Opinion
A23-0283
09-15-2023
Michael Carlton Lowe Sr., petitioner, Appellant, v. State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-07-022594.
Considered and decided by Gaitas, Presiding Judge; Slieter, Judge; and Frisch, Judge.
ORDER OPINION
Jennifer L. Frisch, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2007, respondent State of Minnesota charged appellant Michael Carlton Lowe Sr. with one count of first-degree criminal sexual conduct in violation of Minn. Stat. § 609.342, subd. 1(e)(i) (2006), one count of third-degree assault in violation of Minn. Stat. § 609.223, subd. 1 (2006), and one count of terroristic threats in violation of Minn. Stat. § 609.713, subd. 1 (2006).
2. Lowe moved to suppress "[a]ny evidence obtained from [his] unlawful arrest, search and seizure." The district court suppressed evidence of a gun seized from Lowe's home but did not dismiss the charges against him. The matter proceeded to trial. In August 2007, a jury found Lowe guilty of all three counts, and the district court ordered a presentence investigation (PSI). Following a sentencing hearing, the district court sentenced Lowe to 360 months' imprisonment.
3. In 2009, Lowe directly appealed to this court, and we affirmed his convictions. State v. Lowe, No. A07-2321, 2009 WL 437493, at *1 (Minn.App. Feb. 24, 2009), rev. denied (Minn. May 27, 2009).
4. In 2021, the Hennepin County Attorney's Office requested a copy of Lowe's PSI, noting that "[t]he district court file does not presently contain Mr. Lowe's PSI." The district court ordered that a copy of the PSI be sent to the county attorney, that the county attorney send a copy of the PSI to Lowe, and that Hennepin County Probation file a copy of the PSI with the district court. The PSI is dated September 2007.
5. In 2022, Lowe filed his tenth postconviction petition, in which he asserted that the PSI was newly discovered evidence and that this newly discovered evidence was material and would have produced a more favorable result at the suppression hearing. The postconviction court summarily denied Lowe's petition without an evidentiary hearing, reasoning that the petition was time-barred pursuant to Minn. Stat. § 590.01, subd. 4(a) (2022), and that the PSI was not newly discovered evidence that would qualify as an exception to the time-bar pursuant to Minn. Stat. § 590.01, subd. 4(b)(2) (2022). The postconviction court specifically noted that the evidence from the PSI upon which Lowe relied as a basis for relief was his own version of events, which "was known to [Lowe] since the outset of the case." Lowe appeals.
Lowe's appeal was untimely, but we extended the time for appeal for good cause pursuant to Minn. R. Crim. P. 28.02, subd. 4(3)(g).
6. We "review the summary denial of a postconviction petition for an abuse of discretion." El-Shabazz v. State, 984 N.W.2d 569, 573 (Minn. 2023). We review "legal conclusions de novo" and "factual findings for clear error." Id. "A district court need not hold an evidentiary hearing if the alleged facts when viewed in a light most favorable to the petitioner, together with the arguments of the parties, conclusively show that the petitioner is entitled to no relief." Id. (quotation omitted). "A district court does not abuse its discretion when it summarily denies a postconviction petition that is time-barred." Martin v. State, 969 N.W.2d 361, 363 (Minn. 2022).
7. A petition for postconviction relief must be filed within two years of the entry of a judgment or, if a direct appeal was filed, an appellate court's disposition of the direct appeal. Minn. Stat. § 590.01, subd. 4(a). But a petition filed after this deadline may be treated as timely if a statutory exception applies. Id., subd. 4(b) (2022). The petitioner has the burden of showing that an exception applies. El-Shabazz, 984 N.W.2d at 574. There is no dispute that Lowe's tenth postconviction petition was filed outside of the two-year statutory time limit. Thus, to avoid the time-bar, Lowe must show that an exception applies.
8. One exception to the time-bar exists when "the petitioner alleges the existence of newly discovered evidence." Minn. Stat. § 590.01, subd. 4(b)(2). To qualify under the newly-discovered-evidence exception, a postconviction petition must contain allegations that (1) newly discovered evidence exists, (2) the new 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 postconviction petition," (3) "the evidence is not cumulative to evidence presented at trial," (4) the evidence is not being used for impeachment purposes, and (5) the evidence "establishes by a clear and convincing standard that the petitioner is innocent of the offense or offenses for which the petitioner was convicted." Minn. Stat. § 590.01, subd. 4(b)(2); see also El-Shabazz, 984 N.W.2d at 574. "All five requirements must be met for the newly discovered evidence exception to apply." El-Shabazz, 984 N.W.2d at 574.
9. On appeal, Lowe argues that the postconviction court abused its discretion in determining that the PSI was not newly discovered evidence and summarily denying his petition. Lowe argues that the PSI shows that (1) the district court erred in failing to suppress evidence obtained from a blood draw, the results of a sexual-assault exam, and DNA evidence, and in failing to dismiss the charges against Lowe, (2) the prosecution committed misconduct by misrepresenting at the suppression hearing that the only evidence seized without a warrant was a gun and by withholding the PSI in violation of Brady v. Maryland, 373 U.S. 83 (1963), (3) the district court judge who denied the motion to suppress violated the law and became conflicted from presiding over trial after denying the suppression motion, and (4) Lowe received ineffective assistance of counsel because his counsel failed to argue that the evidence should be suppressed. Lowe asks us to order a Franks hearing or his immediate release from custody.
Franks v. Delaware, 438 U.S. 154 (1985).
10. Even viewing the allegations in the light most favorable to Lowe, we cannot conclude that he has met his burden to show that the PSI qualifies as newly discovered evidence for the purposes of avoiding the statutory time-bar. The PSI is not newly discovered evidence. Lowe had knowledge of the allegedly warrantless seizure of biological evidence and the existence of the PSI. The portion of the PSI upon which Lowe relies to show that biological evidence was seized from his person without a warrant originates from the section of the PSI titled "Defendant's Version." It summarizes statements by Lowe, including "[t]hey took my blood without a warrant." Lowe was present when the district court ordered a PSI following the verdict at trial. Under these circumstances, we cannot conclude that the PSI is newly discovered evidence for purposes of the current postconviction petition. See, e.g., Caldwell v. State, 976 N.W.2d 131, 139 (Minn. 2022) (citing Onyelobi v. State, 966 N.W.2d 235, 238 (Minn. 2021)) ("[E]vidence cannot be unknown when the petitioner was admittedly present at the time of the events the witness purports to describe for the purposes of the newly discovered evidence exception in subdivision 4(b)(2)."); Riley v. State, 819 N.W.2d 162, 169 (Minn. 2012) ("When a defendant has knowledge of the [evidence] at the time of trial, the [evidence] fails the legal test for newly discovered evidence."); see also El-Shabazz, 984 N.W.2d at 575 (concluding that the substance of a new affidavit was known to the defendant at the time of trial because the defendant was present at the time of the relevant events described therein). We are further convinced that the PSI evidence was known to Lowe, as he has previously asserted that his DNA was seized without a warrant. See Martin, 969 N.W.2d at 365 (concluding that evidence was not newly discovered because it was known to the appellant at the time of trial and noting that the appellant had "repeatedly argued" the substance of the evidence).
In his appellate brief, Lowe acknowledges that this is his version of his arrest.
11. And, to the extent that the alleged newly discovered evidence is that the PSI had not been filed, we are not persuaded that Lowe or his attorney were unable to ascertain such evidence through the exercise of due diligence. Minn. Stat. § 590.01, subd. 4(b)(2). Pursuant to Minn. Stat. § 485.07(1) (2022), the register of actions shows all of the filings with the district court. Lowe has offered no reason why he could not have, through the exercise of due diligence, discovered long ago that the PSI had not been filed.
12. Because Lowe has not established that the PSI is newly discovered evidence, we conclude that the postconviction court did not abuse its discretion by determining that the petition was time-barred and in summarily denying Lowe's petition for postconviction relief.
IT IS HEREBY ORDERED:
1. The postconviction court's order is affirmed. 2. Pursuant to Minn. R. Civ. App. P. 136.01, subd. 1(c), this order opinion is nonprecedential, except as law of the case, res judicata, or collateral estoppel.