                          This opinion will be unpublished and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
                                     A14-1795

                         Hassan Mohamed Abdillahi, petitioner,
                                    Appellant,

                                           vs.

                                   State of Minnesota,
                                       Respondent

                                 Filed August 17, 2015
                                       Affirmed
                                     Worke, Judge

                             Hennepin County District Court
                       File Nos. 27-CR-08-52463, 27-CR-CV-14-42

Hassan M. Abdillahi, Bayport, Minnesota (pro se appellant)

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

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

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

Stoneburner, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

WORKE, Judge

       In appellant’s third appeal of his second-degree intentional murder conviction, he

argues that his conviction should be reversed, or alternatively that he is entitled to an

evidentiary hearing or new trial, because (1) false witness testimony led to his conviction;

(2) his incarceration violates the Fourteenth Amendment; (3) his trial counsel was

ineffective; (4) the district court erred by denying his motion for postconviction

discovery; and (5) the prosecutor was biased. We affirm.

                                           FACTS

       A.H. was shot and killed in September 2008 outside a mall in Minneapolis. A

surveillance video showed three people standing outside the mall: A.H., A.I., and S.M. A

hooded individual spoke with the three people then exited the video frame. A.I. and S.M.

entered the mall, and the hooded individual returned and shot A.H. A.I. and S.M.

identified appellant Hassan Mohamed Abdillahi as the hooded individual. A.I. testified

to this identification at trial, but S.M. refused to testify and was held in contempt of court.

Another trial witness, K.O., testified that in early September 2008, Abdillahi told him that

he was going to kill A.H. in retaliation for the murder of Abdillahi’s cousin by another

individual who had since fled the country. In June 2009, a jury found Abdillahi guilty of

second-degree intentional murder.       A.I. was murdered by an unknown assailant in

October 2009.

       In November 2009, Abdillahi appealed his conviction, arguing that: (1) the

evidence was insufficient to sustain the guilty verdict, (2) the district court abused its


                                              2
discretion by admitting Spreigl evidence and giving an erroneous jury instruction, (3) the

prosecutor committed misconduct, (4) the district court abused its discretion by denying

his discovery request regarding two unrelated homicide investigations, and (5) the

cumulative effect of these errors denied him a fair trial. See State v. Abdillahi, No. A09-

2011, 2011 WL 691623, at *1 (Minn. App. Mar. 1, 2011), review denied (Minn. May 17,

2011). This court affirmed on all issues. Id.

       Abdillahi then petitioned for postconviction relief. In August 2012, Abdillahi

appealed the district court’s denial of his first postconviction petition, arguing that the

district court erred by concluding that (1) he failed to prove his ineffective-assistance-of-

counsel claims and (2) his allegations that the admission of Spreigl evidence was

erroneous and that the complaint contained factual errors that were meritless and Knaffla-

barred. See Abdillahi v. State, No. A12-1477, 2013 WL 2924900, at *1 (Minn. App. June

17, 2013), review denied (Minn. Aug. 20, 2013). This court again affirmed on all issues.

Id.

       In August 2013, Abdillahi filed a second postconviction petition along with

several collateral motions. He moved the district court to compel discovery and hold an

evidentiary hearing on his claim of newly discovered evidence of falsified trial testimony,

determine whether trial and appellate counsel were ineffective, and determine whether

the prosecutor was motivated by “discriminatory purposes.” The district court granted an

evidentiary hearing on the claim of falsified testimony and denied the other requests.




                                             3
       After the evidentiary hearing, the district court denied Abdillahi’s request for a

new trial, concluding that Abdillahi failed to meet his burden to show that there was false

testimony or recantation. This appeal follows.

                                     DECISION

False Testimony

       Abdillahi first argues that he is entitled to a new trial because two witnesses, A.I.

and K.O., falsely testified at his trial and because A.I. recanted shortly after trial. The

court may grant a new trial based on false testimony when: (1) the court is reasonably

satisfied that the testimony was false; (2) the jury might have reached a different

conclusion without the testimony; and (3) the petitioner was surprised by the testimony

and was unable to counteract it or did not know it was false until after the trial. State v.

Nicks, 831 N.W.2d 493, 511 (Minn. 2013) (citing Larrison v. United States, 24 F.2d 82,

87-88 (7th Cir. 1928). We review the district court’s postconviction decision to deny a

new trial for an abuse of discretion, and our review “is limited to whether there is

sufficient evidence to sustain the [district] court’s findings.”    State v. Hooper, 620

N.W.2d 31, 40 (Minn. 2000). “Courts have traditionally looked with disfavor on motions

for a new trial based on recantations unless extraordinary or unusual circumstances

exist.” Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989).

       The district court held, as a preliminary bar, that A.I.’s alleged recantation was

inadmissible hearsay evidence. Hearsay is an out-of-court statement made by a declarant

offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c). Hearsay is

inadmissible unless there is an exception. Minn. R. Evid. 802.


                                             4
       Abdillahi asserts that A.I.’s recantation falls under a hearsay exception because it

was a sufficiently corroborated statement against penal interest. A declarant’s statement

is not excluded by the hearsay rule if the declarant is unavailable and the statement is

against the declarant’s interest.      Minn. R. Evid. 804(a)(4),(b)(3).          A declarant is

unavailable if he “is unable to be present or to testify at the hearing because of death.”

Minn. R. Evid. 804(a)(4). Because A.I. is deceased, he is unavailable.            A statement is

against interest if:

               at the time of its making [it is] so far contrary to the
               declarant’s pecuniary or proprietary interest, or so far tended
               to subject the declarant to civil or criminal liability . . . that a
               reasonable person in the declarant’s position would not have
               made the statement unless believing it to be true.

Minn. R. Evid. 804(b)(3). Because A.I.’s recantation would make his trial testimony

perjury, it was a statement against penal interest. But a statement that exposes the

declarant to criminal liability and is offered to exculpate the accused is not admissible

unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Id. To determine if a statement is corroborated, the court considers the totality of the

circumstances, utilizing the following factors:

               (1) whether other evidence corroborates the facts in the
               hearsay statement; (2) the extent to which the hearsay
               statement is consistent with the declarant’s prior testimony
               and other statements; (3) the relationship between the
               declarant and other witnesses and parties, including the
               defendant; (4) whether the declarant has reason to fabricate
               the statement; (5) the overall credibility and character of the
               declarant; and (6) the timing of the statement.




                                                5
Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013). “[T]he relevance of each of the

six factors will vary depending on the facts of each case.” Dobbins v. State, 845 N.W.2d

148, 153 (Minn. 2013), cert. denied, 134 S. Ct. 1913 (2014).

       Abdillahi claims that A.I’s recantation is corroborated by other facts because

Abdillahi had an alibi for the time of the murder and A.I. told law enforcement and the

county attorney’s office that he was not able to identify Abdillahi. But Abdillahi’s own

alibi claim does not necessarily corroborate A.I.’s alleged recantation, and Abdillahi does

not provide evidence for his assertion that A.I. previously said he was unable to identify

Abdillahi. This factor weighs against corroboration.

       The second factor also weighs against corroboration because the alleged

recantation is inconsistent with A.I.’s testimony and evidence in the record.

       The district court did not address the third factor, the relationship between the

parties. Abdillahi does not provide any record-supported arguments on this factor.

       While Abdillahi asserts that A.I. had no reason to fabricate his recantation, based

on the record, A.I. may have been rightfully afraid—he was murdered by an unknown

assailant a few months after the trial.     Thus, the fourth factor also weighs against

corroboration.

       The fifth factor weighs against corroboration because there is no evidence in the

record that A.I. was not credible or had a history of falsely accusing others of crimes.

       We agree with the district court’s analysis that the timing of A.I.’s recantation, the

sixth factor, was “highly suspect.” A.I. allegedly recanted between Abdillahi’s trial and

sentencing, but the people he recanted to, A.A. and H.I., did not come forward for over


                                             6
three years. The district court noted that “neither witness offered a credible explanation

for the delay.” Based on these factors, the district court did not abuse its discretion by

finding that A.I.’s recantation was not corroborated and therefore was inadmissible

hearsay.

       Abdillahi claims that the witnesses who testified that A.I. recanted, A.A. and H.I.,

were credible. But we defer to the district court on matters of credibility, State v.

Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130

(1993), and the district court found that neither witness was credible. The court found

A.A.’s testimony, that A.I. told him he never saw the shooter and only testified against

Abdillahi because his life was threatened, not credible because the surveillance video

shows A.I. with the victim outside the mall when the shooter walked by. The district

court found H.I.’s testimony, that A.I. did not see the shooter and was not at the mall that

evening, not credible for the same reason and because H.I.’s previous affidavit did not

mention these facts.

       Abdillahi claims that the district court misinterpreted A.A. and H.I.’s testimony to

mean that A.I. said he was not at the mall, when instead A.I. said only that he “didn’t

really see [the shooter],” that “he didn’t see nobody,” and that he “didn’t see who did it.”

But H.I. testified that A.I. “said he wasn’t there. Like he wasn’t at this . . . mall or

anything. They coerced him to say that.” And the other statement Abdillahi points to,

that A.I. did not see who shot A.H., does not undermine the district court’s findings

because it is undisputed that A.I. did not witness the actual murder.




                                             7
       Abdillahi also argues that A.I.’s recantation was admissible as an excited

utterance. Abdillahi provides no legal citation or analysis regarding this argument, and

we decline to address this argument in the absence of adequate briefing. State v. Bartylla,

755 N.W.2d 8, 22-23 (Minn. 2008). Because we conclude that A.I.’s alleged recantation

is inadmissible hearsay, we need not reach Abdillahi’s claim that the recantation was

admissible as substantive evidence because it violated his right to due process.

       Abdillahi next argues that the district court erred when it found that K.O. was

competent and available to testify at trial and the postconviction hearing.              “The

determination of a witness’ competency is one peculiarly for the [district] court to

consider.” State v. Lau, 409 N.W.2d 275, 277 (Minn. App. 1987).               We review the

district court’s competency determination for an abuse of discretion. State v. Sime, 669

N.W.2d 922, 925 (Minn. App. 2003).

       Abdillahi asserts that the court must evaluate whether the witness has the ability to

recall facts and the capacity to tell the truth. But this two-part evaluation refers to a child

witness’s competency to testify. State v. Struss, 404 N.W.2d 811, 814 (Minn. App.

1987), review denied (Minn. June 9, 1987). And while Abdillahi argues that the district

court erred by relying on K.O.’s rule 20 evaluation because a rule 20 evaluation is too

high of a standard to determine a witness’s (and not a criminal defendant’s) competency,

the court considered both the rule 20 and its in camera questioning of K.O. The district

court noted that K.O. “tracked the questions and provided responsive answers” and that

K.O. specifically denied telling a third party, An. A., that his trial testimony was false.




                                              8
On this record, the district court did not abuse its discretion in determining that K.O. was

competent to testify.

       Abdillahi next argues that K.O. was unavailable because he could not remember

telling An. A. that he testified falsely. A witness is unavailable to testify regarding a

proffered hearsay statement if he “testifies to a lack of memory of the subject matter of

the . . . statement.” Minn. R. Evid. 804(a)(3). But K.O. did not testify that he lacked a

memory of his conversation with An. A.; K.O. denied having the conversation.

Therefore, the district court properly found K.O. available.

       Abdillahi additionally asserts that K.O.’s alleged statements to An. A. must be

admissible as substantive evidence because Abdillahi’s right to due process would be

violated if he cannot show that K.O. made false statements. But because K.O. was

available and competent to testify, the statements do not fall under a hearsay exception

and this argument is without merit. Further, Abdillahi’s assertion that his right to due

process was violated because his postconviction attorney did not timely challenge K.O.’s

competency is not relevant because due process refers to government actors and his

attorney is a private party whose conduct “generally lies beyond the scope of the United

States Constitution.” State v. Beecroft, 813 N.W.2d 814, 837 (Minn. 2012).1

       Because we conclude that there was sufficient evidence for the district court to

determine that it was not satisfied that the witnesses’ testimony was false, the district

1
  Abdillahi also claims that the district court judge was biased, and requests that we
remand for a hearing in front of an unbiased judge, partially because he has not received
complete transcripts. But the district court granted Abdillahi’s motion for complete
transcripts. This court denied a separate motion for complete transcripts as unnecessary
because the district court had already granted his motion for complete transcripts.

                                             9
court did not abuse its discretion by denying Abdillahi a new trial and we need not

address the second and third Larrison prongs.

Actual Innocence

       Abdillahi argues that the district court erred by not allowing him to amend his

postconviction pleading to claim that his conviction was unconstitutional based on his

actual innocence. But Abdillahi does not provide any relevant authority for why the

district court must allow an amendment when he cites only civil (and not criminal)

pleading rules.

       Regardless, Abdillahi’s claims of actual innocence fail on the merits. Abdillahi

asserts that there is sufficient proof of his actual innocence based on his own trial

testimony and because A.I. recanted and K.O. was not competent to testify. But we

affirm the district court’s findings that A.I. did not satisfactorily recant and that K.O. was

competent to testify, essentially leaving Abdillahi with a sufficiency-of-the-evidence

claim. And this court has already rejected Abdillahi’s sufficiency-of-the-evidence claim

on direct appeal. Abdillahi is therefore Knaffla-barred from raising this claim again. See

Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007) (holding that a postconviction

petition may not raise issues that are “essentially the same” as those raised on direct

appeal); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (stating that

all matters raised on direct appeal, or known but not raised, will not be considered in

postconviction proceedings).




                                             10
Ineffective assistance of counsel

       Abdillahi next argues that his trial counsel was ineffective because he “forgot” to

call a witness to rebut K.O.’s testimony.          Abdillahi raised the issue of ineffective

assistance of both trial and appellate counsel in his first postconviction petition. See

Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003) (extending the Knaffla-bar to matters

raised in a prior postconviction-relief petition).        While the Knaffla rule has two

exceptions that allow review if a novel legal issue is presented or if review is necessary in

the interests of justice, Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006),

Abdillahi’s claim does not fall under either of these exceptions. No novel legal issue is

raised, and it is not in the interests of justice for this court to review the same issue again.

Therefore, Abdillahi’s ineffective-assistance-of-counsel claim is Knaffla-barred.

Postconviction discovery

       Abdillahi next requests that this court compel disclosure of A.I.’s pretrial

statements. But this court denied that request on March 11, 2015. Thus, we decline to

address it again.

Prosecutor bias

       Abdillahi finally argues that he is entitled to a new trial or an evidentiary hearing

because his right to equal protection was violated when the prosecuting attorney on his

case demonstrated racial bias. Abdillahi claims that during an unrelated trial of a Somali




                                              11
man seven months after his conviction, the prosecuting attorney posted “anti[-]Somali

racist comments” on Facebook. 2

      The district court found that because the alleged comments were made seven

months after Abdillahi’s conviction, they could not have biased his proceedings and

denied an evidentiary hearing on the matter. This court reviews the denial of a request

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

(Minn. 2012). The court should resolve any doubt about whether an evidentiary hearing

should be held in the petitioner’s favor. Bobo v. State, 820 N.W.2d 511, 516 (Minn.

2012). But an evidentiary hearing is not required when a petitioner makes an argument

without factual support. Laine v. State, 786 N.W.2d 635, 637 (Minn. 2010).

      Abdillahi asserts that he is entitled to discovery and an evidentiary hearing on

prosecutor bias because of the alleged Facebook comments. But, like the district court

found, he does not show how these comments affected his conviction.        Abdillahi cites

several equal-protection cases, but they primarily regard selective prosecution. See, e.g.,

United States v. Armstrong, 517 U.S. 456, 456, 116 S. Ct. 1480, 1482 (1996) (holding

that to establish entitlement to discovery defendant must produce credible evidence that

similarly situated defendants of other races were not prosecuted); Wayte v. United States,

470 U.S. 598, 599, 105 S. Ct. 1524, 1526 (1985) (holding that a passive enforcement

policy for draft nonregistrants did not violate equal protection);. Abdillahi’s second-


2
  Abdillahi submitted affidavits from public defenders claiming that the prosecutor posted
that she had to “keep the streets of Minneapolis safe from the [sic] Somalias.” But he has
not provided the actual Facebook posts and there is generally no right to postconviction
discovery. Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103-04 (1969).

                                            12
degree murder offense was unlikely to be selectively prosecuted and he provides no facts

to demonstrate that race or a discriminatory motive affected the choice to prosecute him

or his right to a fair trial.3 Therefore, the district court did not abuse its discretion in

denying an evidentiary hearing and discovery on this issue.

       Affirmed.




3
  We note that the postings, if true, are egregious and may constitute professional
misconduct, but this alone does not entitle Abdillahi to an evidentiary hearing. See
Zenanko v. State, 587 N.W.2d 642, 645 (Minn. 1998) (“An evidentiary hearing is not
required unless facts are alleged which, if proven true, would be sufficient to support the
petitioner’s request for relief.”).

                                            13
