Sahal Osman Shidane, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0897

Sahal Osman Shidane, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed March 20, 2017
Affirmed
Schellhas, Judge

Olmsted County District Court
File No. 55-CR-11-2813

P. Chinedu Nwaneri, Nwaneri Law Firm, PLLC, St. Paul, Minnesota (for appellant)

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

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County Attorney,
Rochester, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Kirk, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the denial of his pe tition for postconviction relief, arguing that
his untimely petition should be considered un der the interests-of-justice exception. We
affirm.

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FACTS
In February 2011, Sahal Shidane sexually assaulted a 15-year-old girl who was
helping him back into his wheelchair after he used the restroom at the Mayo Clinic. The
state charged Shidane with fourth-degree criminal sexual conduct in violation of Minnesota
Statutes section 609.345, subdivision 1(b) (2010). Shidane pleaded guilty on June 8, 2012.
Because Shidane is not a U.S. citizen, the dist rict court warned him at the plea hearing,
“[W]e don’t know what consequences, if any, will result as a result of this plea of guilty.”
Shidane responded that he nevertheless wi shed to plead guilty. Shidane’s signed plea
petition also indicated that he understood th at his plea could “r esult in deportation,
exclusion from admission to the United States of America or denial of citizenship.” At
sentencing on August 30, 2012, the district court granted Shidane a stay of imposition and
placed him on probation.
Over three years later, on December 31, 2 015, Shidane moved the district court to
withdraw his plea, arguing that his counsel pr ovided ineffective assistance by failing to
warn him about “the mandatory immigration consequences of his guilty plea.” The district
court treated the motion as a petition for pos tconviction relief and summarily denied the
petition as time-barred.
This appeal follows.
D E C I S I O N
A person claiming that his conviction or se ntence violated his constitutional rights
may file a petition for postconviction relief. Mi nn. Stat. § 590.01, subd. 1 (2014). “When
a criminal defendant seeks to withdraw a guilty plea under Rule 15.05, after the defendant

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has been sentenced, the motion to withdraw the plea must be raised in a petition for
postconviction relief.” James v. State, 699 N.W.2d 723, 727 (Minn. 2005). We review the
denial of a postconviction petition for an abuse of discretion. Swaney v. State, 882 N.W.2d
207, 214 (Minn. 2016). The district court’s legal determinations are reviewed de novo, and
its fact-findings are reviewed for clear error. Id.
A petition for postconviction relief must be f iled within two years of the later of
“the entry of judgment of conviction or sentence if no direct appeal is filed” or “an appellate
court’s disposition of petitioner’s direct appeal.” Minn. Stat . § 590.01, subd. 4(a)(1)–(2)
(2014). Because Shidane did not directly appeal his convic tion, he had two years from
sentencing on August 30, 2012, to file a postconviction petition. See id., subd. 4(a)(1).
Shidane filed his petition on December 31, 2015, over a year after the two-year time limit
had expired. Shidane’s petition is therefore untimely.
A petition filed after the two-year time limi t may nevertheless be considered if it
satisfies one of five statutory exceptions. Minn. Stat. § 590.01, subd. 4(b) (2014). Shidane
argues that his petition may be considered un der the interests-of-justice exception, which
requires him to show “that the petition is not fri volous and is in the interests of justice.”
Minn. Stat. § 590.01, subd. 4(b)(5). The Minnesota Supreme Court has explained that
the interests-of-justice exception is triggered by an injustice
that caused the petitioner to miss the primary deadline in
subdivision 4(a), not the substance of the petition. When the
only injustice claimed is identic al to the substance of the
petition, and the substance of the petition is based on
something that happened before or at the time a conviction
became final, the injustice si mply cannot have caused the
petitioner to miss the 2–year time limit in subdivision 4(a), and

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therefore is not the type of injustice contemplated by the
interests-of-justice exception in subdivision 4(b)(5).

Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012).
Shidane has not alleged an in justice that caused him to miss the two-year time limit.
Rather, Shidane alleges that hi s attorney was ineffective for failing to adequately inform
him about the immigration consequences of his guilty plea. Because this alleged injustice
is identical to the su bstance of the petition and occurred at the time of conviction, the
interests-of-justice exception is unavailable. See id.
Even if Shidane could satis fy the substance of the interests-of-justice exception, his
invocation of the exception woul d nevertheless still be barre d under Minnesota Statutes
section 590.01, subdivision 4(c) (2014). A postconviction petiti on invoking a time-bar
exception must be filed within two years of the date the claim arose. Minn. Stat. § 590.01,
subd. 4(c); see also Yang v. State , 805 N.W.2d 921, 925 (Min n. App. 2011) (defining
“claim” as “an event that supports a right to relief under the asserted exception”), review
denied (Minn. Aug. 7, 2012). And a claim “arises when the petitioner knew or should have
known that he had a claim.” Sanchez, 816 N.W.2d at 560.
Shidane argues that his interests-of-justice claim arose in May 2014. That month the
Social Security Administration sent him a le tter informing him that he would eventually
stop receiving benefits unless he became “a U.S. citizen or an eligible alien under the law.”
Shidane asserts that he then consulted with an immigration attorney and learned that he
could be deported from the United States becau se his criminal-sexual-conduct conviction
is an “aggravated felony” un der 8 U.S.C. § 1101(a)(43)(A) (2012). But whether fourth-

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degree criminal sexual conduct is an aggravated felony under federal law could have been
discovered at the time of his conviction on J une 8, 2012. Shidane’s interests-of-justice
claim therefore arose on that date. See Sanchez, 816 N.W.2d at 558 (h olding that when a
claim arises is an objective standard, not a “subjective, actual kno wledge standard”).
Because Shidane filed his petition more than two years after his claim arose, his invocation
of the interests-of-justice exception is also time-barred under subdivision 4(c).
Affirmed.