Opinion
A23-0773
12-27-2023
Alveto Rivera, petitioner, Appellant, v. State of Minnesota, Respondent.
Hennepin County District Court File No. 27-CR-08-38132
Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Ede, Judge.
ORDER OPINION
Renee L. Worke, Judge
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. In 2009, appellant Alveto Rivera pleaded guilty to first-degree criminal sexual conduct. Rivera appealed, we affirmed his conviction, and the supreme court denied the petition for further review. See State v. Rivera, No. A09-1023 (Minn.App. Apr. 27, 2010), rev. denied (Minn. June 29, 2010).
In previous cases, appellant's name is "Alberto."
2. Rivera then filed four petitions for postconviction relief. The district court denied each petition, we affirmed each denial, and the supreme court denied each petition for further review. See Rivera v. State, No. A12-2081 (Minn.App. May 13, 2013), rev. denied (Minn. July 16, 2013); Rivera v. State, No. A17-1379 (Minn.App. Mar. 7, 2018), rev. denied (Minn. May 15, 2018); Rivera v. State, No. A19-1458 (Minn.App. May 7, 2020), rev. denied (Minn. July 21, 2020); Rivera v. State, No. A21-0707 (Minn.App. Nov. 10, 2021), rev. denied (Minn. Jan. 26, 2022).
3. In December 2022, Rivera filed his fifth petition for postconviction relief, arguing that the investigating police department and "Child Protection . . . failed to turn over exculpatory evidence." Rivera attached a police department incident report dated July 30, 2008, that provides: "Once [Rivera] told [the victim] to get on her knees and to suck his private parts but she did not." "Once [Rivera] made [the victim] suck on his private parts while he rubbed her hair on the top of her head." He also attached a copy of a transcript from Child Protection's interview with the victim. The victim stated: "[O]nce [Rivera] told me to get down on my knees and try sucking [his private part] but I didn't want to . . . . [H]e said fine then only this time you can get away with it." The interviewer asked: "Did he ever make you suck on his private part?" The victim replied: "Once."
4. Rivera attached a letter from his attorney dated July 19, 2012, indicating that discovery was enclosed and that missing discovery would be sent when found. Rivera submitted a second letter from his attorney dated August 21, 2021, that provided: "Please find enclosed all reports, discovery and statements that are in your file."
5. The state indicated that initial discovery was provided to Rivera's attorney on August 4, 2008, but the file did not list what was included in that disclosure. The state also sent three discovery letters to Rivera's attorney. An August 19, 2008 letter included a supplemental police report dated August 18, 2008. A September 10, 2008 letter included a supplemental police report dated August 29, 2008. And a November 19, 2008 letter included "[a] copy of the entire 2007 and 2008 Child Protection files and a CD of the interviews." The letter indicated that "[t]o date, [the state] provided all documents [in its] possess[ion] in relation to discoverable materials."
6. On May 9, 2023, the district court denied Rivera's fifth petition for postconviction relief. The district court concluded that Rivera's petition was time-barred and procedurally barred, see State v. Knaffla, 243 N.W.2d 737, 741 (Minn. 1976), and that Rivera was not entitled to an evidentiary hearing.
7. Rivera now challenges the district court's denial of his fifth petition for postconviction relief, which we review for an abuse of discretion. See Pearson v. State, 891 N.W.2d 590, 596 (Minn. 2017).
A postconviction court abuses its discretion when it has 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. Legal issues are reviewed de novo, but our review of factual issues is limited to whether there is sufficient evidence in the record to sustain the postconviction court's findings.Id. (quotations and citation omitted).
8. Rivera first argues that his petition should be considered even though untimely. The district court may summarily deny an untimely postconviction petition. Minn. Stat. § 590.01, subd. 4 (2022). A postconviction petition is outside the statute of limitations when it is filed "more than two years after the later of: (1) the entry of judgment of conviction or sentence if no direct appeal is filed; or (2) an appellate court's disposition of petitioner's direct appeal." Id., subd. 4(a). The supreme court denied review of Rivera's direct appeal in 2010. He filed this petition in 2022, well outside the limitations period.
9. There are five exceptions to the two-year limitations period; if one is satisfied, the postconviction court may consider an untimely petition. See id., subd. 4(b)(1)-(5). Rivera claims that he satisfied two exceptions-the newly-discovered-evidence and the interests-of-justice exceptions. See id., subd. 4(b)(2), (5).
10. To satisfy the newly-discovered-evidence exception, the petitioner must show that: (1) newly discovered evidence exists, (2) it "could not have been ascertained by the exercise of due diligence by the petitioner or [his] attorney within" the limitation period, (3) it is not cumulative, (4) it is not merely impeaching, and (5) it establishes that the petitioner is innocent of the offense of conviction. Id., subd. 4(b)(2); Riley v. State, 819 N.W.2d 162, 168 (Minn. 2012) (stating that petitioner must establish all five requirements to be entitled to relief).
11. Rivera failed to show that the evidence is newly discovered. The state provided all discovery to Rivera's attorney before Rivera pleaded guilty. Rivera failed to show that the evidence could not have been ascertained within the limitation period because although Rivera received his file in August 2021, the evidence was in his attorney's possession since 2009. Finally, the evidence does not show that Rivera is innocent; at best, the evidence is merely impeaching. The incident report provides: "Once [Rivera] made [the victim] suck on his private parts." In the interview, the victim was asked: "Did [Rivera] ever make you suck on his private part?" The victim replied: "Once." The district court appropriately concluded that Rivera failed to meet the newly-discovered-evidence exception to the statute of limitations.
12. To satisfy the interests-of-justice exception, the petitioner must establish "that the petition is not frivolous and is in the interests of justice." Minn. Stat. § 590.01, subd. 4(b)(5). This exception is "triggered by an injustice that caused the petitioner to miss the primary deadline . . . not the substantive claims in the petition." Caldwell v. State, 976 N.W.2d 131, 141 (Minn. 2022) (emphases omitted) (quotation omitted).
13. Rivera asserts that he did not deliberately and inexcusably fail to raise the claim earlier because he did not know it existed until he received his complete file in 2021. The incident report upon which Rivera relies is dated July 30, 2008. Initial discovery was provided to Rivera's counsel on August 4, 2008. While there was not a list of documents provided, it seems that this incident report would have been in that initial disclosure. But even if it was not, Rivera also relies on the interview transcript. The Child-Protection interviews were disclosed to Rivera's attorney in November 2008. Rivera fails to explain an injustice that caused him to miss filing his petition within the limitations period when the evidence was in Rivera's file since 2008. The district court appropriately determined that Rivera failed to meet the interests-of-justice exception.
14. Rivera next argues that his claim is not procedurally barred. Petitioners are barred from raising claims in a postconviction petition that could have been raised on direct appeal and claims that they should have known about at the time of direct appeal. See Knaffla, 243 N.W.2d at 741; Reed v. State, 793 N.W.2d 725, 729-30 (Minn. 2010); see Minn. Stat. § 590.01, subd. 1(2) (2022) ("A petition for postconviction relief . . . may not be based on grounds that could have been raised on direct appeal of the conviction or sentence."); see also Walen v. State, 777 N.W.2d 213, 215 (Minn. 2010) (stating that claims raised in an earlier postconviction petition are barred). There are two exceptions: "if the claim presents a novel legal issue" or "if fairness requires review . . . and [the] petitioner did not deliberately and inexcusably fail to raise the issue." Quick v. State, 692 N.W.2d 438, 439 (Minn. 2005).
15. Rivera argues that both exceptions apply. He argues that because the evidence is new, it is a novel issue for him to litigate the victim's statement that he did not commit the offense. He also argues that fairness requires review because the "evidence was clearly . . . exculpatory [and] was never found in the petitioner['s] discovery, the prosecutor . . . did not have it in his possession, the defense attorney did not have it in his possession." But the victim's statements are not new; they were known, or should have been known, at the time of direct appeal because the evidence was in Rivera's file. Additionally, fairness does not require review because the statements are not exculpatory. The district court appropriately determined that Rivera's claim is procedurally barred.
If the documents were not included in discovery, not in the prosecutor's possession, and not in the defense attorney's possession, it is unclear how Rivera learned of their existence and how they were ultimately discovered and provided to Rivera.
16. Finally, Rivera argues that he was entitled to an evidentiary hearing because "material facts are in dispute." The postconviction court's decision to deny an evidentiary hearing is reviewed for an abuse of discretion. Caldwell v. State, 853 N.W.2d 766, 770 (Minn. 2014).
17. A postconviction court must hold an evidentiary hearing "[u]nless the petition and the files and records of the proceeding conclusively show that the petitioner is entitled to no relief." Minn. Stat. § 590.04, subd. 1 (2022). The allegations in the petition are to be considered as true and construed in the light most favorable to the petitioner. Andersen v. State, 913 N.W.2d 417, 422-23 (Minn. 2018). "When a petitioner alleges facts that, if true, are legally insufficient to entitle him to the requested relief, the postconviction court need not hold an evidentiary hearing." Greer v. State, 836 N.W.2d 520, 522 (Minn. 2013) (quotation omitted). The petitioner bears the burden to allege facts-more than argumentative assertions-that if proven would entitle him to relief. Wilson v. State, 726 N.W.2d 103, 107 (Minn. 2007); State v. Turnage, 729 N.W.2d 593, 599 (Minn. 2007).
18. Considering the allegations in the petition as true-that agencies failed to turn over evidence of the victim stating "that she did not suck [Rivera's] private parts"- they are legally insufficient to entitle Rivera to relief because although the victim stated that Rivera once said, "fine then only this time you can get away with [not sucking on his private part]," she stated that he also made her "suck on his private part." The district court appropriately denied Rivera an evidentiary hearing.
IT IS HEREBY ORDERED:
1. The district 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.