2011-M-193            Gary L. Roby, Appellant, vs. State of Minnesota, Respondent.

Appellant Gary Roby was convicted of aiding and abetting the crimes of first-degree pre-meditated 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 in 1990.  In this case, Roby appeals the denial of his third petition for post-conviction relief.  Because we conclude that the post-conviction court properly denied Roby’s petition, we affirm

First, Minnesota Statutes § 590.01, subd. 4(c) (2010), bars the newly discovered evidence and interest of justice claims that arose more than 2 years before appellant filed his post-conviction petition.

Second, appellant’s remaining claims are barred by Minn. Stat. § 590.01, subd. 4(a) (2010), because they do not satisfy either the newly discovered evidence exception in Minn. Stat. § 590.01, subd. 4(b)(2) (2010), or the interests of justice exception in Minn. Stat. § 590.01, subd. 4(b)(5) (2010).

Third, because appellant did not demonstrate that he was diligently pursuing his rights and that an extraordinary circumstance prevented him from filing his post-conviction petition within the time limits of Minn. Stat. § 590.01, subd. 4 (2010), he is not entitled to relief on the basis of equitable tolling.

Gildea (Page, Paul Anderson, Meyer, Barry Anderson, Dietzen and Stras)

[MURDER] [GILDEA].