Sakariya Ali Aden, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0474

Sakariya Ali Aden, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 26, 2019
Affirmed
Worke, Judge

Rice County District Court
File No. 66-CR-12-655

Abdulwahid Sheikh Osman, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, St. Paul, Minnesota; and

John L. Fossum, Rice County Attorney, Terence Swihart, Assistant County Attorney,
Faribault, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the denial of his petition for postconviction relief, arguing that:
(1) the district court erred in concluding that his petition was untimely; (2) his counsel’s

2
misadvice regarding the immigration consequences of his guilty plea entitles him to plea
withdrawal; and (3) the district court judge should have recused herself based on
appellant’s allegation that she had erred in the prior proceedings. We affirm.
FACTS
On June 25, 2012, appellant Sakariya Ali Aden pleaded guilty to gross-
misdemeanor domestic assault. Aden also signed a rule 15 plea petition. The district court
examined Aden on whether he had an opportunity to question his attorney about the plea
agreement, and his attorney questioned Aden if he understood that his guilty plea could
affect his immigration status. On August 23, 2012, the district court sentenced Aden to
365 days in jail, stayed for two years.
On December 4, 2018, the United States Department of Homeland Security began
removal proceedings against Aden, a native of Somalia and lawful permanent resident of
the United States, due to his conviction in the present matter. On January 26, 2019, Aden
filed a postconviction petition to withdraw his guilty plea and vacate his sentence due to
the ineffective assistance of his counsel, and the district court’s failure to comply with the
requirement in Minn. R. Crim. P. 15.02, subd. 1(3), that Aden be questioned as to whether
he understood that his plea “may result in deportation, exclusion from admission to the
United States, or denial of naturalization as a United States citizen.”
Aden claimed that, in an off -the-record conversation with his attorney prior to
entering his guilty plea, he was misadvised that he “would have no immigration issues”
because he was not pleading guilty to a felony. The district court denied the petition as

3
untimely, and therefore did not reach the merits of any of Aden’s asserted bases for relief.
This appeal followed.
D E C I S I O N
Timeliness
Aden asserts that the district court erred by finding that his postconviction petition
was barred by the statute of limitations, because he filed it within two y ears of receiving
notice of the removal proceedings. “We review the denial of a petition for postconviction
relief for an abuse of discretion. We review legal issues de novo, but on factual issues our
review is limited to whether there is sufficient evidence in the record to sustain the
postconviction court’s findings.” Matakis v. State, 862 N.W.2d 33, 36 (Minn. 2015)
(citation and quotation omitted). “A petition that is filed outside the statute of limitations
may be summarily denied, unless a statutory exception applies.” Anderson v. State, 913
N.W.2d 417, 423 (Minn. 2018) (citation omitted).
Aden did not appeal his conviction. Therefore, his petition for postconviction relief
must have been filed within two years of the entry of his judgment of conviction on
August 23, 2012. Minn. Stat. § 590.01, subd. 4(a)(1) (2018). A district court may hear a
petition filed beyond two years of entry of judgment only if “the petitioner establishes to
the satisfaction of the [district] court that the petition is not frivolous and is in the interests
of justice.” Id., subd. 4(b)(5). A petition filed under the interests -of-justice exception
“must be filed within two years of the date the claim arises.” Id., subd. 4(c). Aden asserts
that his petition satisfies the requirements of the interests-of-justice exception.

4
The district court found that Aden’s petition was not frivolous in light of the
deportation proceedings. However, without specifying an exact date, 1 the district court
found that Aden’s claim arose “more than two years prior to bringing his petition,” and
thus denied his petition as untimely without reaching its merits.
Aden claims that he satisfies the interests-of-justice exception because his attorney’s
ineffective assistance and the district court’s failure to follow rule 15.02 caused him to be
unaware of the immigration consequences of his guilty plea until he was served with notice
of the removal proceedings. However,
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 identical 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 simply cannot have caused the
petitioner to miss the 2-year time limit in subdivision 4(a). . . .

Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012). All of the actions that Aden asserts
entitle him to relief occurred during his plea hearing on June 25, 2012. Because the alleged
errors that Aden asserts establish the interests-of -justice exception to the statute of
limitations are identical to the substance of his petition, they do not satisfy the exception
to the limitations period. See also Jackson v. State, 929 N.W.2d 903, 906-07 (Minn. 2019)

1 The district court first discussed the arguments of the parties regarding when Aden
objectively should have known that the United States was deporting individuals to Somalia.
The district court then proceeded to reject Aden’s claim that he was unaware of the
immigration consequences of his plea at the time of sentencing. The district court
concluded: “Applying the two year time limit objectively, [Aden] knew or should have
known that he had a claim at a time more than two years prior to bringing his petition for
postconviction relief” without specifying a precise date for when the claim arose.

5
(stating that a claim for ineffective assistance of counsel relating to advice given at a plea
hearing did not set forth a reason for delay separate from the substance of the petition, and
therefore the interests-of-justice exception did not apply).
Even if Aden’s claims satisfy the interests-of-justice exception, they are time-barred
under that provision as well because he did not file his petition within two years of the date
the claim arose. Aden argues that the district court erred in finding that his petition was
untimely because he filed it within two years of receiving notice of the removal
proceedings on December 4, 2018. “[A] petitioner’s claim under Minn. Stat. § 590.01,
subd. 4(b)(5), arises when the petitioner knew or should have known that he had a claim.”
Sanchez, 816 N.W.2d at 560. This is an objective standard. Id. at 558. “The determination
of when [a petitioner’s] interests-of -justice claim arose is a question of fact. On appeal
from a postconviction court’s denial of relief, we apply the clearly erroneous standard to
the court’s findings of fact.” Id. at 560.
Aden asserts that due to the ineffective assistance of his counsel, and the district
court’s failure to strictly comply with rule 15.02, he did not become aware of the basis to
vacate his plea until served with notice of the removal proceedings in December 2018.
This, however, sets forth a subjective, as opposed to objective, basis for when his claim
arose. Aden asserts that because his claim is premised upon the ineffective assistance of
his counsel, he could not objectively have k nown of his basis for relief until removal
proceedings were initiated. However, this argument has already been denied in the cases
upon which Aden relies.

6
Aden relies in part on language from this court’s unpublished opinion in Tengben v.
State, but that case directly undermines Aden’s assertion that under an objective standard
his claim arose when he learned of the immigration consequences of his guilty plea via the
initiation of removal proceedings. No. A12-1539, 2013 WL 1395618 (Minn. App. Apr. 8,
2013). In Tengben, the appellant was unrepresented when he pleaded guilty , the rule 15
plea petition that he signed did not contain the immigration advisory, and the district court
failed to advise him of the immigration consequences of his plea. Id. at *2.
This court held that under the objective knew-or-should-have- known standard,
Tengben’s claim arose on the date he entered his invalid guilty plea. Id. at *4. “[T]he only
scenario in which [Tengben’s] postconviction petition is timely under the interests-of -
justice exception is if his claim arose on the date he learned that his plea to domestic assault
would have immigration consequences. . . . But Sanchez soundly rejected a subjective,
actual-knowledge standard. . . .” Id. at *4 n.3. While Tengben is not binding precedent, it
directly supports the district court’s determination that Aden’s claim objectively arose at a
date prior to his receipt of actual notice of the initiation of removal proceedings against
him, and therefore Aden’s reliance on Te ngben is misplaced. See also Sanchez, 816
N.W.2d at 560 (declining to apply subjective actual-knowledge standard to interests -of-
justice claim involving ineffective assistance of counsel). Objectively, all of the actions
by his attorney and the district court which Aden claims entitle him to plea withdrawal
occurred on June 25, 2012. Therefore, the district court did not err in determining that
Aden’s postconviction petition was untimely.

7
Furthermore, even if this court were to base the analysis of when Aden’s claim arose
upon the timing of deportations to Somalia by the federal government, his claim would still
be outside the two-year limitation of the interests-of-justice exception. As pointed out by
the district court, Aden “agrees that by October 2016— more than two years before filing
his [p]etition—deportations to Somalia were occurring.” Therefore, by any potential
objective measure, Aden’s petition is untimely.
Ineffective assistance of counsel
Because the district court did not err in dismissing Aden’s postconviction petition
as untimely, we do not reach Aden’s claim that he was entitled to plea withdrawal based
upon the alleged ineffective assistance of his counsel. See James v. State, 699 N.W.2d 723,
727 (Minn. 2005) (“When a criminal defendant seeks to withdraw a guilty plea . . . after
the defendant has been sentenced, the motion to withdraw the plea must be raised in a
petition for postconviction relief.”).
Recusal
Aden argues that the district court judge should have recused herself from hearing
his postconviction petition because one of his asserted bases for relief was the district court
judge’s failure to question him regarding his rule 15.02 acknowledgement. Aden did not
make a motion in district court to remove the judge. “A judicial officer’s authority to
conduct a trial is a legal question that we review de novo.” State v. Irby, 848 N.W.2d 515,
517-18 (Minn. 2014) (apply ing de novo review on appeal despite failure to object to the
judge presiding at trial because the issue involves a “fundamental question of judicial
authority”).

8
“A judge must not preside at a trial or other proceeding if disqualified under the
Code of Judicial Conduct.” Minn. R. Crim. P. 26.03, subd. 14(3). “A judge shall disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably be
questioned. . . .” Minn. Code Jud. Conduct Rule 2.11(A). “A judge is disqualified for a
lack of impartiality under Rule 2.11(A) if a reasonable examiner, from the perspective of
an objective layperson with full knowledge of the facts and circumstances, would question
the judge’s impartiality.” Troxel v. State, 875 N.W.2d 302, 314 (Minn. 2016) (quotations
omitted).
Aden argues that the district court judge’s impartiality would reasonably have been
questioned because the judge did not address the merits of his a ssertion that she failed to
comply with rule 15.02. However, a district court may summarily deny an untimely
petition, unless an exception applies. Anderson, 913 N.W.2d at 423. Here, the district
court thoroughly analyzed whether an exception to the statute of limitations applied, and
after concluding that no exception applied, summarily dismissed the petition as barred by
the statute of limitations. Therefore, there is no basis to Aden’s assertion that the district
court acted with the appearance of bias in failing to address the merits of his claim.
Affirmed.