Gabriel Robert Kimbrough, 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This opinion is nonprecedential except as provided by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
A24-1810

Gabriel Robert Kimbrough, petitioner,
Appellant,

vs.

State of Minnesota,
Respondent.

Filed August 11, 2025
Reversed and remanded
Larkin, Judge

Ramsey County District Court
File No. 62-CR-17-3422

Anders J. Erickson, Johnson Erickson Criminal Defense, Minneapolis, Minnesota (for
appellant)

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

John J. Choi, Ramsey County Attorney, Michelle A. Monteiro, Assistant County Attorney,
St. Paul, Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Bentley, Judge; and Cleary,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant challenges the district court’s denial of his second preliminary application
to vacate his conviction for aiding and abetting second-degree felony murder. We reverse
and remand.
FACTS
In 2017, respondent State of Minnesota charged appellant Gabriel Robert
Kimbrough with aiding and abetting second-degree felony murder under Minn. Stat.
§§ 609.05, subd. 1, .19, subd. 2(1) (2016) , and aiding and abetting second -degree
intentional murder under Minn. Stat. §§ 609.05, subd. 1, .19, subd. 1(1) (2016).
Kimbrough pleaded guilty to the felony-murder charge, and the state dismissed the
remaining charge. As part of the plea agreement, Kimbrough agreed to testify against his
codefendant and cousin, Ryan Fore. When pleading guilty, Kimbrough stated that Fore
and another man, Edward Williams, went to a residential location to meet BL to purchase
marijuana. Kimbrough knew that Fore was armed with a gun. Kimbrough also knew that
Fore and Williams were going to rob BL, and he admitted that his “role” was to send BL
to the backyard, where Fore would be waiting. It is undisputed that Fore shot and killed
BL in the backyard during the robbery. Kimbrough admitted that the robbery led to BL’s
murder.
The district court accepted Kimbrough’s guilty plea, entered a judgment of
conviction for aiding and abetting second -degree felony murder under Minn. Stat.
§§ 609.05, subd. 1, .19, subd. 2(1), and sentenced Kimbrough to serve 159 months in prison
3
for his role in BL’s death . Th e sentence constituted a downward durational departure,
which the district court granted on the ground that Kimbrough played a minimal role in the
murder. Kimbrough did not appeal his conviction or seek postconviction relief.
In December 2023, Kimbrough applied to vacate his conviction under a new ly
enacted law, which provides a process to vacate a conviction of aiding and abetting second-
degree felony murder. 2023 Minn. Laws ch. 52, art. 4, § 24, at 864 -68. The district court
denied Kimbrough’s preliminary application, determining that he was not entitled to relief
because he was a major participant in the crime. In reaching that determination, the district
court relied on a summary of a 2018 interview of Fore, which was co ntained in Fore’s
presentence-investigation report. In that interview, Fore stated that Kimbrough gave him
a gun and that he and Kimbrough went to get Williams so they would have another person
with a gun during the robbery. The district court determined that it was “reasonably
foreseeable” that the “deadly weapon” that Kimbrough gave Fore “would be used in the
underlying felony.”
In February 2024, Kimbrough filed a handwritten letter with the district court stating
that the preliminary application to vacate his conviction was submitted by his attorney
without his permission and was “not authorized.” Kimbrough asserted that he did not
provide Fore with a gun. His letter stated: “[T]he statement of the facts that you utilized
to come to your decision was not accurate, and I ask that you truly look into what happened
because I can assure you that I 100% did not have a weapon, nor di d I provide a weapon
in this instance.”
4
In September 2024, Kimbrough, with the assistance of a new attorney, reapplied to
vacate his conviction. 1 In his second preliminary application, Kimbrough challenged
Fore’s statement to probation, arguing that it was not reliable and was not made under oath.
Kimbrough’s second preliminary application included a copy of his sentencing order, his
first preliminary application, the district court’s order denying that application, and his
plea-hearing transcript. It also included information regarding his incarceration status.
The district court denied Kimbrough’s second preliminary application. The court
again relied on Fore’s presentence-investigation report and concluded that Kimbrough was
both a major participant in the offense and acted with extreme indifference to human life
because he coordinated the robbery, lured BL to the robbery site, and provided a deadly
weapon to Fore knowing that it would be used in the robbery.
Kimbrough appeals the district court’s denial of his second preliminary application.
DECISION
In 2023 and 2024, the legislature enacted a process that allows a person convicted
of aiding and abetting second -degree2 felony murder to petition the district court for
vacation of that conviction. 2023 Minn. Laws ch. 52, art. 4, § 24, at 864 -68, amended by
2024 Minn. Laws ch. 123, art. 4, §§ 19 -21, at 2268-71. We refer to these 2023 and 2024

1 2024 amendments authorize d reapplication after clarif ying that an applicant must
establish either that he was not a major participant or that he did not act with extreme
indifference to human life. See 2024 Minn. Laws ch. 123, art. 4, §§ 19-21, at 2268-71.
2 The Act also authorizes relief from a conviction of aiding and abetting first-degree felony
murder under Minn. Stat. § 609.185(a)(3) (2024), but we reference only second -degree
felony murder in this opinion. 2023 Minn. Laws ch. 52, art. 4, § 24, at 864.
5
session laws collectively as “the Act.”3 The legislature passed the Act “to narrow the scope
of liability for aiding and abetting . . . second-degree felony murder.” See Raisch, 8
N.W.3d at 239 (discussing the 2023 session law).
Under Minnesota’s aiding and abetting statute, “[a] person is criminally liable for a
crime committed by another if the person intentionally aids, advises, hires, counsels, or
conspires with or otherwise procures the other to commit the crime.” Minn. Stat. § 609.05,
subd. 1. A person liable under that standard “is also liable for any other crime committed
in pursuance of the intended crime if reasonably foreseeable by the person as a probable
consequence of committing or attempting to commit the crime in tended.” Id., subd. 2
(2016). In 2023, the aiding and abetting statute was amended to restrict liability as follows:
“A person may not be held criminally liable for [second-degree felony murder] for a death
caused by another unless the person was a major participant in the underlying felony and
acted with extreme indifference to human life.” 2023 Minn. Laws ch. 52, art. 4, § 3, subd.
2a(b), at 850.
Overview of the Act
The Act provides that a person convicted of second -degree felony murder “ under
the theory of liability for crimes of another and who is in the custody of the commissioner

3 The Act is not codified in the Minnesota statutes, likely because the application procedure
for seeking relief from an aiding and abetting felony -murder conviction is time-limited.
See Raisch v. State, 8 N.W.3d 237, 242 n.3 (Minn. App. 2024) (discussing the 2023 session
law), rev. denied (Minn. Nov. 19, 2024); see also 2024 Minn. Laws ch. 123, art. 4, § 21, at
2271 (extending the deadline for certain persons seeking relief to October 1, 2026).

6
of corrections or under court supervision is entitled to petition to have the person ’s
conviction vacated pursuant to this section.” Id., § 24, subd. 1, at 864. The Act states:
Subd. 3. Notification. (a) By September 1, 2024, the
commissioner of corrections shall notify individuals convicted
[of second-degree felony murder] of the right to file a
preliminary application for relief if:

. . . .

(2) the person was convicted [of second-degree felony
murder] and the person:
(i) did not cause the death of a human being; and
(ii) was not a major participant in the underlying
felony or did not act with extreme indifference to human life.

(b) The notice shall include the address of the Ramsey
County District Court court administration.

(c) The commissioner of corrections may coordinate
with the judicial branch to establish a standardized notification
form.

See 2024 Minn. Laws ch. 123, art. 4, § 19, at 2268-69 (amending the 2023 session law and
permitting the right to seek relief if the defendant “ was not a major participant in the
underlying felony” or “did not act with extreme indifference to human life ” rather than
“was not a major participant in the underlying felony” and “did not act with extreme
indifference to human life”).
To obtain relief under the Act, a convicted person must first submit a preliminary
application. 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 4, at 865. Next, the district court
must determine whether to approve the preliminary application ; if the district court does
so, the applicant may fil e a petition to vacate the conviction. Id., subds. 5 -6, at 865 -67.
The relevant part of the Act provides:
7
Subd. 4. Preliminary application. (a) An applicant shall
submit a preliminary application to the Ramsey County
District Court.4 The preliminary application must contain:
(1) the applicant’s name and, if different, the name
under which the person was convicted;
(2) the applicant’s date of birth;
(3) the district court case number of the case for which
the person is seeking relief;
(4) a statement as to whether the applicant was
convicted following a trial or pursuant to a plea;
(5) a statement as to whether the person filed a direct
appeal from the conviction, a petition for postconviction relief,
or both;
(6) a brief statement, not to exceed 3,000 words,
explaining why the applicant is entitled to relief under this
section from a conviction for the death of a human being
caused by another; and
(7) the name and address of any attorney representing
the applicant.

(b) The preliminary application may contain:
(1) the name, date of birth, and district court case
number of any other person charged with, or convicted of, a
crime arising from the same set of circumstances for which the
applicant was convicted; and
(2) a copy of a criminal complaint or indictment, or the
relevant portions of a presentence investigation or life
imprisonment report, describing the facts of the case for which
the applicant was convicted.

(c) The judicial branch may establish a standardized
preliminary application form, but shall not reject a preliminary
application for failure to use a standardized form.

Id., subd. 4, at 865 (footnote added).

4 The Act requires the applicant to submit a preliminary application to the Ramsey County
District Court, regardless of where the criminal case was venued. 2023 Minn. Laws ch.
52, art. 4, § 24, subds. 4(a), 5(a), at 865. But on August 18, 2023, the supreme court ordered
that, in the interests of the efficient administration of justice, applicants shall submit their
preliminary application in the district court where the conviction was entered. Order
Regarding the Filing of Requests for Relief in Aid and Abet Felony Murder Cases, ADM09-
8010 (Minn. Aug. 18, 2023).
8
The Act directs the district court’s review of a preliminary application as follows:
Subd. 5. Review of preliminary application. (a) Upon
receipt of a preliminary application, the court administrator of
the Ramsey County District Court shall immediately direct
attention of the filing thereof to the chief judge or judge acting
on the chief judge’s behalf who shall promptly assign the
matter to a judge in said district.

(b) The judicial branch may appoint a special master to
review preliminary applications and may assign additional
staff as needed to assist in the review of preliminary
applications.

(c) Within 90 days of the Ramsey County District Court
receiving the preliminary application, the reviewing judge
shall determine whether, in the discretion of that judge, there
is a reasonable probability that the application is entitled to
relief under this section.

(d) In making the determination under paragraph (c), the
reviewing judge shall consider the preliminary application and
any materials submitted with the preliminary application and
may consider relevant records in the possession of the judicial
branch.

Id., subd. 5(a)-(d), at 865-66 (emphasis added).
The Act provides that the district court may summarily deny an application if:
(1) the application does not contain the information
required under subdivision 4, paragraph (a);
(2) the applicant is not in the custody of the
commissioner of corrections or under court supervision;
(3) the applicant was not convicted of [second-degree
felony murder] for crimes committed before August 1, 2023;
or
(4) the issues raised in the application are not relevant
to the relief available under this section or have previously
been decided by the court of appeals or the supreme court in
the same case.

9
Id., subd. 5(e), at 866. A subsequent preliminary application may be “summarily” denied
on grounds not applicable here. Id., subd. 5(f), at 866.
If the district court “determines that there is not a reasonable probability that the
applicant is entitled to relief,” then it must provide the applicant with a brief statement
explaining how it reached its determination. Id., subd. 5(h), at 866. In which case, “the
applicant cannot proceed to the second step” of the application process. Raisch, 8 N.W.3d
at 240.
If, however, the reviewing judge determines that there is a reasonable probability
that the applicant is entitled to relief, the district court “shall sen d notice” to the applicant
and the applicant’s attorney, if any, the prosecuting attorney, and if the applicant is without
counsel, to the state public defender. 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 5(g), at
866. Next, “the individual seeking relief shall file and serve a petition to vacate the
conviction.” Id., subd. 6(a), at 866-67. The petition must contain the information required
in a preliminary application, and it may contain “other relevant information,” such as
“police reports, trial transcripts, and plea transcripts involving the petitioner or any other
person investigated for, charged with, or convicted of a crime arising out of the same set
of circumstances” underlying the petitioner’s conviction. Id.
The Act requires the prosecuting attorney to “respond to the petition by answer or
motion.” Id., subd. 6(c), at 867. The prosecuting attorney’s response may “serve notice of
the intent to support the petition or include a statement explaining why the petitioner is not
entitled to relief along with any supporting documents.” Id. The petitioner “may file a
reply” to the prosecutor’s response. Id., subd. 6(d), at 867. Next, the district court must
10
do one of three things: (1) if the prosecutor supports the petition, “schedule the matter for
sentencing or resentencing,” (2) deny the petition “if additional information or submissions
establish that there is not a reasonable probability that the applicant is entitled to relief,” or
(3) “schedule the matter for a hearing and issue any appropriate order regarding submission
of evidence or identification of witnesses.” Id., subd. 6(e), at 867. Any hearing “shall” be
“conducted pursuant to Minnesota Statutes, section 590.04,” which governs hearings on
petitions for postconviction relief. Id., subd. 6(f), at 867.
Ultimately, a petitioner who was convicted of aiding and abetting second -degree
felony murder is entitled to relief if he shows the following circumstances by a
preponderance of the evidence: (1) he did not cause the death of a human being and (2) he
either was not “a major participant in the underlying felony” or he did not “act with extreme
indifference to human life.” 2024 Minn. Laws ch. 123, art. 4, § 20, subd, 7(b), at 2269. As
used in the Act, ‘“major participant’ has the meaning given in Minnesota Statutes, section
609.05, subdivision 2a, paragraph (c). ” 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 2, at
864. A major participant includes a person who “provided a deadly weapon to another
participant where it was reasonably foreseeable that the weapon would be used in the
underlying felony.” Minn. Stat. § 609.05, subd. 2a(c)(1) (Supp. 2023).
Kimbrough’s Assertions of Error
Kimbrough contends that “the district court abused its discretion by misapplying the
preliminary application process that the Legislature created within the Act.” Kimbrough
asserts the following errors: (1) the district court summarily denied his application without
relying on the specific circumstances permitting a summary denial , (2) the district court
11
did not apply the required reasonable -probability standard , (3) the district court did not
effectuate the legislature’s intent , and (4) the district court improperly conducted its own
investigation into the facts of the case and prematurely ruled on the merits.
Denial of a preliminary application under the Act is appealable as a denial of
postconviction relief. Raisch, 8 N.W.3d at 242; see State v. Griffin , 20 N.W.3d 57, 61
(Minn. 2025) (order) (stating that the language of Minnesota’s postconviction statute “is
broad enough to encompass an appeal from the denial of a preliminary application under
the Act”). We review the denial of postconviction relief —including a denial without a
hearing—for an abuse of discretion. Brown v. State, 895 N.W.2d 612, 617 (Minn. 2017).
The Minnesota Supreme Court recently stated that because it had treated the denial of a
preliminary application as “a denial of a petition for postconviction relief for purposes of
[its] jurisdiction . . . the same standard of review—abuse of discretion” should apply. State
v. Griffin, ___ N.W.3d ___, ___, 2025 WL 2155167, at *6 (Minn. July 30, 2025). An abuse
of discretion occurs when a decision “is based on an erroneous view of the law or is against
logic and the facts in the record.” Id. (quotation omitted). We review findings of fact for
clear error and legal conclusions de novo. Id.
Kimbrough notes that if “a district court’s discretionary decision is premised on a
misinterpretation of a statute, [we] review[] the district court’s legal conclusions related to
the interpretation of the statute de novo.” Although Kimbrough raises the issue of statutory
interpretation, he does not engage in the relevant analysis, which first determines whether
the relevant language is ambiguous or clear. See State v. Torrez, ___ N.W.3d ___, ___,
12
2025 WL 1572387, at *3 (Minn. June 4, 2025). If statutory language is not ambiguous, we
apply the statute’s plain language to effectuate legislative intent. Id.
Summary Denial of Relief
We first address Kimbrough’s assertion that the district court summarily denied
relief. Again, the Act provides that a preliminary application may be “summarily” denied
for the following reasons: (1) the application does not include statutorily required
information, (2) the applicant is not in custody or under court supervision, (3) the applicant
was not convicted of an applicable felony-murder offense, or (4) the issues raised are
irrelevant or have been previously determined by an appellate court. 2023 Minn. Laws ch.
52, art. 4, § 24, subd. 5(e), at 866. As Kimbrough argues, the district court did not identify
any of those reasons as the basis for its denial of his second preliminary application. Thus,
under the plain language of the Act, the district court did not summarily deny Kimbrough’s
second preliminary application for relief.
Reasonable-Probability Standard
We next address Kimbrough’s assertion that the district court did not apply the
required reasonable-probability standard. Again, the Act states that when the district court
reviews a preliminary application, “the reviewing judge shall determine whether, in the
discretion of that judge, there is a reasonable probability that the application is entitled to
relief under this section.” Id., subd. 5(c), at 865 (emphasis added). An applicant may not
advance from a preliminary application to a petition to vacate his conviction if there is not
a reasonable probability that the applicant is entitled to relief. See Raisch, 8 N.W.3d at 240
13
(stating that the applicant “cannot proceed to the second step” if the district court rejects
the preliminary application).
The district court explained its denial of Kimbrough’s second preliminary
application as follows:
As an aider and abettor, [Kimbrough] planned, set up, and
coordinated the armed robbery, and provided his deadly
weapon (the gun used in the first -degree aggravated robbery),
and thus was a major participant in the commission of the
crime. Additionally, this Court concludes that [Kimbrough]
acted with extreme indifference to human life when he set up
and lured the victim to the site where he was going to be
robbed.

In sum, the district court concluded that Kimbrough was not entitled to relief
because he was a “major participant” and acted “with extreme indifference to human life.”
See 2024 Minn. Laws ch. 123, art. 4, § 20, subd. 7(b)(2), at 2269.
Kimbrough argues that the district court did not apply the required reasonable -
probability standard in reaching that conclusion , noting that the district court did not cite
to or discuss that standard. Kimbrough’s argument puts form over substance. Although
the district court did not use the term “reasonable probability” when explaining its decision,
the district court relied on Fore’s assertion during his presentence investigation that
Kimbrough provided the murder weapon. In doing so, the district court noted that it could
consider rele vant records in the possession of the judicial branch when making its
determination “under paragraph (c).” See 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 5(d),
at 866. “Paragraph (c)” refers to the reasonable-probability determination that the district
court “shall” make when reviewing a preliminary application. Id., subd. 5(c), at 865. On
14
this record, we are satisfied that the district court made a reasonable -probability
determination.
Legislative Intent
Kimbrough also argues that the district court did not “effectuate the Legislature’s
stated intent to allow any individual who is in custody” and who “was convicted of aiding
and abetting felony murder” to “petition the district court to vacate a felony murder
conviction.” He argues that the legislature “clearly intended that any applicant convicted
of aiding and abetting felony murder [who] is in custody should be allowed to petition the
district court to vacate a felony murder conviction.” Essentially, Kimbrough asserts that
so long as a preliminary applicant has a conviction for second-degree felony murder and is
in custody, there is a reasonable probability that the applicant is entitled to relief. 5
Kimbrough’s assertion is refuted by the plain language of the Act, which clearly
distinguishes between a right to petition for relief and a right to relief itself. The Act states
that although certain individuals are “entitled to petition” to have their convictions vacated,

5 Kimbrough complains that “the judicial branch’s approved preliminary application form
indicates that the preliminary application should be granted if the applicant was convicted
of aiding and abetting felony murder, is in custody or under supervision, and merely
asserts—by checking a box—that he is entitled to relief under the Act.” His point is well
taken. Although the Act states that the applica tion “must contain” a brief statement
explaining why the applicant is “entitled to relief” and that failure to do so is grounds for
summary denial, the judicial branch’s standardized preliminary-application form indicates
that “an additional statement . . . further explaining why you are entitled to relief” is
optional. 2023 Minn. Laws ch. 52, art. 4, § 24, subd s. 4(a)(6), 5(e)(1), at 865-66; Minn.
Jud. Branch, Form: CRM1502 Preliminary Application (Request) to Vacate Conviction of
Aid/Abet Felony Murder , https://mncourts.gov/getforms/criminal/form-crm1502-
preliminary-application-request-to-vacate-conviction-of-aidabet-felony-murder.
[https://perma.cc/VB6G-6BMK].
15
the district court must ultimately authorize the petition. Id., subds. 1 , 5-7, at 864 -68
(emphasis added). And the district court cannot authorize a petition unless it determines—
based on its review of a preliminary application —that “there is a reasonable probability
that the [applicant] is entitled to relief.” Id., subds. 5(c) (emphasis added), (g), 6 , at 865-
67. Finally, the Act clearly states that a person is “entitled to relief” from a conviction of
aiding and abetting second-degree felony murder if the person “shows by a preponderance
of the evidence” that the person “did not cause the death of a human being” and either was
“not a major participant in the underlying felony” or “did not act with extreme indifference
to human life.” 2024 Minn. Laws ch. 123, art. 4, § 20, subd. 7(b), at 2269.
“[A] statute should be read and construed as a whole so as to harmonize and give
effect to all its parts.” State v. Johnson , 995 N.W.2d 155, 160 (Minn. 2023). When the
relevant provisions of the Act are read together and construed as a whole, they establish
that a person is “entitled to petition” to have a conviction vacated so long as the district
court determines that the person’s preliminary application shows a reasonable probability
that the person is “entitled to relief.” See 2023 Minn. Laws. ch. 52, art. 4, § 24, subd s. 1,
5-6, at 864-67. And a person is “entitled to relief” so long as he shows that he did not cause
a death and that he was not “a major participant in the underlying felony ” or that he “did
not act with extreme indifference to human life.” 2024 Minn. Laws ch. 123, art. 4, § 20,
subd. 7(b), at 2269. Contrary to Kimbrough’s assertion, a n applicant is not entitled to
petition to vacate a conviction based only on the assertion s that he has been convicted of
aiding and abetting second-degree felony murder and that he is in custody for that offense.
Thus, when ruling on Kimbrough’s second preliminary application, the district court did
16
not err by considering whether Kimbrough was a major participant or acted with extreme
indifference to human life.
The District Court’s Decision on the Merits
Kimbrough contends that “even if the district court was allowed to rule on the merits
of [his] request for relief, the district court’s ruling constituted an abuse of discretion.”
Kimbrough argues that “during the preliminary application process the district court is not
permitted to make factual and legal determinations regarding whether the applicant
satisfies the requirements necessary for relief.” Two circumstances are relevant here.
First, when making a reasonable -probability determination at the preliminary -
application stage, the district court does not have the benefit of a fully developed record.
See 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 5 (c), (d), at 86 5-66. A preliminary
applicant’s submissions may include:
(1) the name, date of birth, and district court case number
of any other person charged with, or convicted o f, a crime
arising from the same set of circumstances for which the
applicant was convicted; and
(2) a copy of a criminal complaint or indictment, or the
relevant portions of a presentence investigation or life
imprisonment report, describing the facts of the case for which
the applicant was convicted.

Id., subd. 4(b), at 865.
An opportunity to fully develop the record does not result unless the district court
approves a preliminary application and authorizes the applicant to file a petition. Id., subds.
5(g), 6, at 866-67. In which case, the petition may:
contain any other relevant information, including police
reports, trial transcripts, and plea transcripts involving the
17
petitioner or any other person investigated for, charged with,
or convicted of a crime arising out of the same set of
circumstances for which the petitioner was convicted.

Id., subd. 6(a), at 866-67.
Moreover, the prosecuting attorney is not allowed to participate in the proceeding
until the petition stage.6 See id., subd. 6(a) (requiring petitioner to file and serve petition
in the judicial district where the conviction occurred), (b) (requiring prosecutor to notify
victim of underlying offense that petition was filed), (c) (requiring prosecutor to respond
to the petition), at 866-67. The prosecuting attorney must respond to the petition, and the
response may “include a statement explaining why the petitioner is not entitled to relief
along with any supporting documents.” Id., subd. 6(c), at 867.
Second, a district court generally is not allowed to resolve material factual disputes
based on an undeveloped record at the preliminary stage of a legal proceeding. For
example, under Minnesota’s postconviction statute, a person convicted of a crime may seek
relief by filing a petition claiming that the conviction “violated the person ’s rights under
the Constitution or laws of the United States or of the state.” Minn. Stat. § 590.01, subd.
1(1) (2024). An evidentiary hearing on a postconviction petition must be held unless “the
petition and the files and records of the proceeding conclusively show that the petitioner is
entitled to no relief.” Minn. Stat. § 590.04, subd. 1 (2024).

6 The state argues: “There is additional evidence in the records of [Kimbrough] and his
co-defendants that also shows [Kimbrough] was a major participant who acted in extreme
indifference to human life. Because the State was not a party to the preliminary application
process, this evidence was not included in the Court’s review or in its order. The
incomplete record is a significant challenge for the State in defending on Appeal a decision
where the State had no role in the initial application or its review.”
18
The Minnesota Supreme Court has stated:
The postconviction court must hold an evidentiary
hearing to resolve factual disputes that are material to
determining the legal issues raised in the postconviction
petition when those factual disputes were not resolved in the
proceedings resulting in a co nviction. The showing required
for an evidentiary hearing is lower than that required for a new
trial. Any doubts as to whether to conduct an evidentiary
hearing should be resolved in favor of granting the hearing.

Thoresen v. State, 965 N.W.2d 295, 303 (Minn. 2021) (quotation and citations omitted).
In Raisch, we held that a denial of a preliminary application under the Act based on
a determination that there is not a reasonable probability that the applicant is entitled to
relief “is an appealable order as from a denial of postconviction relief.” 8 N.W.3d at 238.
In reaching that conclusion, we noted the similarities between the Act and Minnesota’s
postconviction statutes.7 Id. at 241. Based on those similarities, we were “persuaded that
the postconviction remedy is broad enough to encompass the preliminary application
procedure in the act.” Id. at 242; see Griffin, 2025 WL 2155167, at *6 (noting that because
denial of a preliminary application had been treated as denial of postconviction relief for
purposes of jurisdiction , the same standard of review should govern) . We are again
influenced by our postconviction jurisprudence —including Thoresen—when reviewing
the district court’s application of the Act here.
Although the district court found that Kimbrough “was not the shooter and did not
admit to having a gun ,” it credited Fore’s presentence assertion that “Kimbrough gave

7 Indeed, the Act states that a hearing on a petition “shall be . . . conducted pursuant to
Minnesota Statutes, section 590.04.” 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 6(f), at
867; see Minn. Stat. § 590.04 (2024) (governing hearings on a postconviction petition).
19
[Fore] a gun.” The district court noted that during the execution of a search warrant at the
address where Kimbrough had been staying, police “recovered a 9mm gun that another
codefendant had described Kimbrough as having at the meeting prior to the shooting, ” the
gun contained “9mm rounds ,” and “[t]his ammunition matched the casings recovered
where the victim had been shot.”
The district court explained its decision to deny Kimbrough’s second preliminary
application as follows:
Upon review of the facts as explained by [Kimbrough]
and codefendant Fore, it is the conclusion of this court that
[Kimbrough] was a major participant in the underlying felony.
[Kimbrough] acted with extreme indifference to human life
when he set up the r obbery and provided a deadly weapon to
another participant, where it was reasonably foreseeable—and
in this case known to [Kimbrough]—that the weapon would be
used (in this case to rob a drug dealer) in the underlying felony.

(Emphasis added.) The district court concluded that Kimbrough “provided his deadly
weapon (the gun used in the first -degree aggravated robbery), and thus was a major
participant in the commission of the crime.” The district court also concluded that
Kimbrough “acted with extreme indifference to human life when he set up the robbery and
provided a deadly weapon to another participant.”
In short, the district court’s decision to deny Kimbrough’s second preliminary
application was clearly based on its finding that Kimbrough provided the gun that was used
in the underlying offense. But whether Kimbrough provided the gun to Fore is a factual
20
dispute that was not resolved in the proceedings underlying Kimbrough’s conviction.8 As
Kimbrough argues, “there is nothing in the record in this case that establishes that [he]
provided the firearm to [Fore] that was used to kill the victim.” Moreover, the factual
dispute regarding whether Kimbrough gave Fore the murder weapon is material to a
determination of the legal issue s raised in Kimbrough’s second preliminary application:
whether he was a major participant and whether he acted with extreme indifference to
human life. Under these circumstances, the district court should not have resolved th at
material factual dispute without an evidentiary hearing .9 See Thoresen, 965 N.W.2d at
303.

8 Because the district court’s decision was based on an unresolved factual dispute, this case
is unlike Griffin. In that case, the supreme court affirmed the district court’s denial of a
preliminary application because “ [t]he facts established at trial and described in Griffin’s
prior appeals, ” as well as the supreme court’s “ prior holding that the trial evidence
supported a reasonable inference th at Griffin shot [the victim] with an intent to kill him ,”
supported the district court’s rejection of “Griffin’s apparent claim that he did not cause
the death of a human being.” Griffin, 2025 WL 2155167, at *7 (quotation and citation
omitted).
9 We are also concerned that the district court’s decision is based on an extra -record
document. Although the Act authorizes the district court to consider “relevant records in
the possession of the judicial branch” when making its reasonable -probability
determination, its reliance on Fore’s presentence -investigation report is problematic
because that document is confidential, and Kimbrough potentially did not have access to
it. 2023 Minn. Laws ch. 52, art. 4, § 24, subd. 5(d), at 8 66; see Minn. R. Pub. Access to
Recs. of Jud. Branch 4, subd. 1(b) (stating that records gathered at the request of the court
to assist in assigning an appropriate sentence are generally not accessible to the public). In
addition, Fore’s presentence-investigation report is not part of the record in this appeal, and
we generally are not authorized to consider extra -record documents. See Minn. R. Civ.
App. P. 110.01 (“The documents filed in the [district] court, the exhibits, and the transcript
of the proceedings, if any, shall constitute the record on appeal in all cases.”).

21
We recognize that the district court and the parties were in uncharted territory when
applying the Act in this case. As the state indicated to this court at oral argument , “[a]ll
parties are learning our way with this statute.” Nonetheless, because the district court relied
on a finding of material fact that was not resolved in the underlying proceeding and because
that finding was based on an undeveloped record, we conclude that the district court abused
its discretion in de nying Kimbrough’s second preliminary application. We therefore
reverse the district court’s denial of Kimbrough’s second preliminary application, and we
remand to allow Kimbrough to file a petition to vacate his conviction.
Reversed and remanded.