Kevin Terrance HANNON, Appellant, v. STATE of Minnesota, Respondent.
A16-0498
Supreme Court of Minnesota.
Filed: February 8, 2017
889 N.W.2d 789
Lori Swanson, Attorney General, Saint Paul, Minnesota; and Janelle P. Kendall, Stearns County Attorney, Michael J. Lieberg, Assistant County Attorney, Saint Cloud, Minnesota, for respondent.
OPINION
HUDSON, Justice.
This case is an appeal from the denial of Kevin Terrance Hannon‘s third petition for postconviction relief. After we overturned Hannon‘s first conviction on direct appeal, he was tried a second time and convicted of first-degree murder while committing or attempting to commit a kidnapping,
I.
In September 1999, Hannon killed his girlfriend, Deborah Tolhurst, during a physical altercation in their shared apartment.1 Among the pieces of evidence later discovered by law enforcement was a bloodstained denim shirt identified as the one that Hannon had been wearing on the day of the murder. Bureau of Criminal Apprehension (BCA) Forensic Scientist Ann Gross obtained a DNA profile from the blood on the shirt that matched Tolhurst‘s DNA profile. Gross also obtained a DNA sample from skin cells on the shirt collar. According to Gross, the predominant DNA profile in the sample matched Hannon‘s DNA profile. She testified that neither profile match would be expected to
After a jury trial, Hannon was convicted of four counts of first-degree murder and one count of second-degree murder. We reversed and remanded for a new trial after deciding that the trial court erroneously admitted statements made by Hannon to interrogating officers after he had invoked his right to counsel. State v. Hannon (Hannon I), 636 N.W.2d 796, 807 (Minn. 2001). After a second jury trial, Hannon was found guilty and convicted of first-degree murder while committing or attempting to commit a kidnapping and sentenced to life in prison without the possibility of release under
In December 2006, Hannon filed his first petition for postconviction relief. The postconviction court held a hearing, after which it concluded that all of Hannon‘s claims were either meritless or procedurally barred, and denied the petition. We affirmed the denial of Hannon‘s petition. Hannon v. State (Hannon III), 752 N.W.2d 518, 520 (Minn. 2008). In January 2009, Hannon filed another petition for postconviction relief. The postconviction court denied the petition, concluding that all of Hannon‘s claims were untimely filed under
This case involves Hannon‘s third petition for postconviction relief, which he filed in September 2015. In nearly 200 pages of materials, Hannon brought a host of claims, which generally fall into 12 categories: (1) an unauthorized sentence, (2) incompetence to stand trial; (3) ineffective assistance of trial counsel; (4) judicial bias by the trial judge; (5) judicial bias by the previous postconviction judge; (6) failure to serve the indictment; (7) actual innocence; (8) evidence of false DNA testimony from the BCA scientist; (9) evidence of false/inaccurate statements from the State‘s witnesses; (10) evidence relating to substantive evidence referenced at trial; (11) evidence of a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (12) prosecutorial misconduct. The postconviction court denied Hannon‘s petition without holding an evidentiary hearing, concluding that all of the claims except the sentencing claim were untimely filed under
II.
We review the denial of a petition for postconviction relief under an abuse-of-discretion standard. Erickson v. State, 842 N.W.2d 314, 318 (Minn. 2014). “In doing so, we review findings of fact for clear error and questions of law de novo.” Id. A postconviction court abuses its discretion only when it has “exercised its discretion in an arbitrary or capricious manner, based its ruling on an erroneous
A.
Hannon‘s sentencing claim is based on his assertion that his sentence of life in prison without the possibility of release is impermissible because the maximum sentence permitted by
B.
The postconviction court denied Hannon‘s remaining claims as untimely filed. The statute governing postconviction petitions,
(1) the petitioner establishes that a physical disability or mental disease precluded a timely assertion of the claim;
(2) 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; (3) the petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States Supreme Court or a Minnesota appellate court, and the petitioner establishes that this interpretation is retroactively applicable to the petitioner‘s case; (4) the petition is brought pursuant to subdivision 3 [dealing with convictions for crimes committed before May 1, 1980]; or (5) the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.
Hannon does not explain which exception applies; in fact, he does not mention
Construing his petition liberally, Hannon arguably invokes the newly-discovered-evidence exception for his untimely filed claims. For example, in his arguments relating to false DNA testimony, Hannon contends that he has discovered new DNA evidence that we should consider. Accordingly, the postconviction court did not abuse its discretion in evaluating Hannon‘s claims under this exception.
Even if Hannon‘s claims properly fit the newly-discovered-evidence exception, all of his remaining claims arose more than 2 years before the filing of his third petition and are therefore untimely filed under
Second, Hannon argues that he received ineffective assistance of counsel from his attorney at his second trial. In particular, Hannon takes issue with trial counsel‘s alleged failure to request a competency hearing; asserts that trial counsel did not allow Hannon to testify at his trial despite Hannon‘s desire to do so; and claims that he overheard the prosecutor offering trial counsel a plea bargain in his case, which trial counsel allegedly declined without consulting Hannon. In support of these claims, Hannon states that trial counsel admitted to him, over a “recorded prison phone,” that trial counsel received and declined a plea deal, and points to the transcript from his 2007 postconviction hearing, in which trial counsel testified about the decision not to request a competency hearing and the decision not to have Hannon testify. Again, Hannon was aware of the claims regarding the competency hearing and the decision not to testify when he petitioned for postconviction relief in 2006 and during his hearing in 2007, and was aware of trial counsel‘s admission over the telephone at least by 2009 (when he included it in his second postconviction petition), all of which occurred before September 2013, making his claims untimely filed.
Third, Hannon argues that the trial judge was biased against him because she was in a personal relationship with an acquaintance of the victim. Hannon points to the trial judge‘s alleged refusal to grant a request for a psychological evaluation at trial, a 2006 affidavit from trial counsel stating that the judge had a personal relationship with the acquaintance, and a 2002 letter from an investigator whose interview of the acquaintance‘s ex-husband appears to support the claim that the trial judge had a social relationship with the acquaintance. As with the other claims, the alleged judicial bias was known at the time of Hannon‘s trial (in fact, Hannon attempted unsuccessfully to have the trial judge removed from the case), and the latest date on the supporting materials is 2006, making this claim untimely filed by at least 7 years.
Fourth, Hannon alleges judicial bias by the postconviction judge. Hannon contends that the postconviction judge acted improperly by: (1) telling trial counsel to change his testimony when trial counsel testified at Hannon‘s first postconviction hearing; and (2) discussing trial counsel‘s anticipated testimony with the prosecutor at the hearing and commenting that he (the postconviction judge) already knew how he would rule in the case. In support of his position, Hannon again cites the transcript from his 2007 hearing, when the change in testimony took place; the last page of the postconviction judge‘s memorandum from the 2007 hearing questioning trial counsel‘s testimony (which allegedly shows the postconviction judge‘s bias); and
Fifth, Hannon contends that the indictment was defective because, according to him, he was not served with the indictment until he specifically requested it in 2008. This claim is also untimely filed. Hannon should have been aware of the failure to serve the indictment when he faced trial for the crime; and even by his own admission, he knew about this failure in 2008 when he requested and received the indictment. The claim thus accrued well before 2013.
Sixth, Hannon argues that prosecutorial misconduct occurred because the prosecutor used jailhouse informants and failed to disclose to Hannon the deals offered to the witnesses.4 Hannon‘s evidence is a 2009 affidavit from an inmate stating that other inmates had been offered incentives to testify against Hannon, as well as the transcript from a 1999 proceeding, which allegedly demonstrates that a witness agreed to testify against Hannon in exchange for dismissal of his charge. As with his other claims, these pieces of evidence are dated well before 2013 and therefore Hannon‘s newly-discovered-evidence claim of prosecutorial misconduct was untimely filed.
Hannon‘s remaining claims deal with two major allegations: first, that newly discovered evidence shows that some of the State‘s witnesses provided false statements; and second, that newly discovered DNA evidence supports his innocence and shows that the State‘s expert witness‘s DNA-evidence testimony was false. As to the first claim, Hannon‘s support consists of a 2006 affidavit by trial counsel claiming that: (1) one witness admitted in a sworn statement that he had been coerced into testifying falsely before the grand jury; and (2) another witness informed trial counsel that the witness had lied to investigators. Hannon‘s other piece of evidence is the 2001 sworn statement of the first witness mentioned in trial counsel‘s affidavit, stating that the witness had been coerced into providing false answers to interrogators and that he had been prevented from testifying truthfully at the grand-jury hearing. This claim is clearly untimely filed; Hannon knew or should have known about the first witness‘s untruthfulness by, at the latest, 2001 (the date of the affidavit), and even trial counsel‘s affidavit, dated 2006, was prepared several years before September 2013.
Finally, Hannon asserts that he is actually innocent. This claim is wholly premised on his other claims. For example, he claims that the evidence he presented regarding the DNA evidence at his trial shows that the DNA-evidence testimony was false and therefore he is innocent. Having carefully considered Hannon‘s actual-innocence claim, we conclude that it lacks merit and, in any event, is untimely filed because all of the underlying claims are untimely filed.5
III.
For the foregoing reasons, we conclude that the postconviction court did not abuse its discretion when it denied Hannon‘s postconviction petition without holding an evidentiary hearing.
Affirmed.