                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2016).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A16-1142

                              Brett Thomas Green, petitioner,
                                        Appellant,

                                             vs.

                                    State of Minnesota,
                                       Respondent.

                                  Filed January 17, 2017
                                         Affirmed
                                     Schellhas, Judge

                                Isanti County District Court
                                  File No. 30-CR-08-1174

Brett Thomas Green, Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Jeffrey R. Edblad, Isanti Scott County Attorney, Scott A. Hersey, Special Assistant County
Attorney, Minnesota County Attorneys Association, St. Paul, Minnesota (for respondent)

         Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and Jesson,

Judge.

                         UNPUBLISHED OPINION

SCHELLHAS, Judge

         Appellant challenges the district court’s summary denial of his postconviction

petition, arguing that (1) he is entitled to a default judgment because the court issued its

order 118 days after he filed his petition; (2) the court abused its discretion by denying him
an evidentiary hearing and a new trial on his claim of newly discovered alibi evidence; and

(3) the court erred by denying his challenge to the Minnesota Department of Corrections’

extension of his incarceration. We affirm.

                                            FACTS

       A jury found appellant Brett Green guilty of first-degree criminal sexual conduct

(complainant at least 13 but less than 16 years of age and actor more than 48 months older

than complainant and in position of authority over complainant), and the district court

sentenced Green to 153 months’ imprisonment. State v. Green, No. A11-850, 2012 WL

1470164, at *2 (Minn. App. Apr. 30, 2012) (Green I). A full recitation of the facts of the

criminal-sexual-conduct incident are summarized in that opinion. See id. at *1. Green

maintained at trial that the victim, A.S., fabricated her claim and that no sexual contact

occurred. Green’s counsel emphasized alleged inconsistences in A.S.’s testimony. Counsel

argued that “[c]hildren can’t consent, but what children can do is tell stories” and that A.S.

“told a story to her friends to fit in, to look cool, and to impress them. . . . It was gossip”;

and argued that “[t]here’s no magic bullet to tell who . . . is or isn’t telling the truth,” but,

“if a person is constantly telling you one thing and then the other and then something else,

we tend to not believe them. And that’s the case here.” This court affirmed Green’s

conviction, rejecting his arguments that the evidence was insufficient to support his

conviction and that he was entitled to a new trial because false testimony was admitted at

trial. Id. at *4–5.

       Following his direct appeal, Green unsuccessfully sought habeas relief in federal

district court and postconviction relief in state court. See Green v. State, No. A15-1386,


                                               2
2016 WL 1397121 (Minn. App. Apr. 11, 2016) (Green III), review denied (Minn. June 29,

2016); Green v. State, No. A14-0613, 2015 WL 46502 (Minn. App. Jan. 5, 2015) (Green

II), review denied (Minn. Mar. 17, 2015); Green v. Warden of Rush City MCF, Civil No.

13-3061 ADM/SER, 2014 WL 2003016 (D. Minn. May 15, 2014).

       In January 2016, Green filed another postconviction petition, claiming newly

discovered evidence and seeking a new trial based on the alleged recantation of testimony

by M.W., a witness. At trial, M.W. had testified that on the night of the incident, he was at

home with Green and A.S.; that his mother had left for the night and had left Green in

charge; that Green was on the couch, and A.S. was on the couch or the recliner; that M.W.

fell asleep and awoke early the next morning; that when M.W. awoke, A.S. was in his

bedroom and Green was in his mother’s bedroom; and that M.W. did not see anything

happen between A.S. and Green.

       In an October 23, 2015 affidavit filed with the district court, M.W. averred that A.S.

threatened him into testifying against Green, bribing him with a promise of sex if he agreed;

that Green “was never put into a position of authority by” his mother; that A.S. made

advances toward Green on the night of the incident, which annoyed Green; that he was

only asleep for 30 to 45 minutes; and that A.S. did so many drugs on the night of the

incident that she did not remember what happened. M.W. also averred that he was recanting

his trial testimony because he felt guilty and that he waited five years to do so because he

was afraid of getting into trouble.

       The district court summarily denied Green’s postconviction petition. This appeal

follows.


                                             3
                                        DECISION

         In its order denying Green postconviction relief, the district court noted that Green’s

requests for relief in his postconviction petition are “essentially identical to that requested

in his prior postconviction proceedings,” also noting that the “only new issues raised are a

request to change the expiration date on his Department of Corrections record, to remove

an entry from his Department of Corrections discipline record, and to order an evidentiary

hearing and new trial in consideration of the submitted affidavit of trial witness [M.W.].”

Claim of entitlement to default judgment

         Green asserts that the district court erred by not granting him default judgment,

arguing that the court was required to grant him default judgment because it did not issue

its postconviction order within the “legal limit for review legally set at 90 days.” To support

his argument, Green cites Minn. Stat. § 590.01−.02 (2014) and State v. Knaffla, 309 Minn.

246, 243 N.W.2d 737 (1976). Because nothing in chapter 590 or Knaffla mandates that the

district court issue an order on a postconviction petition within 90 days, Green’s argument

fails.

Denial of evidentiary hearing and new trial

         Green argues that the district court erred by denying him an evidentiary hearing and

new trial on his claim of newly discovered alibi evidence, i.e., M.W.’s alleged recantation.

He claims that M.W.’s affidavit presents evidence that proves his actual innocence by a

preponderance of the evidence because it discredits A.S.’s testimony, establishes that there

was no time for the crime to occur, and shows that Green was not put in a position of

authority over M.W. and A.S. when the sexual contact occurred. Green also claims that the


                                                4
affidavit proves that he is innocent because the victim, A.S., is not credible because she is

a “single witness of dubious veracity testimony” who “made up [her] claims” and that the

evidence therefore is insufficient to support his conviction. The district court concluded

that, “even if taken as true,” nothing contained in M.W.’s affidavit “would probably

produce a more favorable result,” noting that “a review of [M.W.]’s trial testimony shows

it is markedly consistent with his Affidavit regarding the essentials of the events in

dispute.”

       “A postconviction petitioner is entitled to 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.’” Caldwell v. State, 853 N.W.2d 853, 770 (Minn. 2014) (quoting Minn.

Stat. § 590.04, subd. 1 (2012)). “In the context of witness-recantation claims,” the

allegations in the postconviction petition must have factual support that carries “sufficient

indicia of trustworthiness” and “recite facts that would, if proven by a preponderance of

the evidence, entitle the petitioner to a new trial.” Id. (quotation omitted). “[A] petitioner

is entitled to an evidentiary hearing if, assuming that the trustworthy allegations contained

in the petition, files, and records are true, a court would conclude that a material witness’s

trial testimony was false and that the false testimony might have affected the verdict.” Id.

at 772. “Courts generally view recanting affidavits and testimony with suspicion.” State v.

Ferguson, 742 N.W.2d 651, 659 (Minn. 2007).

       “The postconviction court may summarily deny a petition without holding a hearing

if the petition, files, and records conclusively show that the petitioner is not entitled to

relief.” Hooper v. State, ___ N.W.2d ___, ___, 2016 WL 7232358, at *3 (Minn. Dec. 14,


                                              5
2016). “[Appellate courts] review the summary denial of a petition for postconviction relief

for an abuse of discretion.” Carridine v. State, 867 N.W.2d 488, 492 (Minn. 2015). “Legal

issues are reviewed de novo, but review of factual matters is limited to determining whether

there is sufficient evidence in the record to sustain the postconviction court’s findings.” Id.

“When applying this standard, a matter will not be reversed unless the postconviction court

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.” Id. (quotation

omitted).

       “The decision whether to grant a new trial based upon newly discovered evidence

rests with the court and will not be disturbed unless there is an abuse of discretion.”

Pederson v. State, 649 N.W.2d 161, 163 (Minn. 2002). A new trial based upon newly

discovered evidence may be granted when a defendant proves:

              (1) that the evidence was not known to the defendant or his/her
              counsel at the time of the trial; (2) that the evidence could not
              have been discovered through due diligence before trial;
              (3) that the evidence is not cumulative, impeaching, or
              doubtful; and (4) that the evidence would probably produce an
              acquittal or a more favorable result.

Carridine, 867 N.W.2d at 496 (quoting Rainer v. State, 566 N.W.2d 692, 695 (Minn.

1997)) (quotation marks omitted). “Although the four-prong Rainer test is the correct test

for newly-discovered evidence, it is not the correct test when a court reviews an allegation

that false testimony was given at trial.” Dukes v. State, 621 N.W.2d 246, 256 (Minn. 2001),

holding modified by Ferguson v. State, 645 N.W.2d 437, 445 (Minn. 2002).




                                              6
       In this case, the district court applied the four-part Rainer test. But when assessing

the merits of a claim based on false or recanted testimony, the reviewing court “follow[s]

the three-prong test set forth in Larrison v. United States, 24 F.2d 82, 87–88 (7th Cir.

1928).” Ortega v. State, 856 N.W.2d 98, 103 (Minn. 2014). A new trial based on false

testimony may be granted where (1) the court is reasonably well satisfied the testimony

was false; (2) the jury might have reached a different conclusion without the testimony;

and (3) the petitioner was surprised by the testimony and was unable to counteract it or did

not know it was false until after the trial. State v. Nicks, 831 N.W.2d 493, 511 (Minn. 2013).

“The first two prongs of the Larrison test are compulsory.” Dobbins v. State, 845 N.W.2d

148, 151 (Minn. 2013). “The third prong is relevant but is not an absolute condition

precedent to granting relief.” Id. (quotation omitted). “When applying the Larrison factors

to determine whether to grant an evidentiary hearing, the postconviction court must assume

the truth of the allegations in the petition.” Ortega, 856 N.W.2d at 103.

       The state argues that the Larrison test is the appropriate test but does not specifically

allege that the district court erred by applying the Rainer test. Green makes no argument

that the Larrison test is the appropriate test. We agree that the appropriate test is the three-

part Larrison test instead of the four-part Rainer test because Green is claiming that M.W.

recanted his false trial testimony. Applying the Larrison test, we conclude that Green failed

to meet his burden of proving the first part of the Larrison test—that M.W.’s trial testimony

was false. Green also failed to satisfy the second part of the Larrison test because, even if

the court accepts that the testimony was false, he cannot prove that the jury might have

reached a different conclusion based upon the facts alleged in the affidavit and without the


                                               7
trial testimony. He also failed to satisfy the third part of the Larrison test—that he was

surprised by M.W.’s testimony and was unable to counteract it or did not know it was false

until after the trial.

        The district court correctly concluded that M.W.’s trial testimony and affidavit are

consistent on the essential points in dispute and that M.W.’s affidavit therefore does not

raise a genuine factual dispute about Green’s innocence. Green’s claims amount to no more

than an attack on A.S.’s credibility that this court already has rejected. See Green I, 2012

WL 1470164, at *4 (rejecting Green’s argument that the evidence was not sufficient to

convict him because A.S. gave four different versions of the sexual touching because

“[a]ssessing the credibility of a witness is exclusively the function of the jury,” and

explaining that, “the law imposes no requirement that the testimony of a sexual assault

victim be corroborated”).

        We agree with the district court that, even if true, M.W.’s affidavit evidence is not

sufficient to prove by a preponderance of the evidence that Green is innocent. The court

did not abuse its discretion by summarily denying Green’s postconviction petition for a

new trial on his claim of newly discovered alibi evidence.

Extended-incarceration challenge

        Green did not file a habeas petition in district court, did not name the Minnesota

Department of Corrections (DOC) as a party to his postconviction proceeding in district

court, and the DOC is not a party to this appeal. Yet Green argues that the DOC violated

his constitutional due-process rights, his privilege against self-incrimination, and the

prohibition against cruel and unusual punishment by extending his incarceration by 30 days


                                              8
for his refusal to participate in chemical-dependency treatment. The DOC extended

Green’s incarceration by 30 days after an administrative hearing at Minnesota Correctional

Facility–Stillwater on February 16, 2016. Green argued that the chemical-dependency

assessment was invalid, that he was not appropriate for treatment, and that he had not

refused treatment. The district court rejected Green’s claims, explaining that a habeas

petition is the proper method for claiming that a constitutional right has been violated

unless the constitutional violation rises to the level of cruel and unusual punishment in

violation of the Eighth Amendment, which was not the case with Green’s petition. The

state argues that Green’s claims about the DOC’s disciplinary policies is not properly

before this court because postconviction remedies are not available for those claims. We

agree.

         First, “the authority of a court to review a sentence is separate and distinct from

judicial authority to review the decisions of the Commissioner in administering the

sentence imposed.” State v. Schnagl, 859 N.W.2d 297, 302 (Minn. 2015). Second,

Minnesota Statutes, chapter 590, “does not provide the district court with a procedural

vehicle to address the administrative decisions of the Commissioner.” Id.; see Thompson

v. State, 284 Minn. 274, 278, 170 N.W.2d 101, 104 (1969) (explaining that Minnesota

Statutes sections 590.01–.06 “were enacted to provide a postconviction remedy by which

a defendant may attack the judgment of conviction”); Rainer, 566 N.W.2d at 696 (holding

that “constitutional claims against the [DOC’s] deduction of room and board costs from

inmate wages to offset the cost of incarceration are not properly brought as a basis for

postconviction relief”). “[T]he Commissioner’s decision involves the gathering of facts,


                                              9
and application of those facts to the sentence, to determine whether the offender has

satisfied the terms of the sentence imposed by the district court.” Schnagl, 859 N.W.2d at

302.

       Third, postconviction petitions are filed in criminal proceedings “between the State

and the defendant in which the DOC is not a party and has no means to intervene.” See id.

at 302−03 (citing State v. Stith, 292 N.W.2d 269, 275 (Minn. 1980) (declining to address

challenge in direct appeal to calculation of offender’s eligibility date for parole “because

the [DOC] is not a party to this action”)). “In the absence of the Commissioner as a party,

a district court’s order directing the Commissioner to correct the expiration date of a

conditional-release term could very well be a non-binding advisory opinion.” Id. at 303.

“A habeas petition is a civil action in which the Commissioner must be named as a party.”

Id. (citing Minn. Stat. § 589.04(b) (2014)); State v. Clark, 270 Minn. 181, 185, 132 N.W.2d

811, 814 (1965) (explaining that in a habeas proceeding “the county attorney is not a proper

respondent with custody”)).

       “Consequently, we conclude that a [postconviction petition under chapter 590] is

not the proper procedure to obtain judicial review of the Commissioner’s administrative

decision.” Schnagl, 859 N.W.2d at 303. Judicial review of the DOC’s administrative

decision implementing an extension of incarceration as a disciplinary measure “may be

obtained by a petition for a writ of habeas corpus in which the Commissioner is a named

party.” Id. We therefore decline to reach the merits of Green’s claim regarding his extended

incarceration. Even if we were to reach the merits of Green’s challenge, no record evidence

suggests that the district court erred in concluding that the DOC acted within its statutory


                                            10
authority by extending Green’s incarceration by 30 days as a result of his failure to

participate in chemical-dependency treatment.

      Affirmed.




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