OPINION
Aрpellant Gary Roby was convicted of aiding and abetting the crimes of first-degree premeditated murder, first-degree murder while committing aggravated robbery, and second-degree intentional murder for his role in the shooting death of Marlizza McIntyre. We affirmed Roby’s conviction on direct appeal. State v. Roby (Roby I),
The facts surrounding Marlizza McIntyre’s murder are set forth in detail in Roby I. Id. at 507-09. We limit our discussion of the facts to those directly relevant to this appeal. McIntyre was killed by one shot to the back of her head while she was being held down and robbed on May 22, 1989, in the kitchen of a Saint Paul apartment. Lillian Dunn-Simmons, Kenneth Fisher, L.Y., A.J., S.L., appellant Gary Roby, and two of appellant’s brothers were all in the apartment at the time of the murder.
Fisher testified that on the day of the murder, yelling and screaming from the kitchen of the apartment woke him. When he went to investigate the noise, he saw McIntyre being held face down on the floor. Dunn-Simmons and appellant’s brothers were holding McIntyre down while Rоby straddled McIntyre’s back and removed some of her jewelry and at least $80 from her bra. Fisher testified that Roby pulled out a revolver, pulled back McIntyre’s hair, and shot her in the back of the head.
S.L. also testified that McIntyre was killed by a shot to the back of the head. But she said that Dunn-Simmons fired the fatal shot while an unknown black man held McIntyre down. The State, however, impeached S.L. with two prior statements in which she had indicated that the man holding McIntyre down was, or could have been, Roby.
L.Y. testified that she did not see the murder, but when she looked into the kitchen she saw Dunn-Simmons and Roby near McIntyre’s dead body. She also testified that after the murder no one talked about what had happened.
A.J. testified that she saw McIntyre and Roby in the kitchen struggling for a gun with no one else near them. Then, McIntyre called Dunn-Simmons for help, and Dunn-Simmons joined the struggle. While all three were struggling for the gun, a shot was fired into the floor. After this initial shot, A.J. testified that Roby and McIntyre let go of the gun and Dunn-Simmons shot McIntyre.
In addition to the testimony described above, the State also relied on Roby’s statements to police and the circumstances surrounding his arrest. When questioned, Roby gave the police conflicting stories,
Roby’s defense at trial was that Dunn-Simmons, acting alone, decided to rob McIntyre and that Dunn-Simmons fired the fatal shot. Her motive for the killing, according to Roby, was to end a love triаngle between Dunn-Simmons, McIntyre, and an unidentified man.
After being convicted, Roby filed a direct appeal. Roby argued that evidence was erroneously admitted, his constitutional right to confront witnesses was violated, he was denied effective assistance of counsel, the State obtained his conviction through perjured testimony, and his right to due process was violated. We affirmed Roby’s conviction, concluding that the State’s evidence-was “overwhelmingly persuasive of [Roby]’s guilt.” Roby I,
Roby filed this, his third petition for postconviction relief, on March 27, 2009. His petition is based on five pieces of evidence that Roby contends are newly discovered evidence, and he argues that his claims should be considered in the interests of justice. The evidence at issue is: a 1989 police report, a 2002 letter from Dunn-Simmons, a 2003 affidavit of V.C., a 2007 affidavit of T.B., and a 2008 affidavit of C.H.
The postconviction court originally dismissed Roby’s entire petition as untimely under Minn.Stat. § 590.01, subd. 4(a) (2010), because Roby failed to specifically invoke an exception to the 2-yеar statute of limitations. Roby appealed, and we found that Roby had properly invoked the newly discovered evidence and interests of justice exceptions set forth in Minn.Stat. § 590.01, subd.' 4(b)(2) and (5) (2010). Accordingly, we reversed and remanded to the postconviction court for a determination of whether Roby’s petition was time-barred under Minn.Stat. § 590.01, subd. 4(c) (2010), and if not, whether he had actually established either of the invoked exceptions in Minn.Stat. § 590.01 subd.
On remand, the postconviction court denied Roby’s petition without an evidentiary hearing, holding that Minn.Stat. § 590.01, subd. 4(c) barred the claims that were based on the 1989 police report and the 2002 letter from Dunn-Simmons. Without considering whether Roby had actually established any of the exceptions listed in Minn.Stat. § 590.01, subd. 4(b), the post-conviction court concluded that Roby’s remaining claims failed on the merits. Roby appealed.
On appeal from a postconviction court’s denial of relief, the de novo standard applies to our review of issues of law and the clearly erroneous standard applies to our review of the court’s findings of fact. Riley v. State,
Roby makes three arguments on appeal. Roby argues that the postconviction court abused its discretion when it found that portions of his petition were untimely. Roby also argues that the postconviction court abused its discretion when it denied him an evidentiary hearing on the portions of his petition that it found to be timely. Finally, Roby argues that to the extent his claims are untimely, we should nevertheless consider them under the doctrine of equitable tolling. We examine each issue in turn.
I.
We turn first to the question of whether Roby’s petition is timely. Petitions for postconviction relief are governed by Minn.Stat. ch. 590 (2010). The Legislature added a statute of limitations to the post-conviction statute by amending section 590.01 in 2005. See Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 901, 1097-98. There are three different provisions in the limitations amendment, and all are relevant here. First, subdivision 4(a) in the amended statute provides that a petition for postconvietion relief cannot be filed more than 2 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.” Minn.Stat. § 590.01, subd. 4(a). The legislation amending the statute is effective as of August 1, 2005, and “[a]ny person whose conviction became final before August 1, 2005, shall have two years after the effective date of [the amendments] to file a petition for postconviction relief.” See Act of June 2, 2005, ch. 136, art. 14, § 13, 2005 Minn. Laws 901, 1097; Stewart v. State,
Roby’s conviction became final in 1990, 90 days after we decided Roby I. See Moua v. State,
A.
The postconviction court concluded that Roby’s claims based on the 1989 police report and the 2002 Dunn-Simmons letter were untimely under subdivision 4(c). Roby argues that that conclusion was erroneous.
With respect to the claim based on the 1989 police report, Roby admitted that he learned of the report in 2004. With respect to the claim based on the 2002 Dunn-Simmons letter, the latest Roby could be said to have learned of it was when he received the letter on or about November 3, 2003. Roby filed his petition more than 2 years after he learned of these claims. We therefore hold that the postconviction court properly found that these claims were untimely under Minn. Stat. § 590.01, subd. 4(c).
B.
The postconviction court held that Roby’s claims based on the 2003 affidavit of V.C., the 2007 affidavit of T.B., and the 2008 affidavit of C.H. were timely under subdivision 4(c). The State does not challenge the court’s conclusion, and so we assume, without deciding, that these claims satisfy subdivision 4(c), and turn to the quеstion of whether these claims fall within an exception in subdivision 4(b).
1.
We consider first whether any of Roby’s claims satisfy the newly discovered evidence exception. The postconviction statute sets out the elements necessary to establish the exception for newly discovered evidence. Minn.Stat. § 590.01, subd. 4(b)(2). Those elements are:
(1) A petitioner must allege the existence of newly discovered evidence (including scientific evidence);
(2) The evidence сould not have been ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within the 2-year time period for filing a postconviction petition;
(3) The evidence is not cumulative to evidence presented at trial;
(4) The evidence is not for impeachment purposes; and
(5) The evidence must establish by the clear and convincing standard that the petitioner is innocent of the offense for which the petitioner was convicted.
V.C. Affidavit
Roby argues that he is due relief based on V.C.’s 2003 affidavit.
The three factual assertions in V.C.’s affidavit fail under the statutory test because they are cumulative, impeaching, and do not clearly and convincingly prove Roby’s actual innocence. See Minn.Stat. § 590.01, subd. 4(b)(2). That V.C. believes that Dunn-Simmons was the shooter is a bare assertion not supported by fact. V.C. was not present at the time of the murder and he offers no facts or reasoning for why he now believes that Dunn-Simmons was the shooter. Moreover, because Roby was convicted of aiding and abetting the murder, V.C.’s opinion that someone else was the shooter does not provide clear and convincing evidence of Roby’s innocence. See Minn.Stat. § 609.05 (2010); see, e.g., State v. Hawes,
V.C.’s statement that Fisher attempted to sell him the weapon used in the murder does not clearly and convincingly prove Roby’s innocence. Roby has made no
Finally, V.C.’s statement that he believes that A.J. was under the influence of drugs just after the murder does not clearly and convincingly prove Roby’s actual innocence. That A.J. was on drugs during the murder could be used to impeach A.J.’s credibility. But A.J.’s testimony largely mirrored thе statements that Roby gave to the police about his involvement in the shooting. Like A.J., Roby stated that he struggled for the gun with McIntyre and Dunn-Simmons, and that Dunn-Simmons fired the fatal shot. In sum, Roby’s claim based on V.C.’s affidavit does not satisfy the newly discovered evidence exception found in subdivision 4(b)(2).
T.B. ⅛ Affidavit
Roby argues that he is due relief based on T.B.’s 2007 affidavit. T.B. is one of Roby’s close relatives. In her affidavit, T.B. states that L.Y. told T.B. that L.Y. testified falsely that witnesses did not use drugs on the morning of the murder and that witnesses did not talk about the murder after it happened. T.B. also states that L.Y. told her that no one saw the actual shooting. Roby argues that this affidаvit would make a court “reasonably well-satisfied” that L.Y.’s testimony at trial was false, and that without L.Y.’s false testimony, the jury might have reached a different conclusion.
The claim based on T.B.’s affidavit does not satisfy the newly discovered evidence test because T.B.’s affidavit is impeaching and does not prove Roby’s actual innocence. See Minn.Stat. § 590.01, subd. 4(b)(2). First, all of the statements in T.B.’s affidavit would be inadmissible hearsay unless L.Y. actually testified to them. See Dobbins v. State,
C.H. Affidavit
Roby argues that he is due relief based on C.H.’s 2008 affidavit. C.H. is another one of Roby’s close relatives. In her affidavit, C.H. states that Roby’s brother, C.T., testified falsely at Roby’s trial. Specifically, C.H. states that C.T. lied about being present when Roby gave a gun to Dunn-Simmons before the shooting
The evidence in C.H.’s affidavit fails the newly discovered evidence test in the statute because it cannot, as a matter of law, establish Roby’s innocence by clear and convincing evidence. See Minn.Stat. § 590.01, subd. 4(b)(2). This is so because C.T.’s statements to C.H. are inadmissible hearsay, and C.T. is dead. Roby, however, аrgues that C.T.’s statements would be admissible because he made the statement in belief of his impending death. While C.H. states that C.T. made the statements in the affidavit to her while he was dying of colon cancer, the statements do not constitute “dying declarations” because they do not “[concern] the cause or circumstances of what the declarant believed to be impending death.” See Minn. R. Evid. 804(b)(2); State v. Eubanks,
In sum, we hold that Roby’s claims based on the V.C., T.B., and C.H. affidavits do not satisfy the newly discovered evidence exception in subdivision 4(b)(2).
2.
Roby also argues, generally, that all of his claims have merit and should be considered in the interests of justice. The elements necessary to establish the interests of justice exception are (1) “the petition is not frivolous,” and (2) the petition should be considered “in the interests of justice.” Minn.Stat. § 590.01, subd. 4(b)(5). In Gassier, we were asked to interpret the phrase “in the interests of justice.”
We explained that, in the context of the rule announced in State v. Knaffla,
Viewing the “interests of justice” language of Minn.Stat. § 590.01, subd. 4(b)(5), in light of the сase law outlined above, we concluded that Gassler’s claim based on the State’s use of Composite Bullet Lead Analysis did “not fall into the category of exceptional cases requiring that we set aside Minn.Stat. § 590.01, subd. 4(a)’s, time bar in the interests of justice.” Gassler,
We reach the same conclusion in this case. As we concluded in Roby’s direct appeal, the evidence presented at trial was “overwhelmingly persuasive of [Robyj’s guilt.” Roby I,
II.
We turn next to Roby’s argument that we should apply the doctrine of equitable tolling to, in effect, revive his untimely claims. He urges us to adopt the equitable tolling standard applied to the federal habeas corpus statute. See Holland v. Florida, — U.S. -,
As noted above, in order for equitable tolling to apply under the Holland standard, the petitioner must have diligently pursued his rights, but some “extraordinary circumstance” prevented him from vindicating those rights. Holland,
In Valverde, the Second Circuit held that equitable tolling might apply to an untimely filed habeas corpus petition when prison personnel committed misconduct by wrongfully confiscating a prisoner’s completed habeas corpus petition, resulting in the prisoner filing his petition 12 days late.
Roby is not arguing that a prison official intentionally targeted him or took some action that was aimed at preventing him from filing his petition on time. Roby is arguing that general policies of the prison made it harder for him to file his petition on time. Fеderal courts routinely recognize that the difficulties of prison life are not extraordinary circumstances warranting equitable tolling. See, e.g., Earl v. Fabian,
In addition to Roby’s failure to establish that the general prison policies constitute an “extraordinary circumstance” under the
Even assuming that the prison policy at issue constituted an extraordinary circumstance, Roby offers, and the record contains, no basis to toll the limitations period beyond September 2007, when Roby received the legal materials. Because Roby did not file his petition until well over a year later, he cannot be said to have been diligently pursuing his rights. Accordingly, even if the equitable tolling doctrine applied in Holland applies to Minn.Stat. § 590.01, subd. 4, we hold that Roby is not entitled to relief through application of the doctrine.
Affirmed.
Notes
. Roby admitted he had his hand on thе gun the first time it fired. There was a discrepancy in the testimony at trial as to how many times the gun was fired. Fisher testified that the gun was fired four times, and the police subsequently found one bullet lodged in McIntyre’s head and three bullet holes in the floor.
. For purposes of this case we assume, without deciding, that a claim arises when a petitioner subjectively becomes aware of the basis for the claim.
. The postconviction court’s order cites subdivision 4(b) throughout its discussion of when the subdivision 4(b) claims arose, but this citation appears to be a typographical error. Given the court’s analysis of when Roby's claims arose, it is clear that the court was applying subdivision 4(c).
. The postconviction court did not analyze whether these three claims satisfied an exception under subdivision 4(b). The court instead concluded that the claims failed on the merits.
. The postconviction court found that the V.C. affidavit failed on the merits under the newly discovered evidence test articulated in Rainer v. State,
. As it did in its analysis of the claim based on the V.C. affidavit, the postconviction court applied the Rainer test to assess the merits of Roby’s claim based on T.B.’s affidavit. The court should have applied the test from Minn. Stat. § 590.01, subd. 4(b)(2). Moreover, even had the court properly reached the merits of this claim, the Rainer test would not be applicable. When assessing the merits of a claim based on false or recanted testimony, we apply the test set forth in Larrison v. United States,
. A careful review of C.T.’s trial testimony reveals that he did not, in fact, testify that
. In Dobbins, we held that an evidentiary hearing may still be held based on the hearsay contents of an affidavit.