                           This opinion will be unpublished and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
                                       A15-1192

                              Michael Diori Tillman, petitioner,
                                        Appellant,

                                              vs.

                                     State of Minnesota,
                                        Respondent.

                                     Filed May 16, 2016
                                          Affirmed
                                       Hooten, Judge

                                Ramsey County District Court
                                  File No. 62-CR-09-17440

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

Lori 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 Hooten, Presiding Judge; Larkin, Judge; and Rodenberg,

Judge.

                          UNPUBLISHED OPINION

HOOTEN, Judge

         Appellant challenges the denial of his petition for postconviction relief without an

evidentiary hearing on the basis that the petition was time-barred, arguing that his petition
was timely under the newly discovered evidence and interests of justice exceptions to the

two-year statute of limitations. We affirm.

                                          FACTS

       On October 27, 2009, St. Paul police approached appellant Michael Diori Tillman

because they believed that he was involved in a drug transaction. Upon conducting a pat

search of Tillman for weapons, a police officer felt a lump in the pocket of Tillman’s pants.

The officer reached into Tillman’s pocket and removed a plastic bag which contained eight

bindles of a substance later determined by the St. Paul Police Department Crime Lab

(SPPDCL) to be cocaine. Tillman was arrested and charged with fifth-degree possession

of a controlled substance. The state later amended the charge to third-degree possession

of a controlled substance.

       A trial was held in August 2010. At trial, Tillman did not challenge the SPPDCL’s

testing procedures or deny that the substance found in his pocket was cocaine; rather, he

challenged the chain of custody and the weight of the drugs because of the presence of a

cutting agent. The jury found Tillman guilty of the amended charge of third-degree

possession of a controlled substance. The district court sentenced Tillman to a stayed

sentence of 24 months and placed him on probation for ten years. Tillman appealed his

conviction on January 14, 2011, and the appeal was dismissed as untimely on June 8, 2011.

After multiple probation violations, Tillman demanded execution of his sentence on

August 23, 2013.

       On July 18, 2014, Tillman filed a petition for postconviction relief based on

evidence of “faulty testing policies, practices, and procedures” at the SPPDCL that was


                                              2
made public in 2012. The state acknowledges the significant deficiencies in the operating

practices of the SPPDCL at the time the drugs found in Tillman’s possession were tested,

and thus the deficiencies themselves do not warrant discussion here. In his petition,

Tillman did not contend that he complied with the two-year statute of limitations governing

petitions for postconviction relief, but sought to invoke two exceptions to the statute of

limitations.   The postconviction court denied Tillman’s petition without holding an

evidentiary hearing, concluding that he could not satisfy either of the exceptions to the

statute of limitations that he invoked in his petition. This appeal followed.

                                      DECISION

                                              I.

       Tillman argues that the postconviction court abused its discretion by determining

that his petition for postconviction relief was time-barred. We review a postconviction

court’s “denial of a petition for postconviction relief without a hearing for an abuse of

discretion.” Chambers v. State, 831 N.W.2d 311, 318 (Minn. 2013). “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.” Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012)

(quotation omitted).

       A person convicted of a crime who claims that the conviction was obtained in

violation of his or her constitutional rights may petition for postconviction relief. Minn.

Stat. § 590.01, subd. 1 (2012). The petitioner must file the petition for postconviction relief

within two years after “an appellate court’s disposition of petitioner’s direct appeal.” Id.,

subd. 4(a)(2) (2012). A petition filed after the two-year limit may be considered if it


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satisfies one of five statutory exceptions. Id., subd. 4(b) (2012). But, any petition invoking

a statutory exception is subject to another limitations provision, which requires that the

petition “be filed within two years of the date the claim arises.” Id., subd. 4(c) (2012). A

claim arises when the petitioner “knew or should have known” that it existed. Sanchez v.

State, 816 N.W.2d 550, 560 (Minn. 2012).

       Accordingly, “[a] postconviction petitioner is not entitled to relief or an evidentiary

hearing on an untimely petition unless he can demonstrate that he satisfies one of the

[statutory] exceptions and . . . that application of the exception is not time-barred.” Roberts

v. State, 856 N.W.2d 287, 290 (Minn. App. 2014) (quotation omitted), review denied

(Minn. Jan. 28, 2015). Tillman argues that the newly discovered evidence and interests of

justice exceptions to the two-year statute of limitations apply to his petition.

Newly Discovered Evidence Exception

       Under the newly discovered evidence exception, a court may hear an untimely

petition for postconviction relief if (1) the petitioner alleges that newly discovered evidence

exists; (2) the evidence “could not have been ascertained by the exercise of due diligence

. . . within the two-year time period for filing a postconviction petition”; (3) the evidence

is not cumulative; (4) the evidence is “not for impeachment purposes”; and (5) the evidence

“establishes by a clear and convincing standard that the petitioner is innocent of the offense

. . . for which the petitioner was convicted.” Minn. Stat. § 590.01, subd. 4(b)(2) (2012).

Under this exception, “the burden of presenting clear and convincing evidence of

innocence is on the petitioner.” Scott v. State, 788 N.W.2d 497, 502 (Minn. 2010). In

rejecting Tillman’s claim that the newly discovered evidence exception applied, the


                                              4
postconviction court reasoned that Tillman could not satisfy the second and fifth

requirements of the newly discovered evidence standard.

       With regard to the second requirement, the district court correctly concluded that

Tillman has not demonstrated that the evidence of the SPPDCL’s deficiencies could not

have been ascertained by the exercise of due diligence by him or his counsel within the

two-year limit for filing a postconviction petition. The state alleged in its initial 2009

complaint that “the suspected cocaine was submitted to the [SPPDCL] where . . .

preliminary presumptive examinations indicated the contents of each bag were positive for

cocaine with a total net weight of 3.52 grams.” The complaint therefore put Tillman on

notice that the state was basing its controlled substance charge on the results of the crime

lab test. Tillman could have challenged the foundational reliability or validity of the test

results, but failed to do so. See Roberts, 856 N.W.2d at 291 (reaching same conclusion on

similar facts).

       Tillman attempts to distinguish Roberts by pointing to the evidence presented in this

case. Specifically, Tillman relies on an affidavit executed by one of the criminal defense

attorneys who first uncovered the problems at the SPPDCL. The attorney states that she

was able to uncover the problems at the SPPDCL because of her specialized training and

suggests that attorneys without such training would have been unlikely to discover the

problems. But, Tillman, like Roberts, has not shown that he or his attorney made any

attempt to investigate the test results or that anyone prevented him or his attorney from

doing so. Because the deficiencies in the crime lab could have been discovered by Tillman

before trial or within two years of the dismissal of his appeal, he has not shown that he


                                             5
could not have ascertained the evidence of the SPPDCL’s deficiencies by the exercise of

due diligence during the two-year time limit.

       With regard to the fifth requirement of the newly discovered evidence exception,

the evidence of the SPPDCL’s deficiencies does not establish by clear and convincing

evidence that Tillman is innocent.      Tillman’s proffered newly discovered evidence

concerns the deficiencies of the SPPDCL, but he does not claim to be innocent or offer any

evidence demonstrating that the substance tested in his case was not cocaine or that the

SPPDCL’s calculation of the weight of the mixture found in his possession was incorrect.

Indeed, Tillman admitted, both when he was interviewed by the police and at trial, that the

substance recovered from his pocket was cocaine. Given his admission to possessing

cocaine and the fact that he does not claim to be innocent, the evidence of the deficiencies

at the SPPDCL does not establish by clear and convincing evidence that Tillman is

innocent of the offense of which he was convicted.

       In sum, Tillman has not met his burden of establishing that the evidence of the

SPPDCL’s deficiencies could not have been discovered with due diligence or that the

evidence clearly and convincingly establishes his innocence. Therefore, the postconviction

court did not abuse its discretion by concluding that Tillman’s petition does not fall under

the newly discovered evidence exception to the two-year statutory filing deadline.




Interests of Justice Exception




                                             6
       Under the interests of justice exception, an untimely postconviction petition may be

considered if “the petition is not frivolous and is in the interests of justice.” Minn. Stat. §

590.01, subd. 4(b)(5) (2012). The interests of justice exception “relate[s] to the reason the

petition was filed after the 2-year time limit . . . , not the substantive claims in the petition.”

Sanchez, 816 N.W.2d at 557. The interests of justice exception applies only “in exceptional

situations.” Gassler v. State, 787 N.W.2d 575, 586 (Minn. 2010). To satisfy the interests

of justice exception, “a claim must have substantive merit and the defendant must not have

deliberately and inexcusably failed to raise the issue on direct appeal.” Id. The Minnesota

Supreme Court has “identified a non-exclusive list of factors to be considered” in

determining whether the interests of justice exception applies, including 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 whether applying the exception is necessary to protect

the integrity of judicial proceedings. Id. at 586–87.

       Here, as in Roberts, the alleged error is the discovery of the deficient testing

practices at the SPPDCL after the resolution of the case. See 856 N.W.2d at 293. As noted

above, Tillman could have challenged the foundational reliability or validity of the test

results, but failed to do so. Like Roberts, Tillman does not argue that his attorney refused

his request to investigate the results or advised him not to challenge the results. See id.

Tillman also does not argue that the state intentionally withheld knowledge of the

deficiencies at the SPPDCL or hindered his investigation into the test results. On this

record, Tillman is at fault for failing to discover the deficiencies at the crime lab before or

during the two-year time limit.


                                                7
       In Roberts, this court concluded that it was not “necessary to act in the interests of

justice to protect the integrity of the judicial proceedings” because the discovery of the

issues at the crime lab after the resolution of the case did “not stem from a flaw in the

judicial process.” Id. As we stated in Roberts, it was “not fundamentally unfair to hold

Roberts accountable for his choice to accept the state’s scientific evidence at face value,”

without further investigating the practices at the SPPDCL. Id. Because Tillman, like

Roberts, has not shown that a flaw in the judicial process prohibited him from investigating

the practices at SPPDCL, he has not satisfied the requirements of the interests of justice

exception.

       In sum, neither the newly discovered evidence exception nor the interests of justice

exception to the statutory time bar are applicable to Tillman’s petition. As Tillman has not

demonstrated that he satisfies one of the statutory exceptions, he is not entitled to an

evidentiary hearing on his untimely petition. See id. at 290. The postconviction court did

not abuse its discretion by denying Tillman’s petition as time-barred.

       Affirmed.




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