interests of justice exception, same result. Same two justices concur in the result only.
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