                                   STATE OF MINNESOTA

                                    IN SUPREME COURT

                                         A13-0560
                                         A15-0136

Kandiyohi County                                                                 Wright, J.
                                                    Dissenting, Anderson and Lillehaug, JJ.
                                                                  Took no part, Hudson, J.

Thomas Daniel Rhodes,

                      Appellant,

vs.                                                              Filed: February 17, 2016
                                                                Office of Appellate Courts
State of Minnesota,

                      Respondent.

                                   ______________________

David T. Schultz, Jesse D. Mondry, Maslon LLP, Minneapolis, Minnesota; and

Julie Jonas, Marie Wolf, Innocence Project of Minnesota, Saint Louis Park, Minnesota,
for appellant.

Lori Swanson, State Attorney General, Matthew Frank, Assistant Attorney General, Saint
Paul, Minnesota; and

Shane Baker, Kandiyohi County Attorney, Willmar, Minnesota, for respondent.
                            ______________________

                                       SYLLABUS

       The postconviction court did not abuse its discretion by summarily denying

appellant’s third and fourth petitions for postconviction relief because the petitions are

untimely under the postconviction statute of limitations.

       Affirmed.

                                             1
                                      OPINION

WRIGHT, Justice.

       On July 29, 1998, appellant Thomas Daniel Rhodes was convicted of first-degree

premeditated murder, Minn. Stat. § 609.185(a)(1) (2014), and sentenced to mandatory

life imprisonment, Minn. Stat. § 609.185(a); see also Minn. Stat. § 244.05, subd. 4

(1996). This is our fourth review of this case. See Rhodes v. State (Rhodes III), 735

N.W.2d 315 (Minn. 2007); State v. Rhodes (Rhodes II), 657 N.W.2d 823 (Minn. 2003);

State v. Rhodes (Rhodes I), 627 N.W.2d 74 (Minn. 2001). The present appeal arises from

the summary denial of Rhodes’s third and fourth petitions for postconviction relief. The

issue presented in this appeal is whether the postconviction statute of limitations, Minn.

Stat. § 590.01, subd. 4(a) (2014), bars these petitions. We hold that the postconviction

court did not abuse its discretion by summarily denying relief because Rhodes’s petitions

for postconviction relief were untimely under the postconviction statute of limitations.

                                             I.

       On the night of August 2, 1996, Rhodes and his wife took a boat ride on Green

Lake, near Spicer.1 Rhodes returned to shore and told police that his wife accidentally

fell overboard. Approximately 13 hours later, his wife’s body was found floating near

shore. The cause of her death was drowning. Following a police investigation, Rhodes


1
       We limit our discussion of the facts and evidence to those aspects of the case that
are directly relevant to this appeal. More detailed descriptions of the underlying facts and
evidence are set forth in Rhodes I, 627 N.W.2d at 77-81, and Rhodes II, 657 N.W.2d at
828-32.



                                             2
was indicted by a grand jury for first- and second-degree murder. Rhodes pleaded not

guilty and demanded a jury trial.

       At trial, the State argued that Rhodes forced his wife overboard with a blow to the

neck, struck her with the boat multiple times, and subsequently lied to police about the

location of her drowning. Dr. Michael McGee, a medical expert for the State, testified in

relevant part that the victim “received some type of trauma to the outer surface of the skin

in the neck area . . . with enough force to cause breakage of blood vessels.” When asked

if that external neck trauma could “have been done with a hand, in particular a hand used

. . . in the V position,” Dr. McGee replied, “I believe that is possible, yes.” He also

testified that the injuries on both sides of the victim’s face could have been caused by

multiple strikes from the hull of a boat. By contrast, defense expert Dr. Lindsey Thomas

opined that the injuries to both sides of the victim’s face were caused by blood that had

drained into her face from a forehead injury.

       There was disagreement at trial among the experts regarding the drowning

location and, specifically, when the victim’s body could have been expected to resurface

given the lake conditions. Captain William Chandler testified that, if the victim’s body

“had sunk in Minnesota lake water approximately 40 feet deep,” which was the depth of

the drowning location on Green Lake that Rhodes reported to police, it would have taken

“three to four weeks” for the victim’s body to resurface. Captain Chandler testified that,

“starting about 30 feet on down, the bottom temperature of any Minnesota lake year

round is about 39 degrees.”         He explained that this cold temperature slows the

decomposition rate of a drowned body, which lengthens the time period for a body to

                                             3
resurface. Defense expert Dale Morry testified that water temperature varies from lake to

lake depending on the depth of the lake, the size of the lake, and the above-surface

temperature, but “as a ‘rule of thumb’ a person who drowned in 40 feet of water would

resurface in five to eight days.” The testimony from Captain Chandler and defense

expert Morry supported the State’s theory that Rhodes lied about the location of the

drowning, because the victim’s body was found floating near the shore approximately 13

hours after she allegedly fell overboard.

       The jury found Rhodes guilty of first- and second-degree murder. Rhodes filed a

direct appeal, which we stayed to allow him time to file a postconviction petition.

Rhodes I, 627 N.W.2d at 81. In his first postconviction petition, Rhodes asserted an

ineffective-assistance-of-counsel claim, alleging that his trial counsel failed to

sufficiently cross-examine Dr. McGee and object to his testimony, and failed to present

available medical evidence to counter Dr. McGee’s testimony. Rhodes also asserted a

newly-discovered-evidence claim consisting of recent medical articles related to

drowning forensics. Attached to his petition, Rhodes submitted an affidavit from Dr.

John Plunket, a forensic pathologist. Dr. Plunket opined that the internal hemorrhaging

in the victim’s neck probably occurred “during the process of drowning and the struggle

for survival.” Id. at 82. The postconviction court denied the petition without holding an

evidentiary hearing. Id. at 83. Rhodes appealed. In Rhodes I, we consolidated Rhodes’s

direct and postconviction appeals. We rejected Rhodes’s evidentiary challenges, stayed

the consolidated appeal, and remanded to the postconviction court for an evidentiary



                                            4
hearing to determine whether trial counsel’s performance was objectively unreasonable.

Id. at 85-86, 88-89.

       Drs. Wright, McGee, Thomas, and Plunket testified at the evidentiary hearing.

Dr. Ronald Wright testified that the hemorrhaging in the victim’s neck could have been

caused by some kind of pressure to the throat but, equally as likely, could have been

caused during the drowning process. Dr. McGee reaffirmed his trial testimony. And Drs.

Thomas and Plunket testified that based on their review of recent medical articles, they

believed the hemorrhaging in the victim’s neck that occurred during the drowning

process or postmortem was a result of hypostasis or a breaking of rigor mortis. The

postconviction court subsequently denied Rhodes’s request for postconviction relief,

concluding that the trial counsel’s performance was not objectively unreasonable and that

the alleged newly discovered medical evidence did not warrant a new trial. We then

vacated our stay of Rhodes’s consolidated appeal. Rhodes II, 657 N.W.2d at 839.

       In Rhodes II, we held that the evidence was sufficient to support Rhodes’s

conviction. The evidence included witnesses who saw a boat zigzagging and heard

yelling from its occupants; inconsistencies in Rhodes’s statements; physical evidence that

the victim’s body could not have sunk at the location marked by Rhodes and resurfaced

in 13 hours; the discovery of the victim’s body nine-tenths of a mile from that location

marked by Rhodes; motive evidence including life insurance proceeds, household debt,

and Rhodes’s extramarital affair; and medical testimony that the victim’s head injuries

were consistent with multiple strikes by a boat and her neck injuries were caused by

external pressure. See Rhodes II, 657 N.W.2d at 829-32, 839-42.

                                            5
       Our decision in Rhodes II also affirmed the denial of Rhodes’s first postconviction

petition. 657 N.W.2d at 846. We held that the performance by Rhodes’s trial counsel

was not objectively unreasonable. Id. at 843. We also concluded that even if the new

medical literature offered by Rhodes “present[ed] ground-breaking research,” id. at 846,

it failed to satisfy the fourth prong of the Rainer newly-discovered-evidence test, which

requires a showing that the newly discovered evidence “will probably produce either an

acquittal at a retrial or a result more favorable to the petitioner.” Id. at 845 (quoting Race

v. State, 417 N.W.2d 264, 266 (Minn. 1987)); see Rainer v. State, 566 N.W.2d 692, 695

(Minn. 1997). On this point, we concluded:

       This allegedly newly available medical evidence does not diminish the
       circumstantial evidence heard and considered by the jury. There was
       sufficient evidence independent of the medical evidence, including physical
       and motive evidence, testimony as to Rhodes’ conduct, and inconsistencies
       in Rhodes’ statements, to conclude that [the victim’s] death was a
       premeditated homicide. . . . Rhodes has not established . . . that [this
       evidence] would probably produce an acquittal or a result more favorable to
       him on retrial.

Id. at 846 (emphasis added). Consequently, we held that “the postconviction court did

not abuse its discretion in concluding that Rhodes is not entitled to a new trial on the

grounds of newly discovered medical evidence.” Id.

       Three years after his direct appeal was final, Rhodes filed his second petition for

postconviction relief. This petition alleged in part that he was entitled to a new trial

based on newly discovered evidence of lake conditions that purportedly explained why

his wife’s body was found almost nine-tenths of a mile from where he told searchers that

he had last seen her. The postconviction court summarily denied the second petition, and


                                              6
we affirmed its decision. Rhodes III, 735 N.W.2d 315, 319 (Minn. 2007). In doing so,

we explained that “Rhodes ha[d] not shown that the information about the ‘uneven

bottom’ of the lake was not available to him or his counsel during his trial or that his

failure to learn of it before trial was not due to a lack of diligence.” Id.

       In 2007, shortly after we released our decision in Rhodes III, the 2-year statute of

limitations for Rhodes to petition for postconviction relief expired. See Minn. Stat.

§ 590.01, subd. 4(a) (2014) (“No petition for postconviction relief may be 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.”); Act of June 2, 2005, ch. 136, art 14, § 13, 2005 Minn. Laws 901, 1098

(providing that if a person’s conviction became final before the statute’s effective date of

August 1, 2005, that person has 2 years from that effective date to file a postconviction

petition).2

       On November 27, 2012, more than 5 years after the limitations period had expired,

Rhodes filed his third petition for postconviction relief. This petition alleged newly

discovered evidence gathered by a private investigator and submitted to Rhodes 3 years


2
        The Legislature enacted this statute of limitations in response to a dramatic
increase in the number of postconviction petitions, many of which involved old claims
brought years after a conviction was affirmed on direct appeal. See Hearing on H.F.
2630, H. Judiciary Policy & Fin. Comm., 83d Minn. Leg., Mar. 10, 2004 (audio tape).
Minnesota’s 2-year statute of limitations is twice as long as the 1-year statute of
limitations for bringing federal habeas corpus claims. See 28 U.S.C. § 2244(d)(1) (2012)
(“A 1-year period of limitations shall apply to an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court.”).



                                               7
before in a report dated September 29, 2009. The report contained (1) maps of Green

Lake and GPS/Sonar data; (2) general descriptions of the effects of carbon monoxide

poisoning; (3) witness statements regarding the manner in which Rhodes returned to

shore; and (4) witness statements regarding the victim’s head injuries. Rhodes received a

supplemental one-page report from the private investigator on October 19, 2010. As part

of his third petition, Rhodes also alleged that the State committed discovery violations by

failing to disclose some of the evidence presented in the private investigator’s reports.

The postconviction court summarily denied the third petition based on the dates of these

reports, concluding that Rhodes’s claims were untimely because they “arose” more than 2

years before the petition’s filing date of November 27, 2012. See Minn. Stat. § 590.01,

subd. 4(c). The postconviction court also concluded that the claims in Rhodes’s third

petition failed on their merits. Rhodes appealed the summary denial of his third petition.

We stayed the appeal to allow Rhodes to file yet another postconviction petition.

       On March 21, 2014, almost 7 years after the statute of limitations had expired,

Rhodes filed his fourth postconviction petition, which alleged two claims that are

relevant here.3 First, Rhodes alleges a newly-discovered-evidence claim, primarily based

on scientific literature addressing drowning forensics and reports from experts applying

that literature to this case. The scientific literature addresses the causes of injuries and


3
       Although Rhodes raised an ineffective-assistance-of-counsel claim in his fourth
petition, he failed to address it in his brief to this court. As a result, that issue is forfeited.
Powers v. State, 688 N.W.2d 559, 560 n.1 (Minn. 2004). Moreover, the same issue was
raised and decided in Rhodes II, 657 N.W.2d at 843.



                                                8
bodily changes in drowning cases, including neck hemorrhaging, postmortem lividity

(gravity-dependent pooling of blood), body buoyancy, travel abrasions (injuries caused

by scraping the lake bed or shore), and animal predation.4 Rhodes relies most heavily on

two scientific articles related to neck hemorrhaging, referred to here as Pollanen (2009)

and Alexander & Jentzen (2011),5 which allegedly establish changed scientific

knowledge on the causes of neck hemorrhaging in drowning cases. Pollanen (2009)

concluded that, when a dead body is angled downwards (a “head down position”),

hemorrhagic lividity of the soft tissue of the neck (extravascular rupture and leakage of

blood vessels due to gravitational pressure after death) may occur, causing “pseudo

bruises” that may lead to “misidentification of violent neck injury.” Alexander & Jentzen

(2011), a case study of a single drowned body, concluded that hemorrhaging in the

anterior neck muscles can be explained by elevated venous pressure and the rupture of

congested blood vessels caused by reactions during drowning, such as coughing, gagging,

4
        We address the evidence presented in the fourth petition related to body buoyancy,
travel abrasions, and animal predation only to conclude that the postconviction court did
not abuse its discretion when it determined that this evidence was either cumulative or
Knaffla-barred because it was presented at trial, in previous postconviction proceedings,
or on Rhodes’s direct appeal. Rhodes II, 657 N.W.2d at 832-35; see Minn. Stat.
§ 590.01, subd. 4(b)(2) (requiring that newly discovered evidence be “not cumulative to
evidence presented at trial”); Leake v. State, 737 N.W.2d 531, 535 (Minn. 2007)
(providing that if a claim was “raised,” “known,” or “should have been known” on direct
appeal, that claim “will not be considered in a subsequent petition for postconviction
relief” (citing State v. Knaffla, 309 Minn. 246, 243 N.W.2d 737 (1976))).
5
       Russell T. Alexander & Jeffrey M. Jentzen, Neck and Scleral Hemorrhage in
Drowning, 56 J. Forensic Sci. 522 (Mar. 2011) [hereinafter Alexander & Jentzen (2011)];
Michael S. Pollanen, et al., Hemorrhagic Lividity of the Neck: Controlled Induction of
Postmortem Hypostatic Hemorrhages, 30 Am. J. Forensic Med. & Pathology 322 (Dec.
2009) [hereinafter Pollanen (2009)].


                                            9
vomiting, and abdominal contractions. According to Dr. Jentzen’s affidavit, Alexander

& Jentzen (2011) disproved the scientific community’s earlier belief that hemorrhages in

the anterior neck muscles “do not occur in drowning and should always raise the

suspicion of foul play.” After reviewing Dr. McGee’s autopsy report, Dr. Jentzen opined

that “the hemorrhage in [the victim’s] neck could have occurred during the drowning

process or postmortem, as opposed to pre-mortem external pressure.” (Emphasis added.)

       After reviewing Pollanen (2009), Alexander & Jentzen (2011), and the expert

affidavits offered by Rhodes, Dr. McGee signed an affidavit, dated July 2, 2014, stating

that he still believed “the opinions and conclusions in the testimony I provided at trial and

postconviction evidentiary hearing were correct as related to the death of [the victim].”

Dr. McGee asserted that, unlike the hemorrhaging in the victim’s neck, the hemorrhaging

described in the Alexander & Jentzen study was “confined to the fascial surfaces of the

muscle.” Moreover, Dr. McGee asserted that Rhodes’s experts had looked at each of his

“findings in isolation and misinterpreted both the nature and cause of each finding.”

       Second, Rhodes alleges a false-testimony claim based on a 2006 lake survey

report conducted by the Minnesota Department of Natural Resources (DNR). This DNR

report allegedly establishes that the State’s witness, Captain Chandler, testified

incorrectly at trial regarding the temperature of Green Lake on the night of the drowning.

According to the DNR report, the temperature of Green Lake in August 1996, at a depth

of 40 feet, was 68.9 degrees, whereas Captain Chandler testified that the lake temperature

at that depth was 39 degrees. Although the State concedes the lake’s higher temperature

would have reduced the resurfacing time of the victim’s body from 4 weeks to 1 week, it

                                             10
contends that this evidence is immaterial because it would not have impacted the State’s

theory of the case. At trial, the State argued that Rhodes lied about the location of the

drowning because Captain Chandler and defense expert Morry both agreed that, if the

drowning had occurred at the location indicated by Rhodes, the victim’s body would not

have resurfaced 13 hours later.     Consequently, the State contends that, even if the

resurface time at the location indicated by Rhodes was only 1 week, the victim plainly

did not drown at that location because her body resurfaced 13 hours later.

      The postconviction court summarily denied the fourth petition, concluding that

Rhodes failed to satisfy the newly-discovered-evidence exception to the statute of

limitations. Minn. Stat. § 590.01, subd. 4(b)(2) (2014). This exception allows a court to

hear an untimely petition for postconviction relief when

      the petitioner alleges the existence of newly discovered evidence, including
      scientific evidence, that could not have been ascertained by the exercise of
      due diligence by the petitioner or petitioner’s attorney within the two-year
      time period for filing a postconviction petition, and the evidence is not
      cumulative to evidence presented at trial, is not for impeachment purposes,
      and establishes by a clear and convincing standard that the petitioner is
      innocent of the offense or offenses for which the petitioner was convicted.

Id. The postconviction court explained that, “even if the Court were to accept as true

everything contained within the recent scientific literature cited by [Rhodes] and the

opinions offered by [Rhodes’s] forensic pathologists,” the proffered evidence did “not

prove by clear and convincing evidence that [Rhodes] is innocent.” Rather, the literature

and expert opinions simply support the general proposition that the victim’s injuries “may

have been caused by . . . the natural drowning process.” (Emphasis added.)



                                            11
       Regarding the DNR report on the water temperature of Green Lake, the

postconviction court concluded that Rhodes failed to satisfy the “due diligence”

requirement of the newly-discovered-evidence exception, Minn. Stat. § 590.01, subd.

4(b)(2). The court found that, because the DNR report was published in 2006 and the

data in the report was publicly available as early as 1997, the report could have been

discovered with due diligence before the 2-year statute of limitations expired in 2007.

The postconviction court concluded, alternatively, that the water-temperature claim failed

on its merits for two reasons. First, the State filed a posttrial affidavit in which Captain

Chandler opined that, regardless of whether the water temperature at 40 feet was 39

degrees (several weeks to resurface) or 68.9 degrees (approximately one week to

resurface), the victim’s body could not have resurfaced within 13 hours if she had

drowned at the location marked by Rhodes. Second, defense expert Morry testified at

trial that if an individual drowns in 40 feet of water, it would take at least 5 days for the

drowned body to resurface. The postconviction court concluded, therefore, that even if

Captain Chandler had not testified to an incorrect water temperature, the outcome of the

trial would have been the same because the jury would have heard testimony from both

the State and the defense that the minimum resurfacing time at 40 feet is at least 5 days,

which is far longer than the actual 13-hour resurfacing time of the victim.

       Rhodes appealed the denial of his fourth postconviction petition. We vacated our

stay of the appeal of his third postconviction petition, and this consolidated appeal

followed.



                                             12
                                            II.

      We review a denial of a petition for postconviction relief, as well as the denial of

an evidentiary hearing, for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167

(Minn. 2012).    A postconviction court does not abuse its discretion unless 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.” Brown v. State,

863 N.W.2d 781, 786 (Minn. 2015).          We review the postconviction court’s legal

conclusions de novo and its findings of fact for clear error. Greer v. State, 836 N.W.2d

520, 522 (Minn. 2013).

      An evidentiary hearing on a petition is required when there are material facts in

dispute that were not resolved at trial and must be resolved to rule on the merits of the

issues raised. Riley, 819 N.W.2d at 167. The legal standard required to obtain an

evidentiary hearing “is lower than that required for a new trial.”     Bobo v. State, 820

N.W.2d 511, 516 (Minn. 2012). Any doubts about whether to conduct an evidentiary

hearing are resolved in favor of the petitioner. Id. But a postconviction evidentiary

hearing is not required when the petitioner alleges facts that, if true, are legally

insufficient to grant the requested relief. Id.; see also Minn. Stat. § 590.04, subd. 1

(directing a court to 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”).

Accordingly, a postconviction court may summarily deny an untimely claim. Minn. Stat.

§ 590.01, subd. 4 (2014); Colbert v. State, 870 N.W.2d 616, 622 (Minn. 2015).



                                            13
                                             III.

       We first address Rhodes’s third postconviction petition.          Here, we consider

whether the postconviction court abused its discretion by determining that the third

petition was untimely under Minn. Stat. § 590.01, subd. 4. Although there are five

exceptions to the statute of limitations, Minn. Stat. § 590.01, subd. 4(b), a petitioner has a

limited period of time in which to invoke these exceptions. “Any petition invoking an

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

(emphasis added). A claim arises under subdivision 4(c) when “the petitioner knew or

should have known that he had a claim.” Sanchez v. State, 816 N.W.2d 550, 560 (Minn.

2012). When a petition for postconviction relief is filed more than 2 years after the claim

arose under subdivision 4(c), a postconviction court does not abuse its discretion when it

summarily denies the petition. Greer, 836 N.W.2d at 523; Wayne v. State, 832 N.W.2d

831, 834 (Minn. 2013); McDonough v. State, 827 N.W.2d 423, 427 (Minn. 2013);

Colbert, 811 N.W.2d at 105-06.

       Rhodes filed his third petition for postconviction relief on November 27, 2012.

His claim under the newly-discovered-evidence exception, Minn. Stat. § 590.01, subd.

4(b), was based on two reports, dated September 29, 2009 and October 19, 2010,

respectively, which Rhodes received from a private investigator. The dates of the reports

conclusively establish that Rhodes “knew or should have known” of the claims raised in

his third petition more than 2 years before he filed his third postconviction petition. See

Sanchez, 816 N.W.2d at 560. The postconviction court, therefore, did not abuse its



                                             14
discretion by determining that Rhodes’s third petition was untimely under subdivision

4(c).

                                             IV.

        Turning to Rhodes’s fourth postconviction petition, the issue presented is whether

the postconviction court abused its discretion when it determined that this petition was

untimely under the postconviction statute of limitations.

        It is undisputed that Rhodes filed his fourth postconviction petition nearly 7 years

after the expiration of the postconviction statute of limitations.6 Consequently, he is not

entitled to relief unless he can establish one of the five exceptions set forth in Minn. Stat.

§ 590.01, subd. 4(b).     Rhodes relies exclusively on the newly-discovered-evidence

exception.7 To establish that this exception applies, Rhodes must allege

        newly discovered evidence, including scientific evidence, that could not
        have been ascertained by the exercise of due diligence by petitioner or
        petitioner’s attorney within the two-year time period for filing a
        postconviction petition, and the evidence is not cumulative to evidence
        presented at trial, is not for impeachment purposes, and establishes by a
        clear and convincing standard that the petitioner is innocent of the offense
        or offenses for which the petitioner was convicted.




6
       Because Rhodes’s conviction became final before August 1, 2005, the effective
date of the statute of limitations, Rhodes had two years after that effective date to file a
postconviction petition. Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws
901, 1098. Rhodes filed his fourth petition on March 21, 2014.
7
        Rhodes’s petition also raised the “interests of justice” exception, Minn. Stat.
§ 590.01, subd. 4(b)(5), but this issue is forfeited because it was not argued in Rhodes’s
brief to this court. Wayne v. State, 860 N.W.2d 702, 704 & n.2 (Minn. 2015).



                                             15
Minn. Stat. § 590.01, subd. 4(b)(2) (emphasis added).          The clear-and-convincing-

innocence requirement in subdivision 4(b)(2) is more stringent than the newly-

discovered-evidence test that applies to timely petitions, which we applied in rejecting

Rhodes’s similar claim of newly discovered medical evidence in Rhodes II, 657 N.W.2d

at 845-46.     The innocence prong that we apply here requires more than mere

“uncertainty” about a petitioner’s guilt. Brown v. State, 863 N.W.2d 781, 787 (Minn.

2015).     Under the clear and convincing standard, the proffered evidence must be

unequivocal, intrinsically probable, and free from frailties. Gassler v. State, 787 N.W.2d

575, 583 (Minn. 2010).

         We conclude that, even if the scientific evidence alleged in Rhodes’s fourth

petition were proven to be true at an evidentiary hearing, it would not satisfy the

innocence prong of the newly-discovered-evidence exception.8         This is because the

scientific evidence does not establish “by a clear and convincing standard that [Rhodes]

is innocent.”9 Minn. Stat. § 590.01, subd. 4(b)(2). Rhodes’s fourth petition relies heavily


8
       Although our analysis focuses on Rhodes’s failure to satisfy the innocence prong,
we observe that the affidavits of Rhodes’s experts are being offered to impeach Dr.
McGee’s trial testimony. To satisfy the newly-discovered-evidence exception, however,
the new evidence must not be offered “for impeachment purposes.” Minn. Stat. § 590.01,
subd. 4(b)(2). Moreover, we have held that “generally, expert testimony does not
constitute newly discovered evidence justifying a new trial” because “if discovery of a
tenth expert is new evidence warranting a new trial, no verdict would ever be final.”
State v. Blasus, 445 N.W.2d 535, 543 (Minn. 1989).
9
       Rhodes also argues that the publication date of the scientific literature is not the
date his claim “arises” under Minn. Stat. § 590.01, subd. 4(c), because, he contends, for
“shifted science,” the publication date of an article does not determine the date on which
science changed. This is so, he maintains, because scientific knowledge evolves
                                                        (Footnote continued on next page.)

                                            16
on Pollanen (2009) and Alexander & Jentzen (2011), which he alleges establish changed

scientific knowledge on the causes of neck hemorrhaging in drowning cases since he was

convicted. Pollanen (2009) concluded that, in cases in which a dead body rests in a

downward angle, or a “head down position,” hemorrhagic lividity of the soft tissue of the

neck may cause “pseudo bruises” that result in a “misidentification of violent neck

injury.” Alexander & Jentzen (2011) concluded that hemorrhaging in the anterior neck

muscles can be explained by elevated venous pressure caused by drowning-related bodily

reactions. According to Dr. Jentzen’s affidavit, Alexander & Jentzen (2011) disproved

the scientific community’s earlier belief that hemorrhages in the anterior neck muscles

“do not occur in drowning and should always raise the suspicion of foul play.”

      This scientific evidence, however, does not establish that Dr. McGee’s trial

testimony was incorrect. Dr. McGee did not testify that neck hemorrhages never occur

naturally during the drowning process. Rather, he testified that he believed the victim

“received some type of trauma to the outer surface of the skin in the neck area . . . with

enough force to cause breakage of blood vessels.” When asked whether that external

neck trauma could “have been done with a hand, in particular a hand used . . . in the V

position,” Dr. McGee replied, “I believe that is possible, yes.” After reviewing Dr.


(Footnote continued from previous page.)
“gradually” through multiple experts and articles in the community. With this argument,
Rhodes invites us to adopt a novel “shifted science” rule, in which the accrual date under
subdivision 4(c) depends on the date that new scientific knowledge becomes generally
accepted. We decline to address the merits of this proposed “shifted science” rule
because, even if subdivision 4(c) were satisfied, Rhodes’s petition still would be legally
insufficient to meet the innocence requirement under Minn. Stat. § 590.01, subd. 4(b)(2).


                                           17
McGee’s autopsy report, Dr. Jentzen did not opine that the victim’s neck injuries were

caused by the drowning process.        Instead, he opined that “the hemorrhage in [the

victim’s] neck could have occurred during the drowning process or postmortem, as

opposed to pre-mortem external pressure.” (Emphasis added.) The opinion of another

expert hired by Rhodes to support his petition, Dr. Rao, included similar equivocation.

She stated: “Recent scientific literature supports my conclusion that the hemorrhages in

[the victim’s] neck could be attributable to something other than external pressure.”10

(Emphasis added.) Thus, even if this scientific theory were proven at a hearing, it would

not establish by clear and convincing evidence that Rhodes is innocent. Put differently,

that the victim’s internal neck hemorrhages “could” have been caused by natural

drowning processes does not unequivocally establish that Rhodes did not kill his wife.

The alleged scientific evidence is thus legally insufficient to entitle Rhodes to relief under




10
       Other experts hired by Rhodes were somewhat less equivocal in their application
of this science (Alexander & Jentzen 2011; Pollanen 2009) to the victim’s neck
hemorrhages. Dr. Bruce Hyma stated that neck hemorrhages “can occur” during the
drowning process and that “[t]he hemorrhages in the neck do not appear to have been
caused by external pressure.” Dr. Carl Wigren stated that the victim’s neck hemorrhages
were “likely explained” by the processes proposed by Alexander & Jentzen (2011) and
Pollanen (2009) and that the type of hemorrhage in the victim’s neck is “not associated
with blunt force injury.” Even if we consider these opinions as true, and if we assume
that they are not merely impeaching of Dr. McGee’s trial testimony, see Minn. Stat.
§ 590.01, subd. 4(b)(2), they still would not alter our conclusion that Rhodes cannot
establish the innocence prong because there is sufficient nonscientific evidence
supporting Rhodes’s guilt, see Rhodes II, 657 N.W.2d at 846, as discussed below.



                                             18
the newly-discovered-evidence exception.11 The innocence prong of subdivision 4(b)(2)

requires “more than uncertainty” about Rhodes’s guilt. Brown, 863 N.W.2d at 787.

      Finally, even if we assume that the alleged scientific evidence fully refutes

Dr. McGee’s medical testimony, that assumption is legally insufficient to establish the

innocence prong because, as we held in Rhodes II, Rhodes’s murder conviction is

independently supported by nonmedical (i.e., nonscientific) evidence. 657 N.W.2d at

846. In Rhodes II, we assumed that the newly discovered medical evidence was “based

on ground-breaking research.” Id. And we held that, even under the less stringent Rainer

test, Rhodes was not entitled to relief based on the newly discovered medical evidence,

including literature on “hemorrhage in the neck and other postmortem changes in

drowning cases” because “sufficient evidence independent of the medical evidence”

supported Rhodes’s conviction.      Id. (emphasis added).     The nonmedical evidence

included “physical and motive evidence, testimony as to Rhodes’ conduct, and

inconsistencies in Rhodes’ statements.” Id. Our legal determinations in Rhodes II apply




11
       This is true even under the legal standard articulated by the dissent, which simply
requires a defendant to prove by clear and convincing evidence that “no reasonable jury
would have found proof of guilt beyond a reasonable doubt.” Infra at D.2. That the
victim’s neck hemorrhages “could” have been caused by natural drowning processes does
not preclude a reasonable jury from considering the totality of the evidence presented and
finding proof of guilt beyond a reasonable doubt. Unlike the dissent’s hypothetical DNA
evidence, infra at D-10, the fact that the victim’s internal neck hemorrhages “could” have
been caused by the natural drowning process does not meet the dissent’s hypothetical
“99.99% probability” that Rhodes did not kill his wife.



                                           19
with equal force here.12 Even if Rhodes presented groundbreaking scientific conclusions

on the causes of the victim’s neck injuries, and even if Dr. McGee’s testimony were

erroneous under present science, this could not overcome our legal determination in

Rhodes II that Rhodes’s conviction was independently supported by nonscientific

evidence. Cf. Gassler v. State, 787 N.W.2d 575, 583 (Minn. 2010) (holding that despite

the admission of unreliable ballistics science, the petitioner was not entitled to relief

because other evidence supported his conviction). Because the evidence proffered by

Rhodes, even if true, conclusively fails to establish the innocence prong under Minn. Stat.

§ 590.01, subd. 4(b)(2), the postconviction court did not abuse its discretion by

summarily denying Rhodes’s claim of newly discovered scientific evidence.

       The dissent contends that the factual dispute between Dr. McGee and Rhodes’s

experts is “material,” and therefore an evidentiary hearing is required. To support this

contention, the dissent relies on the fact that, at Rhodes’s postconviction hearing in 2001,

one expert opined that Dr. McGee’s medical testimony was “the most paramount of the

entire trial.” Infra at D-4 n.2. However, we rejected implicitly any assertion that Dr.


12
       The dissent contends that we must reassess the nonmedical evidence because
Rhodes has offered purportedly new and compelling scientific evidence. Infra at D-11.
We disagree. There has been no change in the nonmedical facts, including the fact that
the victim could not have drowned at the location identified by Rhodes because her body
resurfaced 13 hours later. In Rhodes II, we removed Dr. McGee’s testimony from the
analytical equation and still concluded that there was sufficient evidence to find that the
victim’s death was a premeditated homicide. Even if we assume that there are now more
compelling reasons to remove Dr. McGee’s testimony from the equation, that does not
change Rhodes II’s conclusion that the nonmedical facts independently support the jury’s
finding that the victim’s death was a premeditated homicide.



                                            20
McGee’s testimony was “paramount to the entire trial” in Rhodes II, when we held that

independent of Dr. McGee’s medical testimony, the nonmedical evidence supports the

jury’s finding that the victim’s death was a premeditated homicide. 657 N.W.2d at 846.

The dissent’s attempt to rewrite Rhodes II is unavailing. This is especially so when, as

here, the dissent relies on the opinion of a defense expert that predates our decision in

Rhodes II. Despite the dissent’s assertion to the contrary, any factual dispute between Dr.

McGee’s testimony and the scientific literature and expert opinions proffered in support

of Rhodes’s fourth petition is not “material.” This is because, as we held in Rhodes II, a

reasonable jury could rely solely on the nonmedical evidence and find beyond a

reasonable doubt that Rhodes committed a premeditated homicide.13

       Apart from scientific literature, Rhodes also presents a Minnesota DNR report that

establishes that the temperature of Green Lake in August 1996, at a depth of 40 feet, was

about 68.9 degrees Fahrenheit, rather than 39 degrees as Captain Chandler testified. The

postconviction court concluded that the production of the DNR report failed to satisfy the

“due diligence” requirement of the newly-discovered-evidence exception, Minn. Stat.

13
       The dissent also contends that a remand for an evidentiary hearing is required
because the postconviction court applied the wrong legal standard for granting an
evidentiary hearing. Infra at D-7. In its order, the postconviction court stated, “In light
of the contradicting testimony presented by equally qualified forensic pathologists, the
Court cannot conclude that the scientific literature and expert opinions offered by
[Rhodes] (even if true) make it highly probable that [Rhodes] is innocent.” This
statement, the dissent contends, demonstrates that the postconviction court failed to
consider the facts alleged in the petition in a light most favorable to the petition. Riley,
819 N.W.2d at 167. However, a remand for an evidentiary hearing is not warranted. As
we conclude above, any factual dispute between Dr. McGee and Rhodes’s experts is not
“material” because, as we held in Rhodes II, 657 N.W.2d at 846, a reasonable jury could
find Rhodes guilty of premeditated homicide based solely on the nonmedical evidence.


                                            21
§ 590.01, subd. 4(b)(2). The postconviction court determined that this report, which

included data available as early as 1997, could have been discovered with due diligence

before the 2-year postconviction statute of limitations expired in 2007, because the report

was published in 2006. The postconviction court alternatively concluded that the water-

temperature claim failed on its merits because the victim’s body would not have

resurfaced within 13 hours, even if the water temperature was 68.9 degrees at a depth of

40 feet.

       Because the DNR report is legally insufficient to establish the innocence prong of

Minn. Stat. § 590.01, subd. 4(b)(2), we need not decide whether the due diligence

requirement is satisfied. Even if Captain Chandler had provided incorrect testimony on

water temperatures and a 3-to-4 week resurfacing time, the jury still heard defense expert

Morry’s testimony that a drowned body at a 40-foot depth takes at least 5 days to

resurface. Moreover, Captain Chandler filed a posttrial affidavit stating that, even in light

of the 68.9-degree temperature from the DNR report, it “still would have taken

approximately one week for [the victim’s] body to refloat” from a 40-foot depth. Rhodes

has not offered any evidence that defense expert Morry has changed his opinion on a 5-

day minimum resurfacing period based on the warmer temperatures included in the DNR

report. Therefore, even if an evidentiary hearing were held, the State’s theory that

Rhodes lied about the drowning location—that he saw the victim fall overboard at a 40-

foot depth—would remain unaffected because there is no evidence that a 13-hour

resurfacing time is possible from that depth, regardless of the water temperature. In sum,

Rhodes has not raised a material factual dispute that would establish his innocence under

                                             22
a clear and convincing standard. Accordingly, the DNR report is legally insufficient to

entitle Rhodes to postconviction relief or an evidentiary hearing.

                                             V.

       The record conclusively establishes that Rhodes knew or should have known of

the claims raised in his third postconviction petition before November 27, 2010 (2 years

before he filed his third postconviction petition). Therefore, his third petition is untimely

under the 2-year statute of limitations provided by Minn. Stat. § 590.01, subd. 4(c). Also,

even if the alleged evidence in support of his fourth postconviction petition were proven

to be true at an evidentiary hearing, this evidence would fail to establish by a clear and

convincing standard that Rhodes is innocent. Therefore, his fourth petition is untimely

under the newly-discovered-evidence exception, Minn. Stat. § 590.01, subd. 4(b)(2).

Accordingly, we affirm the postconviction court’s denial of Rhodes’s third and fourth

petitions as untimely under the postconviction statute of limitations.

       Affirmed.



       HUDSON, J., not having been a member of this court at the time of submission,

took no part in the consideration or decision of this case.




                                             23
                                       DISSENT

ANDERSON, Justice (dissenting).

       I join in Part III of the court’s opinion, which affirms the postconviction court’s

summary denial of Rhodes’s third petition for postconviction relief. But I disagree with

the court’s decision in Part IV, which affirms the summary denial of Rhodes’s fourth

petition. The postconviction court abused its discretion by summarily denying the fourth

petition because this petition raises material fact questions, in an entirely circumstantial

case, that must be resolved at an evidentiary hearing. Contrary to the court’s conclusion,

Rhodes’s fourth petition is legally sufficient to establish the “innocence” prong to

overcome the 2-year statute of limitations, Minn. Stat. § 590.01, subd. 4(b)(2) (2014).

More specifically, Rhodes has alleged the existence of evidence that, if true and

considered in the light most favorable to the petition, would establish by a clear and

convincing standard that no reasonable jury would have convicted Rhodes had the newly

discovered evidence been presented at trial.         Therefore, I would remand for an

evidentiary hearing. I respectfully dissent.

                                               I.

       Under the postconviction statute, Minn. Stat. § 590.04, subd. 1 (2014), a

postconviction court “shall” promptly grant an evidentiary hearing on a petition for

postconviction relief unless “the petition and the files and records of the proceeding

conclusively show that the petitioner is entitled to no relief.” (Emphasis added.) To

determine whether an evidentiary hearing is required, the postconviction court must

assume the facts alleged in the petition to be true, Bobo v. State, 820 N.W.2d 511, 516

                                               D-1
(Minn. 2012), and consider those facts in the light most favorable to the petition, Riley v.

State, 819 N.W.2d 162, 167 (Minn. 2012). The postconviction court “must grant the

evidentiary hearing whenever material facts are in dispute.” Wilson v. State, 726 N.W.2d

103, 107 (Minn. 2007). “Any doubts about whether to conduct an evidentiary hearing

should be resolved in favor of [the petitioner].” Bobo, 820 N.W.2d at 516 (emphasis

added). And an evidentiary hearing is “particularly important when the petition ‘attacks’

important evidence in a circumstantial case.” Wilson, 726 N.W.2d at 107 (emphasis

added) (citing Opsahl v. State, 677 N.W.2d 414, 423 (Minn. 2004)). This is a wholly

circumstantial case. State v. Rhodes (Rhodes II), 657 N.W.2d 823, 827 (2003) (stating

that “the evidence in this case is wholly circumstantial”).

         The court holds that Rhodes’s fourth petition fails to establish the “innocence”

prong under the newly-discovered-evidence exception to the postconviction statute of

limitations. Minn. Stat. § 590.01, subd. 4(b)(2). The innocence prong requires Rhodes to

allege the existence of evidence that, if true, would establish by a clear and convincing

standard that Rhodes is innocent. See id.; Miles v. State, 800 N.W.2d 778, 783 (Minn.

2011).     But the court does not discuss our recent precedent on the meaning and

application of this innocence prong. Contrary to the approach suggested by the court, the

word “innocent” in this statute requires neither a complete contradiction of incriminating

evidence at trial nor a showing that the petitioner certainly or “unequivocally” did not

commit the crime for which he was convicted. This approach is not supported by

precedent and, moreover, it would be impossible to meet such a standard in a

circumstantial case. Rather, our precedent indicates that this innocence prong refers to

                                            D-2
the “actual innocence” rule, which is established when no reasonable jury would have

found proof of guilt beyond a reasonable doubt. See Brown v. State, 863 N.W.2d 781,

787-88 (Minn. 2015); Riley, 819 N.W.2d at 170.1 More specifically, to satisfy the

innocence prong under Minn. Stat. § 590.01, subd. 4(b)(2), Rhodes must have alleged the

existence of newly discovered evidence that, if true and considered in the light most

favorable to the petition, would establish by a clear and convincing standard that no

reasonable jury would have found Rhodes guilty of his wife’s murder beyond a

reasonable doubt, had that newly discovered evidence been presented at trial. In addition,

because any newly-discovered-evidence claim necessarily involves new evidence the jury

did not have before it, the postconviction court should assess how a reasonable jury

would react to the overall, newly supplemented record, which requires a judgment about

the evidence as a whole and its likely effect on reasonable jurors in applying the

reasonable-doubt standard.

                                           II.

      At Rhodes’s trial, Dr. Michael McGee, a medical expert for the State, testified in

relevant part that Rhodes’s wife, Jane, “received some type of trauma to the outer surface

of the skin in the neck area . . . with enough force to cause breakage of blood vessels.”


1
       The “actual innocence” rule from Brown, 863 N.W.2d at 787-88, and Riley, 819
N.W.2d at 170, uses the language “no reasonable jury would convict,” but it is helpful to
unpack the word “convict” and place it within the well-established standard for
conviction, “proof beyond a reasonable doubt.” E.g., State v. Peterson, 673 N.W.2d 482,
486 (Minn. 2004) (“[T]he Due Process Clause requires the state to prove every element
of a charged offense beyond a reasonable doubt.” (citing In re Winship, 397 U.S. 358,
364 (1970)).


                                           D-3
When asked if that external neck trauma could “have been done with a hand, in particular

a hand used . . . in the V position?” Dr. McGee replied, “I believe that is possible, yes.”

Based on this testimony, the State argued at trial that “[Rhodes] knock[ed] his wife out of

the boat with a blow to the neck.” In my view of the State’s entirely circumstantial case,

this testimony by Dr. McGee—that Jane’s neck hemorrhaging was caused by external

force—was the most critically incriminating evidence of the entire trial.2

       In his fourth postconviction petition, Rhodes presents scientific evidence that

allegedly refutes Dr. McGee’s conclusions regarding the cause of Jane’s neck

hemorrhaging. This evidence includes recent scientific literature on the causes of neck

hemorrhaging, and reports from seven forensic experts hired by the Minnesota Innocence

Project in 2012 and 2013, who examined Jane’s autopsy and the evidence from Rhodes’s

trial. Rhodes’s experts include several chief medical examiners, professors of pathology

at prominent universities, and reputable forensic pathologists. In the context of Jane’s

neck hemorrhaging, Rhodes’s petition and his expert reports rely most heavily on two

scientific articles, referred to as Alexander & Jentzen (2011) and Pollanen (2009).

       Alexander & Jentzen (2011) advances new scientific knowledge regarding

hemorrhaging in certain neck muscles caused by drowning, which allegedly refutes

previously accepted scientific knowledge that hemorrhaging in such muscles “do[es] not

occur in drowning and should always raise the suspicion of foul play.” According to Dr.


2
       At Rhodes’s postconviction hearing in 2001, one expert opined that Dr. McGee’s
medical testimony was “the most paramount of the entire trial” and the question on the
hand in the “V” position was “the murder question. That’s the question: Did he kill her?”


                                           D-4
Jentzen, this article established that this previous knowledge was “erroneous” because

such neck hemorrhaging can be explained by elevated venous pressure and rupture of

congested blood vessels, caused by drowning reactions such as coughing, gagging,

vomiting, and abdominal contractions.

       The Pollanen (2009) article proposed that, when a dead body is angled downward

(a “head down position,” which commonly occurs for drowned bodies), hemorrhagic

lividity of the soft tissue of the neck (extravascular rupture and leakage of blood vessels

due to gravitational pressure after death), causes “pseudo bruises” in the neck that may

lead to “misidentification of violent neck injury.”

       After analyzing the evidence in Rhodes’s trial and applying the relevant scientific

literature, Rhodes’s forensic experts concluded that “[Dr. McGee] misinterpreted

postmortem artifacts as antemortem injuries”; “I do not believe there is evidence of

[premortem] trauma—consistent with the story [that Jane] accidently fell overboard and

drowned”; “the hemorrhages in [Jane’s] neck were postmortem”; “I would not consider

this death a homicide”; and the death “should have been classified as an accident.” More

specifically, based on the application of science from Alexander & Jentzen (2011) and

Pollanen (2009), Dr. Hyma opined that “[t]he hemorrhages in the neck do not appear to

have been caused by external pressure.” (Emphasis added.) Dr. Wigren concluded that

Jane’s neck hemorrhages are “likely explained” by the natural, internal processes

proposed by Alexander & Jentzen (2011) and Pollanen (2009); that the type of

hemorrhaging in Jane’s neck is “not associated with blunt force injury”; and that the

hemorrhages were “not consistent with blunt force injury to the neck.”          (Emphasis

                                            D-5
added.) The opinions of Rhodes’s experts as a whole, and in particular the conclusions

by Dr. Hyma and Dr. Wigren, completely contradict Dr. McGee’s critical trial testimony

that Jane’s neck hemorrhages were caused by external trauma “to the outer surface of the

skin in the neck area . . . with enough force to cause breakage of blood vessels.”3

       The court selectively emphasizes that two of Rhodes’s experts, Drs. Jentzen and

Rao, used equivocal language in parts of their reports. They stated that “the hemorrhage

in [Jane’s] neck could have occurred during the drowning process or postmortem, as

opposed to pre-mortem external pressure”; and the “hemorrhages in [Jane’s] neck could

be attributable to something other than external pressure.” (Emphasis added.) But any

concern about equivocation, from two of seven of the forensic experts, goes to the weight

of the evidence alleged, which must be evaluated at an evidentiary hearing where these

experts and the state’s experts would be allowed to testify, to be cross-examined, and to

further explain their conclusions. At this stage, the only question is whether Rhodes

alleged the existence of evidence that is legally sufficient to warrant relief, which requires

the postconviction court to consider the evidence as true, in the light most favorable to

Rhodes, with any doubts resolved in his favor.          Under this “light most favorable”

standard, the only fair assessment of Rhodes’s petition as a whole, including all seven of

3
        Rhodes’s experts are not offered merely to “impeach” Dr. McGee, as the court
states. Rhodes’s experts are not merely taking a second look at the same trial record,
disagreeing with Dr. McGee, and reaching different conclusions, which would be
impeachment prohibited by Minn. Stat. § 590.01, subd. 4(b)(2). Rather, here Rhodes’s
forensic experts are offered to explain and apply newly discovered scientific evidence,
from Alexander & Jentzen (2011) and Pollanen (2009), to a newly supplemented record.
It is the application of that scientific evidence, and not merely hindsight disagreements by
new experts, which shows that Dr. McGee’s conclusions are scientifically erroneous.


                                            D-6
the expert reports and the scientific literature, is that Dr. McGee’s testimony about

external neck trauma was erroneous, and that Jane’s neck hemorrhages were caused by

natural drowning processes. Moreover, even if I assumed that there was not a “complete”

contradiction of Dr. McGee’s testimony, such a complete contradiction is not required to

warrant an evidentiary hearing. At the very least, Rhodes’s fourth petition presents a

dispute of material fact, which must be resolved at an evidentiary hearing. Wilson v.

State, 726 N.W.2d 103, 107-08 (Minn. 2007).

       In the postconviction court’s summary denial of Rhodes’s fourth petition, it

erroneously reached the following conclusion: “In light of the contradicting testimony

presented by equally qualified forensic pathologists, the Court cannot conclude that the

scientific literature and expert opinions offered by [Rhodes] (even if true) make it highly

probable that [Rhodes] is innocent.” (Emphasis added.) This conclusion by the district

court, made “in light of contradicting testimony” by “equally qualified forensic

pathologists” (referring to Rhodes’s experts and the State’s expert Dr. McGee), is an

abuse of discretion. This is an erroneous application of the standard for granting an

evidentiary hearing, which requires the facts alleged in the petition to be considered as

true and in the light most favorable to the petition. By weighing the “contradicting” and

“equally qualified” testimony by Dr. McGee, the postconviction court failed to properly

apply this standard. And it did what can be done only after an evidentiary hearing.

Whether Dr. McGee’s opinions are “equally qualified,” compared with the forensic

experts offered by Rhodes, is a question of credibility and evidentiary weight, which can

be considered and resolved only by live testimony at an evidentiary hearing—not on a

                                           D-7
summary denial.      Even more importantly, the fact that the postconviction court

apparently determined that Rhodes’s experts and literature were “contradict[ed]” by Dr.

McGee’s testimony is actually a basis for requiring an evidentiary hearing, not denying

one, because the contradiction presents a dispute of material fact. See Riley, 819 N.W.2d

at 167; Wilson, 726 N.W.2d at 107-08.

       The scientific evidence presented by Rhodes, when considered as true and in the

light most favorable to the petition, alleges important issues of material fact regarding

Rhodes’s newly-discovered-evidence claim, which must be resolved at an evidentiary

hearing. Even if we determine that Rhodes is not entitled to a new trial on the record

before us, an evidentiary hearing must be held if issues of material fact remain. See

Wilson, 726 N.W.2d at 106-08. In Wilson, a postconviction petitioner presented an

affidavit of a forensic expert, who questioned the scientific methods and testimony of a

State witness related to ballistics tests. Id. at 105-06. Although we held that, on the

record before us, the petitioner was “not entitled to a new trial,” we remanded for an

evidentiary hearing because the petitioner “raised important issues of material fact by

submitting [the forensic expert affidavit, which] raise[d] serious questions about the

scientific methods used . . . and the opinion testimony by the [police officer].” Id. at 106-

07 (emphasis added). We concluded that an evidentiary hearing was required because the

forensic expert’s affidavit, “if true, indicates that the officer’s testimony may have been

inaccurate or even unfounded.” Id. at 108.

       Similarly here, according to the literature and expert reports presented by

Rhodes’s fourth petition, regarding changes in scientific knowledge on drowning-related

                                             D-8
internal neck hemorrhaging, Dr. McGee’s testimony at trial that Jane’s neck hemorrhages

were caused by external force may be “inaccurate or even unfounded” under today’s

science. Indeed, under the “light most favorable” standard, we must assume that it is

inaccurate based on the contradictions presented by Rhodes’s scientific evidence.

Because Rhodes’s fourth petition, considered in the light most favorable to Rhodes, raises

“important issues of material fact” and “serious questions” about the opinion testimony of

Dr. McGee, an evidentiary hearing is required, Wilson, 726 N.W.2d at 106-08, which is

“particularly important” here because Rhodes’s fourth petition “attacks” the most critical

evidence in the State’s wholly circumstantial case, id. at 107 (citing Opsahl, 677 N.W.2d

at 423); see Rhodes II, 657 N.W.2d at 827 (stating that “the evidence in this case is

wholly circumstantial”).4

       In the alternative, the court concludes that, “even if we assume that the alleged

scientific evidence fully refutes Dr. McGee’s medical testimony, that assumption is

legally insufficient to establish the innocence prong because, as we held in Rhodes II,


4
       The court declines to address the “shifted science” rule proposed by Rhodes for
overcoming the 2-year statute of limitations under Minn. Stat. § 590.01, subd. 4(c).
Rhodes argues that, in the context of “shifted science,” the publication date of a scientific
article does not determine the date on which science changed because scientific
consensus evolves “gradually” through multiple experts and articles in the community.
With this argument, Rhodes impliedly invites us to adopt a novel “shifted science” rule,
in which the accrual date under subdivision 4(c) depends not on publication dates, but on
the date that new scientific knowledge becomes generally accepted. I would adopt this
rule, or some version of it, and remand for an evidentiary hearing to include expert
testimony on whether and when the shifted science alleged in Rhodes’s fourth petition
became “generally accepted” in the relevant scientific community. See Roby v. State, 787
N.W.2d 186, 191 & n.3 (Minn. 2010); see also State v. Tanksley, 809 N.W.2d 706, 708
n.1 (Minn. 2012).


                                            D-9
[657 N.W.2d at 846,] Rhodes’s murder conviction is independently supported by

nonmedical (i.e., nonscientific) evidence,” including “physical and motive evidence,

testimony as to Rhodes’ conduct, and inconsistencies in Rhodes’ statements.” The court

holds that its conclusions 14 years ago from Rhodes II “apply with equal force here.”

      The problem is that Rhodes II’s conclusions do not apply equally here for at least

two reasons. First and most obviously, at the time that Rhodes II was considered and

decided (2002-2003), the presently asserted, new scientific knowledge on the causes of

drowning-related hemorrhaging (Alexander & Jentzen 2011, Pollanen 2009, and the

seven expert reports) did not yet exist. Despite Rhodes II’s holding on the sufficiency of

the evidence, 657 N.W.2d at 846, the science presented in Rhodes’s fourth petition is

new, distinct, and much more critically damaging to Dr. McGee’s medical testimony

compared with the evidence asserted in Rhodes II. The evidence in this petition changes

the record that would have been heard by the jury, and this new supplemented record

must be considered as a whole, and not by melding it with our conclusion from 14 years

ago based on different, much less advanced scientific evidence related to the causes of

Jane’s injuries. Our conclusion 14 years ago that the medical evidence asserted in

Rhodes’s first postconviction petition was insufficient for relief in Rhodes II does not

necessitate a determination now that the distinct scientific evidence presented here is

legally insufficient to warrant an evidentiary hearing because nonscientific evidence

supported the conviction.    The court presents a false dichotomy between scientific

evidence and nonscientific evidence, under which no scientific evidence of any type

would ever be sufficient to exonerate Rhodes because in Rhodes II we concluded that the

                                          D-10
nonscientific evidence was sufficient. This cannot be correct. Imagine, hypothetically,

that a defendant’s conviction was affirmed on direct appeal because nonscientific

evidence was sufficient to support the verdict. Then, in a postconviction proceeding, the

defendant presented newly discovered DNA evidence that showed, to a 99.99%

probability, that the defendant did not kill the victim. Would this court hold that this

DNA evidence is legally insufficient for an evidentiary hearing because it already

concluded, under an earlier direct appeal, that certain nonscientific evidence was

sufficient to support the conviction? Of course not. The point here is that in a newly-

discovered-evidence case, the newly supplemented record must be considered anew, as a

whole, because the newly alleged evidence may push or pull on the remainder of the

evidence at trial (or from previous postconviction proceedings) in new or different ways,

such that the newly balanced record would require a reasonable jury to reach a different

conclusion. In other words, merely because scientific evidence in a previous proceeding

could not outweigh the nonscientific evidence then does not preclude new and distinct

scientific evidence from tipping that balance now. As applied here, the nonscientific

evidence from Rhodes’s trial may no longer be independently sufficient to support his

conviction, as held in Rhodes II, if it is considered fully within a newly supplemented

record and outweighed by distinctly compelling scientific evidence that refutes the most

critical evidence offered by the State at trial.

       Second, the list of “nonmedical” evidence sufficient for Rhodes’s conviction, as

described by the Rhodes II decision, now has holes that must be addressed and cannot

simply be pasted into the current, newly supplemented record. One of the items in the

                                             D-11
list, “physical evidence,” refers entirely to the State’s expert testimony from Captain

Chandler regarding the expected resurfacing time of a drowned body based on the water

temperature and depth at the drowning location. See Rhodes II, 657 N.W.2d at 829-30,

840, 843 (“Chandler found it improbable that a body could sink in Green Lake [at the 40-

foot-depth location identified by Rhodes], resurface, and then float nine-tenths of a mile

in 13 hours, given the lake temperature . . . . [P]hysical evidence proves that, under the

circumstances, a body under 40 feet of water would not refloat for three to four

weeks . . . . [P]hysical evidence suggests that Jane fell overboard in a different part of the

lake.”).

       But we now know that Captain Chandler testified incorrectly at trial regarding the

water temperature at a 40-foot depth and the resulting 3-to-4 week resurfacing time.

Although Captain Chandler testified at trial that Green Lake was 39 degrees, we now

know that the actual temperature, according to a survey by the Minnesota DNR, was 69

degrees.5 Thus, the list of “sufficient” nonmedical evidence from Rhodes II no longer



5
       The postconviction court concluded that the DNR report was untimely under the
“due diligence” requirement of the newly-discovered-evidence exception, Minn. Stat.
§ 590.01, subd. 4(b)(2), because the DNR report could have been discovered by due
diligence before the 2-year statute of limitations expired in 2007. I conclude that
Rhodes’s submission of this DNR report is not untimely because it is not reasonable to
expect a petitioner in Rhodes’s circumstances, by due diligence, to discover this DNR
data and file a petition for postconviction relief on that basis before 2007. And the
evidence here is not a disputed opinion, expert or otherwise, or some other kind of
ephemeral evidence where the passage of time or fading memories makes admission
problematic; it is temperature data maintained by an official State agency and data that is
foundational to expert testimony critical to the State’s case.



                                            D-12
holds up. Now, all we are left with is weak evidence of motive;6 conflicting witness

testimony regarding relatively innocuous conduct by Rhodes;7 observations of a boat on

Green Lake;8 and relatively minor inconsistencies in Rhodes’s statements, given three

separate times over a 3-month period.9 See Rhodes II, 657 N.W.2d at 846. Thus, the


6
       The State argued that Rhodes had a motive to kill Jane because of (1) a nonsexual
relationship with another woman that ended 13 months before Jane’s death; (2) a one-
time consultation with a divorce attorney 15 months before Jane’s death; (3) life
insurance; and (4) household debt from a home mortgage and loans on a car and a boat.
7
        For example, on the night of the drowning, one witness saw a man, matching
Rhodes’s description, drive a boat to shore. The man “took off running” at “top speed”
across the street to the Northern Inn. But another witness testified that a man, matching
Rhodes’s description, returned his boat to shore, and “walked” across the street to the
Northern Inn. During the search for Jane, witnesses observed Rhodes’s conduct to be
consistent with “someone who just lost a loved one”—he was described by various
witnesses as “crying,” “very upset,” “frantic,” “very emotional,” “wanting to save his
wife,” “deeply agitated,” and “devastated” with “huge sobs.” But one witness testified
that although “once in a while [Rhodes would] be emotional and cry,” the witness did not
“notice any tears.” Another witness said that Rhodes was “not [crying] in my opinion,”
although that witness “couldn’t see [Rhodes’s] face” and wasn’t “paying much attention.”
8
       For example, seven witnesses testified to seeing or hearing sounds from a boat on
Green Lake on the night of Jane’s drowning. Some of these witnesses testified to seeing
a boat driving in “nine and eight” patterns with rapid speed and sharp circles. Five of
these witnesses testified to hearing sounds that were not distressful, such as “laughter,”
“hooting and hollering,” “partying it up,” and “having fun out there.” One of these seven
witnesses heard “moaning sounds” and a woman’s voice scream, “Stop. No. It Hurts.”
Rhodes told police that, while he and his wife were taking an intimate boat ride, they saw
and heard another boat without any lights that was “partying it up” and “tearing around.”
9
       These inconsistencies, collected from statements made by Rhodes on August 3,
1996, August 15, 1996, and October 10, 1996, include the following: (1) that the boat
was going “slow” or near “top speed,” although police confirmed that the boat’s
speedometer was not working properly; (2) that Jane fell overboard near the “back,” the
“side,” or the “back side” of the boat; (3) that the boat was headed north or headed
toward shore at the time Jane fell overboard; (4) that when Jane fell overboard, Rhodes
missed the throttle on the first grab and then turned around the boat, or he “immediately”
                                                        (Footnote continued on next page.)

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decision here becomes even more troubling. In essence, the court is now relying on only

part of the conclusion from Rhodes II on the sufficiency of the nonmedical evidence that

was reached after an evidentiary hearing; adding that conclusion to a newly

supplemented record with distinct scientific evidence that refutes critical state testimony;

and concluding that Rhodes’s fourth petition is legally insufficient, without allowing an

evidentiary hearing to actually weigh this newly supplemented record.

       The provisions of Chapter 590, and our case law interpreting those provisions, are

designed to reduce the burden of meritless postconviction proceedings. Those provisions

are not intended, however, to bar claims that may have merit.       Based on the material

factual issues presented by Rhodes’s fourth petition, I cannot conclusively say that

Rhodes is entitled to no relief. Minn. Stat. § 590.04, subd. 1; Wilson, 726 N.W.2d at 106-

08; see Bobo, 820 N.W.2d at 516-20. Here, the newly discovered evidence, if proven to

be true, and considered in the light most favorable to Rhodes, would establish by a clear-

and-convincing standard that no reasonable jury would have convicted Rhodes of first-

degree premeditated murder beyond a reasonable doubt had the newly discovered

evidence been presented at trial. See Minn. Stat. § 590.01, subd. 4(b)(2); Brown, 863

N.W.2d at 787-88; Riley, 819 N.W.2d at 170. Under our well-established precedent,

“any doubt” must be resolved in favor of holding an evidentiary hearing, and holding

such a hearing is “particularly important” where newly discovered evidence attacks

(Footnote continued from previous page.)
turned around (without mentioning whether a throttle grab was missed); and (5) that Jane
did not scream when she fell overboard, or there “might have been like a muffled
scream” or a “cut off scream . . . [but it] would be pure speculation on my part.”


                                           D-14
important evidence in a wholly circumstantial case like this one. Bobo, 820 N.W.2d at

516; Wilson, 726 N.W.2d at 107; Opsahl, 677 N.W.2d at 423. For these reasons, I would

reverse and remand for an evidentiary hearing. I respectfully dissent.



LILLEHAUG, Justice (dissenting).

      I join in the dissent of Justice Anderson.




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