Dante Christopher Horton, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0061

Dante Christopher Horton, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed September 27, 2021
Affirmed
Slieter, Judge

Hennepin County District Court
File No. 27-CR-13-21926

Frederick J. Goetz, Goetz & Eckland P.A., Minneapolis, Minnesota (for appellant)

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

Michael O. Freeman, Hennepin County Attorn ey, Sarah J. Vokes, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Considered and decided by Worke, Presidi ng Judge; Cochran, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
In this appeal from an order denying postconviction relief, appellant argues that the
district court erred by concluding that his petition was time-barred pursuant to Minn. Stat.
§ 590.01, subd. 4 (2020). Appellant contends that the newly discovered evidence could
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not have been ascertained by the exercise of due diligence within the statut ory two-year
time period. However, appellant’s newly di scovered evidence was discovered within the
statutory two-year time period. As a result , we do not reach his argument that the claim
did not arise until he obtained “all the evidence necessary” to support his claim for relief.
We affirm.
FACTS
The facts underlying this appeal stem from a 2013 shooting during which the victim,
D.T., identified to law enforcement appellant Dante Christopher Horton as the person who
shot him. State v. Horton, No. A15-0736, 2016 WL 2842828, at *1 (Minn. App. May 16,
2016), rev. denied ( M i n n . J u l y 1 9 , 2 0 1 6 ) . O n t h e day of the shooting, D.T.’s sister
identified to law enforcement appellant ente ring D.T.’s apartment building immediately
before D.T. was shot. Id. D.T. and his sister testified c onsistent with these statements
during appellant’s jury trial.
Respondent State of Minnesota charged appellant with first-degree and
second-degree attempted murder and felony possession of a firearm. Id. The jury found
appellant guilty of each charge and he was sentenced to 60 months’ imprisonment for
unlawful possession of a firearm and 230 months’ imprisonment for attempted first-degree
murder. Id.
This court affirmed his convictions in May 2016 and the Minnesota Supreme Court
denied review. Id. Appellant filed a petition for a writ of certiorari to the United States
Supreme Court, which was denied on February 21, 2017. Id.
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In May or June of 2017, appellant learned from prison inmates who “[appellant]
didn’t know . . . personally” that D.T. wa s considering recanting his identification of
appellant as the shooter. In August or Septem ber of that year, appellant heard this “same
information” from other prison inmates whom “[he] knew a little bit better.” In December
2017, appellant’s family hired a private inve stigator who interviewe d D.T. in February
2018, though no results from that interview are in the re cord. In August of 2018,
appellant’s family obtained counsel for a ppellant. Appellant’s counsel “informed
[appellant] that the investigation . . . was insufficient” and counsel obtained a new private
investigator in September 2018 for the purpose of obtaining a sworn affidavit from D.T.
The new investigator had difficulty ma intaining contact with D.T. but was
ultimately able to meet and interview D.T. on November 7, 2018. After this interview, the
investigator prepared an a ffidavit. D.T. signed the affidavit on November 9, 2018,
affirming that “[he] never saw the individual who shot [him].”
After obtaining D.T.’s signature, the inve stigator “was instructed” by counsel to
speak with D.T.’s sister so as to confirm her “knowledge or testimony.” The investigator
tried to contact D.T. in orde r to obtain his sister’s cont act information but again had
“difficulty reaching him.” After eventua lly obtaining her contact information, the
investigator also had difficulty communicating with D.T.’s sister, despite repeated efforts.
The investigator learned on February 19, 2019 that she “didn’t want to be involved in any
way.”
On July 29, 2019, appellant filed his petition for postconviction relief alleging newly
discovered evidence based upon victim recantation. The district court held an evidentiary
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hearing limited to the issue of whether appella nt’s petition was time-barred. The district
court concluded that appellant’s postconviction petitio n was time-barred because it was
filed beyond the statutory deadline. This appeal follows.
DECISION
A petition for postconviction reli ef must be filed within two years of the entry of
judgment of conviction or the final appellate disposition of a defendant’s appeal, whichever
occurs last. Minn. Stat. § 590.01, subd. 4. Postconviction relief beyond that date is time-
barred unless one of five statutory exceptions is met. Id., subd. 4(b)(1)-(5).
Appellate courts review the denial of a postconviction petition for an abuse of
discretion. Colbert v. State, 870 N.W.2d 616, 621 (Minn. 2015). We review legal issues
de novo and factual findings for clear error. Id. A district court “abuses its discretion when
its decision is based on an erroneous view of the law or is against logic and the facts in the
record.” State v. Nicks, 831 N.W.2d 493, 503 (Minn. 2013) (quotation omitted).
The district court determined appella nt’s statutory time period for seeking
postconviction relief expired on February 21, 2019, and that appella nt’s postconviction
petition—filed on July 29, 2019—was untimely. The district court stated that “there is
little excuse suggested for the de lays within the two-year pe riod,” and that appellant did
not timely act to obtain the affidavits from D.T.
Appellant does not dispute that his petition was filed more than two years after the
final appellate disposition of his case. He relies on the newly-discovered-evidence
exception to the two-year time bar in Minn. Stat. § 590.01, subd. 4(b)(2). The newly-
discovered-evidence exception allows a district court to consider the merits of an untimely
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petition for postconviction relief if “the petitioner alleges the existence of newly discovered
evidence . . . that could not ha ve been ascertained by the ex ercise of due diligence by the
petitioner or petitioner’s attorney within the two-year time period for filing a
postconviction petition.” Id.
Appellant contends that the evidence upon which his newly-discovered-evidence
claim is based could not have been ascertained through due diligence before February 21,
2019. This evidence, appe llant argues, is necessary to succeed on his petition and it
includes both D.T.’s recantation and his “sister’s basis of knowledge placing [a]ppellant at
the scene of the shooting and her corroboration of the iden tification of [him] as the
shooter.” Because, appellant argues, the affidavit of appellant’s sister was not ascertainable
with due diligence within the statutory two-year period, his petition is timely.
Appellant further contends that the dist rict court erred by failing to discuss the
Larrison test1 as applied by the supreme court in State v. Turnage, 729 N.W.2d 593 (Minn.
2007). Pursuant to the Larrison test, a petition is entitled to a new trial due to a trial witness
recanting their testimony if: (1) the court is “reasonably well-satisfied that the testimony
given by a material witness was false,” (2) th e jury might reach a different conclusion
without the testimony, and (3 ) the petitioner seeking a new tr ial was “taken by surprise
when the false testimony was given and was unable to meet it or did not know of its falsity
until after the trial.” Id. (quotations omitted).

1 Minnesota applies the Larrison test to claims of witne ss recantation, even though
Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928), has been overruled. Martin
v. State, 825 N.W.2d 734, 739 n.6 (Minn. 2013).
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Appellant’s arguments are rebutted by case law and we first address appellant’s
argument regarding the Larrison test as it was applied in Turnage. First, unlike in this
matter, the Turnage case does not involve an exception to the statutory timelines because
the postconviction petition under review in that matter was timely filed. Id. Second, and
contrary to appellant’s argument, a postconvic tion petition is “not re quired to satisfy the
Larrison test” in order “[t]o obtain a postc onviction evidentiary hearing.” Martin, 825
N.W.2d at 743. To obtain an evidentiary hearing, a petitioner is “simply required to present
competent material evidence th at, if found to be true follo wing an eviden tiary hearing,
could satisfy the Larrison test.” Id. Instead, appellant errone ously conflates the amount
of evidence necessary to succeed following an evidentiary hearing with “competent
material evidence necessary” to obtain an evidentiary hearing.
The newly-discovered-evidence exception requires an allegation of “newly
discovered evidence . . . that could not have been ascertained by the exercise of due
diligence . . . within the two-year time period for filing a postconviction petition.” Minn.
Stat. § 590.01, subd. 4(b)(2). By November 2018—three months before the statutory time
expired—appellant possessed an affidavit fro m D.T. recanting his identification of
appellant as the shooter. No one other than D.T. (notably including D.T.’s sister), saw the
shooting. Appellant’s newly-discovered-eviden ce was, therefore, ascertained within the
two-year time period for filing a postconviction petition which means he is not entitled to
relief pursuant to the newly-discovered-evidence exception established by section 590.01,
subdivision 4(b)(2). Appellant’s claim is time-barred unless he filed his postconviction
petition within two years of the United States Supreme Court’s denial of his direct appeal.
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Because appellant’s postconviction petition was filed more than two years after the United
States Supreme Court’s deni al, his postconviction petition is thus barred under section
590.01, subdivision 4(a). Because appellant’s claim fails pursuant to Minn. Stat. § 590.01,
subd. 4(b)(2), we do not consider appellant’s argument that his claim for postconviction
relief did not arise until he obtained “all the evidence necessary” to bring a meritorious
claim for relief. See Minn. Stat. § 590.01, subd. 4(c).
The district court did not abuse its di scretion by concluding that appellant’s
postconviction petition did not satisfy the newly-discovered-evidence exception.
Affirmed.