Bunrerth Mao, 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This opinion will be unpublished and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
A19-1265

Bunrerth Mao, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed April 27, 2020
Affirmed
Slieter, Judge

Scott County District Court
File No. 70-CR-13-2273

Maria T. Miller, Bloomington, Minnesota (for appellant)

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

Ronald Hocevar, Scott County Attorney, Todd P. Zettler, Assistant County Attorneys,
Shakopee, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Smith, Tracy M., Judge;
and Slieter, Judge.
U N P U B L I S H E D O P I N I O N
SLIETER, Judge
Appellant Bunrerth Mao argues the district court abused its discretion by denying
his peti tion for postconviction relief. The interests -of-justice exception does not apply
because the injustice alleged by Mao, which led to his missing of the postconviction filing

2
deadline, is the same as his substantive postconviction relief sought. Therefore, the district
court did not abuse its discretion in denying Mao’s petition and we affirm.
FACTS
In January 2013 , following an incident involving his girlfriend, t he state charged
Bunrerth Mao with felony domestic assault, in violation of Minn. Stat. § 609.2242, subd. 1
(2012). Mao pleaded guilty to the charge and signed a standard plea petition in September
2013 which included the following language, “[m]y attorney has told me and I understand
that if I am not a citizen of the United States this plea of guilty may result in deportati on,
exclusion from admission to the United States of America or denial of citizenship.” The
district court sentenced Mao on May 30, 2014 to a 30-month prison term, with execution
stayed for five years during a period of probation.
Mao is not a United Stat es citizen, but has been a legal permanent resident of the
United States since 1984. As a result of his conviction, deportation proceedings began and
Mao first appeared in immigration court in September 2018. Mao was granted a discharge
from probation on May 1, 2019.
Mao petitioned for postconviction relief on June 18, 2019, asking the district court
to vacate his conviction in the interests of justice pursuant to Minn. Stat. § 590.01,
subd. 4(b)(5) (2018). The district court denied Mao’s petition. Mao appeals.
D E C I S I O N
Appellate courts review a denial of a postconviction petition for an abuse of
discretion. See Erickson v. State , 842 N.W.2d 314, 318 (Minn. 2014). A district court
abuses its discretion when it has “exercised its discretion in an arbitrary or capricious

3
manner, based its ruling on an erroneous view of the law, or made clearly erroneous factual
findings.” Reed v. State, 793 N.W.2d 725, 729 (Minn. 2010).
A petition for postconviction relief must be filed within two years of “the en try of
judgment of conviction or sentence if no direct appeal is filed.” Minn. Stat. § 590.01,
subd. 4(a)(1) (2018). The district court may hear a petition for postconviction relief filed
outside this two-year time frame if the petitioner satisfies one of five statutory exceptions.
See Minn. Stat. § 590.01, subd. 4(b) (2018).
Mao asserts that his petition is proper pursuant to the interests-of-justice exception,
which allows consideration of an untimely petition if the “petition is not frivolous and is in
the interests of justice.” Minn. Stat. § 590.01, subd. 4(b)(5). Claims made pursuant to this
exception “must be filed within two years of the da te the claim arises. ” Minn. Stat.
§ 590.01, subd. 4(c) (2018). However, and as explained below, the district court properly
concluded that the interests-of-justice exception is not available to provide Mao relief.
The Minnesota supreme court has explained:
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), and
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) (emphasis added). Mao alleges in
his postconviction petition that he missed the primary deadline for filing under subdivision

4
4(a) because his attorney did not advise him of the immigration consequences of his guilty
plea. The district court concluded that because this alleged injustice is identical to the
substance of Mao’s petition for postconviction relief, the petition, consistent with the ruling
in Sanchez, must be denied.
We agree with the d istrict court. Mao alleges that his attorney was ineffective for
failing to adequately inform him of the immigration consequences of entering his plea
which, ultimately, led to the immigration action commenced in 2018. Because this alleged
injustice is identical to the substance of his postconviction petition, the interests-of-justice
exception is not available.1
Moreover, and to the extent a viable interest s-of-justice claim had been raised,
Mao’s petition would still be time -barred pursuant to Minn. Stat. § 590.01, subd. 4(c)
because his claim arises when he knew or should have known of the claim, which is May
2014. Subdivision 4(c) requires that a petitioner must invoke the interests -of-justice
exception within two years of the date the interests-of-justice claim arises. See Minn. Stat.
§ 590.01, subd. 4(c); Rickert v. State, 795 N.W.2d 236, 242 (Minn. 2011). Courts apply
an objective standard when determining the date the claim arises. Sanchez, 816 N.W.2d at
558. An interests-of-justice claim therefore arises “when the petitioner knew or should
have known that he had a claim.” Id. at 560.

1 Raised for the first time during oral argument , Mao’s counsel cited Ramirez-Barajas v.
Sessions, 877 F.3d 808 (8th Cir. 2017) , to distinguish Mao’s case from a number of
unpublished decisions from our court which have affirmed the denial of postconviction
relief based upon Sanchez. We find no distinction exists following this 8th circuit case and
it does not change our analysis.

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Mao’s signed plea petition stated that his attorney informed him that his guilty plea
may lead to deportation if he was not a United States citizen . In addition, Mao told the
district court at his plea hearing in May 2014 that he understood everything in the plea
petition and that he went over the petition with his attorney before signing it. Based on
this record evidence, Mao’s interests-of-justice claim arose at the time of sentencing in
2014. Mao’s Ju ne 2019 postconviction petition is therefore untimely pursuant to
subdivision 4(c).
We recognize that the law as it exists results in an inability for Mao to substantively
present his interests-of-justice postconviction petition to the district court, but we are bound
by supreme court precedent. State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018). Mao has
not shown that the district court erred in denying his petition for postconviction relief.
Affirmed.