Scott Marlin Morey, 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This opinion is nonprecedential except as provided by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
A23-1944

Scott Marlin Morey, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed July 22, 2024
Affirmed
Schmidt, Judge

Clearwater County District Court
File No. 15-CR-14-522

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

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

Kathryn A. Lorsbach, Clearwater County Attorney, Bagley, Minnesota (for respondent)

Considered and decided by Schmidt, Presiding Judge; Worke, Judge; and
Harris, Judge.
NONPRECEDENTIAL OPINION

SCHMIDT, Judge

On appeal from the denial of appellant’s second postconviction petition, appellant
argues that the district court abused its discretion by summarily denying his petition as
statutorily time-barred because his claims fall within the newly- discovered-evidence
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exception under Minn. Stat. § 590.01, subd. 4(b)(2) (2022) and within the interests-of-
justice exception under Minn. Stat. § 590.01, subd. 4(b)(5) (2022). We affirm.
FACTS

In December 2014, respondent State of Minnesota charged appellant Scott Marlin
Morey with 16 counts of criminal sexual conduct involving three of his minor sons. In
2016, a jury found Morey guilty of 13 counts of felony criminal sexual conduct involving
two of his sons.1 The district court sentenced Morey to consecutive sentences totaling 406
months in prison. Morey appealed his conviction and his sentence, which we affirmed in
2017. State v. Morey, No. A16-1364, 2017 WL 3222747, at *3–6 (Minn. App. July 31,
2017), rev. denied (Minn. Oct. 17, 2017).
First petition for postconviction relief

In 2019, Morey petitioned for postconviction relief, contending that his trial attorney
provided him with ineffective assistance of counsel and that the prosecutor engaged in
misconduct. The district court conducted a hearing at which Morey represented himself,
testified, and called as witnesses his trial attorney, his wife, and the trial prosecutor. The
district court denied Morey’s petition for postconviction relief, which we affirmed.
Morey v. State, No. A21-0207, 2021 WL 3478647, at *1 (Minn. App. Aug. 9, 2021), rev.
denied (Minn. Oct. 19, 2021).

1 A third son accused Morey of sexually abusing him, but those charges were removed
from the amended complaint after that son died by suicide before trial.
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Second petition for postconviction relief

In 2023, Morey filed his second petition seeking postconviction relief based on
“newly discovered evidence.” The “new” evidence presented by Morey included (1) an
expert witness letter from Dr. Thomas Nordahl claiming that Morey’s physical exams
provide no evidence of past sexual abuse or assault, (2) evidence of sexual crimes against
minor males committed by the lead investigator in the case against Morey, and (3) evidence
of prosecutorial misconduct by the lead prosecutor in the case against Morey.
The district court summarily denied Morey’s second petition for postconviction
relief as statutorily time-barred. The court noted that even if the matter was timely,
Morey’s theory for postconviction relief was “nearly frivolous” and did not reach the clear
and convincing standard as required by the newly-discovered-evidence exception.
Morey appeals.
ANALYSIS

We “review the summary denial of a petition for postconviction relief for an abuse
of discretion.” El-Shabazz v. State, 984 N.W.2d 569, 573 (Minn. 2023). “A district court
does not abuse its discretion when it summarily denies a postconviction petition that is
time-barred.” Martin v. State, 969 N.W.2d 361, 363 (Minn. 2022).
A petition for postconviction relief must be filed within two years of the entry of a
judgment or, if a direct appeal was filed, an appellate court’s disposition of the direct
appeal. Minn. Stat. § 590.01, subd. 4(a) (2022). But a petition filed after this deadline may
be treated as timely if a statutory exception applies. Id., subd. 4(b) (2022). The petitioner
has the burden of showing that an exception applies. See El-Shabazz, 984 N.W.2d at 574.
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There is no dispute that Morey’s second postconviction petition was filed outside of
the two-year statutory time limit. Thus, to avoid the time-bar, Morey bears the burden to
establish that an exception applies. Id. Morey argues his petition is not time-barred
because two exceptions save his petition. We address each exception in turn.
A. The newly-discovered-evidence exception does not save Morey’s
petition from the statutory two-year time-bar.

Morey first asserts that the newly-discovered-evidence exception applies to his
petition. To qualify for this exception, a postconviction petition must contain allegations
that (1) newly discovered evidence exists, (2) the new evidence “could not have been
ascertained by the exercise of due diligence by the petitioner or petitioner’s attorney within
the two-year time period for filing a postconviction petition,” (3) “the evidence is not
cumulative to evidence presented at trial,” (4) the evidence is not being used for
impeachment purposes, and (5) the evidence “establishes by a clear and convincing
standard that the petitioner is innocent of the offense or offenses for which the petitioner
was convicted.” Minn. Stat. § 590.01, subd. 4(b)(2). All five requirements must be met
for the exception to apply. El-Shabazz, 984 N.W.2d at 574.
1. New evidence related to the prosecutor and officer.

Morey asserts that the newly-discovered-evidence exception applies to his petition
because the revelations about the lead investigating officer and the prosecutor did not come
to light until after trial. But the record shows that Morey provided no dates or times as to
when he became aware of the prosecutor’s disciplinary actions or the officer’s convictions.
Based on the dates provided in the reports, the district court found that at least one of the
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prosecutor’s discipline actions, which occurred in 2018, was discoverable during Morey’s
first postconviction petition filed in 2019. The district court also found that the officer’s
conviction was entered in August 2021, over two years before Morey filed his second
petition for postconviction relief. The district court appropriately reviewed the evidence
and determined that the prosecutor’s discipline and the officer’s conviction occurred more
than two years prior to Morey’s second petition and, as such, were not timely filed within
two years of the dates that the claims arose. See Minn. Stat. § 590.01, subd. 4(c) (2022).
Additionally, the state argues that the evidence regarding the officer and prosecutor
is unrelated to Morey’s case and does not establish his innocence by clear and convincing
evidence. We agree. The district court did not find the “newly discovered evidence”
compelling in Morey’s case because his theory for relief was based on the officer’s
conviction “involving children other than those involved” in this case and the prosecutor’s
attorney discipline matters involved different cases.
2. New evidence related to the doctor’s report.

Morey also claims that Dr. Nordahl’s report constitutes new evidence that justifies
a new trial. We disagree.
First, Dr. Nordahl reviewed Morey’s medical records from April 2020. Those
reports have been available for over two years. Morey’s 2020 medical records cannot avoid
the two-year time-bar for his 2023 petition. See Id.
Second, Dr. Nordahl’s report makes the following qualification:
Clinically, physical findings of a person obtained
through a medical examination may or may not be evident to
confirm an act of sexual assault for either the alleged
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perpetrator or victim. Generally, the absence of physical
findings alone does not make an alleged assault impossible.
And likewise, and in other words, a sexual assault may occur
without detectable or enduring physical findings. Of course,
physical findings may be discovered and found to be consistent
with the alleged report and mechanism of a sexual assault as
well. All of this applies as well when the assault is alleged to
involve anal intercourse or penetration.

Dr. Nordahl qualified his opinion to note that medical records may have no
relevance to confirm a sexual assault occurred. Morey largely ignores that portion of the
doctor’s report and, instead, cites the doctor’s opinion: “Nothing in [Morey’s] exhaustive
work-up and medical investigation at that time including his physical exam relates to or
would support a claim of past sexual abuse or assault.” Given the doctor’s prior paragraph
that qualified the opinion, the ultimate conclusion does not establish—by clear and
convincing evidence— that Morey is innocent of the offenses for which he was convicted.
Finally, Morey provides no argument as to how 2020 medical records would be
relevant to conduct that occurred at least five years earlier. Such records are not “new
evidence.” If they were, all medical records created well after the conduct at issue would
become newly discovered evidence. Such a ruling would render the two-year
postconviction statute of limitations meaningless because a conviction would never be
final. We decline to adopt such a rule of law that is antithetical to the postconviction
deadlines and the limited exceptions to those deadlines.
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B. The interests-of-justice exception does not save Morey’s petition from
the two-year time-bar.

Morey argues the interests-of-justice exception precluded the district court from
applying the statutory two-year time-bar to his claims related to the prosecutor, officer, and
doctor’s report. To qualify under the interests-of-justice exception, a petition for
postconviction relief must have substantive merit and the petitioner must not have
deliberately and inexcusably delayed bringing the claim. Wright v. State, 765 N.W.2d 85,
90 (Minn. 2009). The interests of justice provide a petitioner with an exception to the
two-year statutory time-bar only if the injustice relates to the reason the petition was filed
after the time limit and the injustice caused them “to miss the primary deadline.”
Sanchez v. State, 816 N.W.2d 550, 557 (Minn. 2012).
First, the prosecutor’s attorney discipline was in 2018 and 2020. The district court
did not clearly err in determining that the discipline information was available to Morey
more than two years prior to the 2023 filing of the current petition.
Second, in highly publicized criminal proceedings, the officer was charged in 2019
and convicted in 2021. Morey should have known about the charges in 2019 and 2021,
both of which occurred over two years before he filed the current postconviction petition.
Finally, the district court found that the medical examination was completed in
April 2020—over three years prior to the filing of Morey’s second postconviction petition
filed in 2023. A doctor’s general opinion about Morey’s physical condition could have
been conducted before the trial or before he filed his first petition.
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None of t hese facts lend to the reasonable conclusion that the interests of justice
requires consideration of Morey’s second petition for postconviction relief . The
prosecutor, officer, and doctor’s report were all available to Morey —or could have been
made available for the doctor’s report —over two years before he filed the second
postconviction petition . Further, Morey provides no reasonable explanation as to how
these circumstances could have caused him to miss the two-year deadline.
The district court properly dismissed Morey’s petition as statutorily time-barred.
Affirmed.