Opinion
A20-1478
07-21-2021
Emad GH AL Rousan, petitioner, Appellant, v. State of Minnesota, Respondent.
ORDER OPINION
Ramsey County District Court
File No. 62-CR-17-7191 Considered and decided by Bryan, Presiding Judge; Hooten, Judge; and Slieter, Judge.
BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND BECAUSE:
1. On November 9, 2017, appellant Emad Al Rousan pleaded guilty to a misdemeanor violation of an order for protection (OFP) that prohibited him from calling his wife. On January 11, 2018, the district court accepted Rousan's guilty plea and sentenced him to 90 days in jail, stayed for one year, and placed him on probation for one year. On January 22, 2019, Rousan was discharged from probation.
2. On September 11, 2019, Rousan filed a petition for postconviction relief, or in the alternative, a motion to withdraw his guilty plea. Rousan argued that he was entitled to postconviction relief because his counsel failed to advise him of the immigration consequences of his guilty plea.
3. On December 12, 2019, the district court summarily denied Rousan's requested relief. The district court determined that because the plea petition and transcript from the plea hearing established that Rousan's attorney had advised him that pleading guilty may result in deportation, and because he was not convicted of an offense that would result in automatic deportation, his counsel was effective.
6. On January 8, 2020, Rousan appealed to this court, raising the single issue of ineffective assistance of counsel. On August 3, 2020, we affirmed the district court, concluding that because Rousan reviewed the general immigration advisory in the plea petition with his attorney, he received effective assistance of counsel regarding potential immigration consequences. Rousan v. State, No. A20-0040, 2020 WL 4434594, at *3-4 (Minn. App. Aug. 3, 2020).
8. On August 31, 2020, Rousan filed a second petition for postconviction relief, or in the alternative, a motion to withdraw his guilty plea. Rousan appears to have argued to the district court that he was entitled to postconviction relief because he was not provided an interpreter during all portions of the proceedings and that, as a result, he waived the necessity defense.
9. On October 20, 2020, the district court again summarily denied Rousan's requested relief. The district court determined that Rousan's second petition was untimely. The district court also concluded that the transcript from the plea hearing established that Rousan expressly waived the necessity defense and that an interpreter was present at the plea hearing. Rousan now appeals the denial of his second petition.
10. Rousan argues that the district court must allow him to withdraw his guilty plea to correct a manifest injustice because the plea was invalid. Specifically, Rousan contends that he waived the necessity defense since he was "disabled in communication as defined by Minnesota Statute, and was not given an interpreter to aid in his understanding during all portions of these proceedings."
11. In reviewing a district court's denial of a petition for postconviction relief, this court reviews the district court's factual findings for clear error, its legal conclusions de novo, and its decision whether to grant relief for an abuse of discretion. Sanchez v. State, 890 N.W.2d 716, 719-20 (Minn. 2017).
12. Section 590.01 of the postconviction statute provides that "[n]o petition for postconviction relief may be filed 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) (2020).
13. There are several exceptions to this time limit, but only one is relevant here: the postconviction court may hear an untimely petition if the petitioner's claim is not frivolous and reviewing the claim is in the interests of justice. Id., subd. 4(b)(5) (2020). The interests-of-justice exception is "triggered by an injustice that caused the petitioner to miss the primary postconviction deadline, not the substantive merits of the petition." Brown v. State, 863 N.W.2d 781, 788 (Minn. 2015). Untimely petitions brought under the interests-of-justice exception are also subject to a statute of limitations—a petition brought under the exception must be brought "within two years of the date the claim arises." Minn. Stat. § 590.01, subd. 4(c) (2020); see also Pearson v. State, 946 N.W.2d 877, 884 (Minn. 2020).
14. Under subdivision 4(a)(1), Rousan was required to bring the second postconviction petition within two years of his conviction and sentencing, and under subdivision 4(c), he was required to bring the second postconviction petition within two years of the date when his claims in the petition arose. Rousan was convicted and sentenced on January 11, 2018, which was also the date when his claims in his second postconviction petition arose. However, he filed his second petition for postconviction relief on August 31, 2020, and he points to no injustices that may have caused him to miss the two-year deadline of January 11, 2020, to file the petition. Consequently, the district court did not abuse its discretion by denying Rousan's petition based on untimeliness.
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.
Dated: 7/21/21
BY THE COURT
/s/_________
Judge Carol A. Hooten