2010-M-156             Robert Daniel Gassler, Jr., petitioner, Appellant, vs. State of Minnesota, Respondent.

MAJORITY:  In 1992, appellant, Robert Daniel Gassler, Jr., was found guilty of first-degree murder in Todd County District Court for his involvement in the shooting death of Dale Yungk and sentenced to life in prison.  Along with other evidence, the State presented the testimony of a Federal Bureau of Investigation (FBI) agent who, relying on Composite Bullet Lead Analysis (CBLA), testified that a pellet recovered from Yungk’s body came from a box of ammunition tied to Gassler.  Gassler’s conviction was affirmed on September 3, 1993, and consequently became final on December 2, 1993.  See State v.

Gassler, 505 N.W.2d 62 (Minn. 1993).

 In 1997, a post-conviction court denied, without an evidentiary hearing, Gassler’s pro se petition for post-conviction relief, and in 1999 we affirmed the post-conviction court.  Gassler v. State, 590 N.W.2d 769 (Minn. 1999).

In 2005, the legislature amended the post-conviction statute, Minn. Stat § 590.01 (2004), to provide, “No petition for post-conviction 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, 1097-98. 

With regard to the effective date of the amendment, the legislature provided, “Any person whose

conviction became final before August 1, 2005, shall have two years after the effective date of this act [August 1, 2005] to file a petition for post-conviction relief.”  Id.  The legislature also created five exceptions to the two-year statute of limitations for filing a petition for post-conviction relief.  The second exception applies to allegations of newly discovered evidence that could not have been ascertained by the exercise of due diligence, that is not cumulative, that is not for impeachment, and that establishes by clear and convincing evidence that the petitioner is innocent.  Minn. Stat. § 590.01, subd. 4(b)(2) (2008).  The fifth exception applies when “the petitioner establishes to the satisfaction of the court that the petition is not frivolous and is in the interests of justice.”  Minn. Stat. § 590.01, subd. 4(b)(5) (2008).

In November 2007, Gassler saw a news report that indicated that CBLA evidence cannot establish the origin of bullets.  On March 31, 2008, Gassler filed a second petition for post-conviction relief arguing that he had been convicted on the basis of false evidence.  Gassler invoked the newly discovered evidence and interests of justice exceptions to the two-year statute of limitations for filing a petition for post-conviction relief.  Gassler also filed a discovery motion, seeking to compel the State to obtain and disclose “FBI Laboratory principal and auxiliary examiner benchnotes” created during the CBLA testing.

The post-conviction court denied Gassler’s discovery motion, explaining that the State had no duty to disclose records that it did not possess.  The post-conviction court also summarily denied Gassler’s second petition for post-conviction relief.  The post-conviction court explained that Gassler’s petition was barred by the two-year statute of limitations and no exception was applicable.  Specifically, the post-conviction court held that the newly discovered evidence exception did not apply because Gassler failed to prove his innocence by clear and convincing evidence.  Concluding that Gassler’s petition fell “squarely within the purview of the „newly discovered evidence‟ exception,” the post-conviction court did not reach the issue of whether Gassler satisfied the requirements of the interests of justice exception.  Gassler appealed.

First, an appellant who fails to establish his innocence by the clear and convincing standard as required by Minn. Stat. § 590.01, subd. 4(b)(2) (2008), is not entitled to have his petition for post-conviction relief considered under the newly discovered evidence exception to the time bar set out in Minn. Stat. § 590.01, subd. 4(c) (2008).

Second, the post-conviction court erred when it failed to consider whether Minn. Stat. § 590.01, subd. 4(b)(5)’s(2008), interests of justice exception to the statutory time bar permitted appellant’s post-conviction petition to be heard.

Third, the interests of justice do not require that appellant’s untimely petition for post-conviction relief be considered.

Affirmed.

CONCUR:  Justices Gildea and Dietzen opined:  “I agree with the majority that Gassler’s petition for post-conviction relief is time barred under Minn. Stat. § 590.01, subd. 4 (2008).  And I join Part I of the majority opinion, in which the majority concludes that Gassler is not entitled to have his petition

for post-conviction relief considered under the newly discovered evidence exception to the statutory time bar. 

But I disagree with the majority insofar as it concludes that the post-conviction court should have also considered whether Gassler’s petition met the interests of justice exception in section 590.01, subdivision 4.  In my view, when a petition alleges that it falls within one of the four specific exceptions set forth in subdivision 4(b), the residual interests of justice exception cannot apply.

Page  (Paul Anderson, Meyer, and Barry Anderson)

               Concur:  Gildea and Dietzen

               Took no part:  Stras

               [MURDER]