                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1176

                                Rojelio Castillo, petitioner,
                                        Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                   Filed April 25, 2016
                                        Affirmed
                                      Worke, Judge

                              Ramsey County District Court
                               File No. 62-K1-05-001628

Cathryn Middlebrook, Chief Appellate Public Defender, Carol Comp, Special Assistant
Public Defender, St. Paul, Minnesota (for appellant)

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

John J. Choi, Ramsey County Attorney, Kaarin Long, Assistant County Attorney, St. Paul,
Minnesota (for respondent)


       Considered and decided by Halbrooks, Presiding Judge; Worke, Judge; and

Bjorkman, Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

       Appellant Rojelio Castillo challenges the denial of his petition for postconviction

relief, arguing that the district court abused its discretion when it denied his request for
postconviction relief because testing deficiencies discovered at the St. Paul Police

Department Crime Lab (SPPDCL) provided a basis on which to vacate his conviction.

Appellant argues that his petition was not time-barred and he is entitled to postconviction

relief because of newly discovered evidence, a Brady violation, a due-process violation,

manifest injustice, and ineffective assistance of counsel. Because this court has rejected

identical arguments as applied to similar facts in Roberts v. State, 856 N.W.2d 287, 288-

89 (Minn. App. 2014), review denied (Minn. Jan. 28, 2015), we affirm the district court’s

denial of Castillo’s petition.

                                          FACTS

         In March 2005, police officers investigated a report of a Hispanic male selling

methamphetamine from an address in St. Paul. According to the complaint, the officers

approached two Hispanic men sitting in a car near the address, ultimately arresting

appellant Rojelio Castillo on a felony warrant. Before arresting him, the officers saw

Castillo push something under his seat with his left foot and, upon investigating, found

several plastic baggies, some empty and some containing a white powdery substance.

When they searched Castillo, the officers also found a black gram scale in his jacket pocket.

The police suspected that the baggies contained methamphetamine. The substances in the

baggies were tested by the St. Paul Police Department Crime Lab (SPPDCL), which

determined they were positive for methamphetamine, weighing 6.9, 0.37, 0.25, and 2.48

grams.

         Castillo was charged with second-degree possession of a controlled substance. See

Minn. Stat. § 152.022, subd. 2(1) (2004). In September 2006, Castillo waived his right to



                                             2
a jury trial and proceeded to a stipulated-facts court trial, pursuant to State v. Lothenbach,

296 N.W.2d 854, 857-58 (Minn. 1980).1 Castillo did not challenge the SPPDCL report,

testify, or present any witnesses. Instead, he stipulated that “the substance seized actually

was methamphetamine, in a specific amount” and did not object to the crime lab report as

“proof beyond a reasonable doubt that the drugs tested were methamphetamine.” The

district court found Castillo guilty, and he eventually received an executed sentence of 75

months.

       In July 2014, Castillo filed a petition for post-conviction relief. His petition was

based on revelations that the SPPDCL had inadequate training and testing protocols. See

generally Roberts, 856 N.W.2d at 289. The district court denied Castillo’s petition without

an evidentiary hearing. Castillo appeals.


                                      DECISION

       Castillo raises three issues in his brief. He argues that the district court abused its

discretion by (1) denying his petition for postconviction relief, (2) holding that Castillo was

beyond the statutory filing deadline and did not establish a statutory exception, and (3)

denying his request for an evidentiary hearing. Under this court’s precedent in Roberts,

856 N.W.2d at 287, however, the timeliness issue is dispositive. We conclude that

Castillo’s claims are time-barred and that he has not demonstrated any exception to the

statutory time limits.


1
  “In 2007, Minn. R. Crim. P. 26.01, subd. 4, replaced Lothenbach as the method for
preserving a dispositive pretrial issue for appellate review in a criminal case.” State v.
Myhre, ___ N.W.2d ___, ___, 2016 WL 626048, at *2 (Minn. Feb. 17, 2016).


                                              3
Castillo’s Postconviction Petition is Time-Barred

         An individual who asserts that his criminal conviction was obtained in violation of

his constitutional rights may file a petition for postconviction relief. Minn. Stat. § 590.01,

subd. 1 (2014). Petitions for postconviction relief must be filed within two years of 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) (2014). A

petition filed after the two-year time limit may be considered if it satisfies one of five

statutory exceptions. Id., subd. 4(b) (2014). A petition that invokes one of the exceptions

must be filed within two years of the date the claim arises. Id., subd. 4(c) (2014).

         We review denial of a petition for postconviction relief for an abuse of discretion.

Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction court abuses its

discretion when its decision is based on an erroneous view of the law or is against logic

and the facts in the record.” Id. (quotation omitted). Legal issues are reviewed de novo,

but review of factual issues is limited to whether there is sufficient evidence in the record

to sustain the postconviction court’s findings. Matakis v. State, 862 N.W.2d 33, 36 (Minn.

2015).

         Castillo does not deny that his petition was filed outside the two-year time limit, but

he argues that the newly-discovered-evidence and interests-of-justice exceptions apply.

Each argument is addressed in turn.

The Newly-Discovered-Evidence Exception

         Castillo argues that the testing deficiencies that were discovered at the SPPDCL in

2012 constitute newly discovered evidence. We disagree.



                                                4
       A district court may hear an untimely petition for postconviction relief if (1) the

petitioner alleges the existence of newly discovered evidence, (2) the evidence could not

have been discovered through the due diligence of the petitioner or his attorney within the

two-year time limit, (3) the evidence is not cumulative, (4) the evidence is not for

impeachment purposes, and (5) the evidence establishes the petitioner’s innocence by clear

and convincing evidence. Roberts, 856 N.W.2d at 290 (quoting Minn. Stat. § 590.01, subd.

4(b)(2) (2012)). All five elements must be established to obtain relief. Id. If an exception

applies, the petition must be filed within two years of the date the claim arises. Minn. Stat.

§ 590.01, subd. 4(c). A claim arises when the petitioner “knew or should have known that

the claim existed.” Sanchez v. State, 816 N.W.2d 550, 552 (Minn. 2012).

       This court rejected Castillo’s argument in Roberts, holding that the newly-

discovered-evidence exception did not apply because Roberts failed to show that the testing

deficiencies could not have been discovered through the exercise of due diligence and did

not establish by clear and convincing evidence that he was innocent. Roberts, 856 N.W.2d

at 291-92. Like Roberts, Castillo did not challenge the identity of the substance, nor did

he ever claim that the substance was not methamphetamine. He expressly gave up his right

to challenge the state’s evidence by stipulating to it in a Lothenbach proceeding. See State

v. Riley, 667 N.W.2d 153, 154 (Minn. App. 2003), review denied (Minn. Oct. 21, 2003);

see also Minn. R. Crim. P. 26.01, subd. 4(f) (providing that “[t]he defendant must also

acknowledge that appellate review will be of the pretrial issue, but not of the defendant’s

guilt, or of other issues that could arise at a contested trial” (emphasis added)).




                                              5
       Castillo attempts to distinguish the facts of this case from Roberts, arguing that even

if the SPPDCL reports had been diligently reviewed, it would have taken an attorney with

specialized training to discover the testing deficiencies. To support that proposition,

Castillo, unlike Roberts, “presented an affidavit in his petition from Lauri Traub, one of

the attorneys from the Jensen hearing, outlining why her experience and scientific

background helped her discover what other attorneys could not.” Traub is an assistant

public defender in Dakota County who helped expose the procedural deficiencies at the

SPPDCL. In her affidavit, Traub explained why she believed that she was only able to

discover the testing defects because of her participation in the Public Defender DNA

Intensive Institute, an “intensive training program for 33 public defenders in the science of

DNA,” which spanned 18 months.

       Traub explained that her training included obtaining “the complete underlying DNA

testing file from the BCA and meeting with the scientist to discuss the file.” Upon finishing

the DNA Institute, Traub and some other participants decided to learn more about forensic

drug testing by sending a disclosure request to SPPDCL, ultimately leading to a Frye-Mack

hearing challenging the scientific reliability of the testing performed there.         Traub

concluded that she and her colleague “were able to discern the problems with the crime

lab . . . because of [their] specialized scientific training” and noted that the issues that

concerned her would not have been familiar to an attorney without it.

       Castillo asserts that the Traub affidavit is sufficient to show that the deficient

processes at the crime lab could not have been discovered by due diligence because they

required specialized training to spot. However, this affidavit does not fully address the



                                              6
concerns this court had in Roberts. Castillo “does not claim that he made any effort to

investigate the validity of the test results. Nor does he claim that anyone prevented him

from doing so.” Roberts, 856 N.W.2d at 291.

       Like Roberts, Castillo agreed that the crime lab analyzed the substance found in his

car and identified it as methamphetamine, and accordingly, knew the charge against him

was based on the crime lab's test results. Id. Castillo had access, as Roberts did, to the test

results under the discovery rules, see Minn. R. Crim. P. 9.01 subd. 1(4) (requiring the

prosecutor to disclose scientific tests and permit defense counsel to inspect and reproduce

any scientific test results), and he could have challenged the foundational reliability of the

test results. See Minn. R. Crim. P. 11.02, .04 (allowing the defendant to demand an

omnibus hearing on evidentiary issues). Further, Castillo “could have requested public

funds for that purpose.” Roberts, 856 N.W.2d at 291 (citing Minn. Stat. § 611.21(a) (2004)

(authorizing court-appointed counsel to file an application for expert services and the court

to direct payment for such services by the county in which the prosecution originates)).

       In addition, “to satisfy the newly-discovered-evidence exception, the newly

discovered evidence must establish actual innocence.” Id. at 292 (quotation omitted).

“Actual innocence is more than an uncertainty about guilt. Instead, establishing actual

innocence requires evidence that renders it more likely than not that no reasonable jury

would convict.” Id. (quotation omitted). Here, as in Roberts, there is also nonscientific

evidence of guilt. According to the complaint, the officers saw Castillo push the bag

containing the substance under the seat after he was asked to step out of his car. The

officers also found a scale in Castillo’s pocket with a white powdery substance on its



                                              7
surface that resembled methamphetamine, as well as smaller plastic baggies. Further,

Castillo has not denied in district court or in his postconviction appeal that the substance

was methamphetamine. In Roberts, this court found that similar circumstances were “fatal

to [the appellant’s] attempt to establish actual innocence based on speculation regarding

the validity of the test results in his case.” Id.

         Traub’s affidavit does not negate the fact that Castillo, like Roberts, has failed to

show that he made an attempt to investigate the test results or that anything prevented him

from doing so. Id. at 291. Castillo “has not met his burden to establish that the new

evidence regarding the crime lab could not have been discovered with due diligence or that

the new evidence clearly and convincingly establishes his innocence.” Id. at 292.

Accordingly, the district court did not abuse its discretion by concluding that the newly-

discovered-evidence exception does not apply.

The Interests-of-Justice Exception

         “[A district] court may hear an untimely petition for postconviction relief if ‘the

petitioner establishes to the satisfaction of the court that the petition is not frivolous and is

in the interests of justice.’” Id. at 292 (quoting Minn. Stat. § 590.01, subd. 4(b)(5) (2012)).

The interests-of-justice exception applies in exceptional cases where a claim has

substantive merit and the petitioner has not deliberately and inexcusably failed to raise the

issue on direct appeal. Id. Courts also consider the degree to which each party is at fault

for the alleged error, whether a fundamental unfairness to the defendant needs to be

addressed, and if relief is necessary to protect the integrity of judicial proceedings.2 Id.


2
    This list of factors is non-exclusive. Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010).

                                                8
       This court in Roberts determined that the interests-of-justice exception had not been

met under nearly identical circumstances and noted that the appellant had not made a

showing of fundamental unfairness. 856 N.W.2d at 293. This court observed:

              We recognize that the information regarding the crime lab
              could have influenced Roberts's decision to waive his right to
              a trial and plead guilty. But it is not fundamentally unfair to
              hold Roberts accountable for his choice to accept the state's
              scientific evidence at face value and resolve his case with a
              guilty plea in exchange for a reduced sentence.

Id. Although Castillo stipulated to the state’s evidence in a Lothenbach proceeding, the

same reasoning applies. Castillo argues that his petition has substantive merit based on

newly discovered evidence, a Brady violation, a due-process violation, and ineffective

assistance of counsel. By stipulating to the state’s evidence in a Lothenbach proceeding,

however, Castillo waived his evidentiary and procedural challenges. In addition, this court

considered identical arguments in Roberts and found them to be meritless. Because

Roberts controls here, we conclude that the district court did not abuse its discretion in

denying Castillo’s petition for postconviction relief without a hearing.3

       Affirmed.




3
  Although petitioners are generally entitled to an evidentiary hearing, a district court may
summarily deny a petition when the petition, files, and records conclusively show that the
petitioner is not entitled to relief. Minn. Stat. § 590.04, subd. 1 (2012). A request for an
evidentiary hearing is reviewed for an abuse of discretion. Riley, 819 N.W.2d at 167.
Because the record conclusively shows that Castillo is not entitled to postconviction relief,
the district court did not abuse its discretion by denying his request for an evidentiary
hearing. See Powers v. State, 695 N.W.2d 371, 374-75 (Minn. 2005).

                                             9
