This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1795
Hassan Mohamed Abdillahi, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent
Filed August 17, 2015
Affirmed
Worke, Judge
Hennepin County District Court
File Nos. 27-CR-08-52463, 27-CR-CV-14-42
Hassan M. Abdillahi, Bayport, Minnesota (pro se appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)
Considered and decided by Worke, Presiding Judge; Reilly, Judge; and
Stoneburner, Judge.*
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
WORKE, Judge
In appellant’s third appeal of his second-degree intentional murder conviction, he
argues that his conviction should be reversed, or alternatively that he is entitled to an
evidentiary hearing or new trial, because (1) false witness testimony led to his conviction;
(2) his incarceration violates the Fourteenth Amendment; (3) his trial counsel was
ineffective; (4) the district court erred by denying his motion for postconviction
discovery; and (5) the prosecutor was biased. We affirm.
FACTS
A.H. was shot and killed in September 2008 outside a mall in Minneapolis. A
surveillance video showed three people standing outside the mall: A.H., A.I., and S.M. A
hooded individual spoke with the three people then exited the video frame. A.I. and S.M.
entered the mall, and the hooded individual returned and shot A.H. A.I. and S.M.
identified appellant Hassan Mohamed Abdillahi as the hooded individual. A.I. testified
to this identification at trial, but S.M. refused to testify and was held in contempt of court.
Another trial witness, K.O., testified that in early September 2008, Abdillahi told him that
he was going to kill A.H. in retaliation for the murder of Abdillahi’s cousin by another
individual who had since fled the country. In June 2009, a jury found Abdillahi guilty of
second-degree intentional murder. A.I. was murdered by an unknown assailant in
October 2009.
In November 2009, Abdillahi appealed his conviction, arguing that: (1) the
evidence was insufficient to sustain the guilty verdict, (2) the district court abused its
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discretion by admitting Spreigl evidence and giving an erroneous jury instruction, (3) the
prosecutor committed misconduct, (4) the district court abused its discretion by denying
his discovery request regarding two unrelated homicide investigations, and (5) the
cumulative effect of these errors denied him a fair trial. See State v. Abdillahi, No. A09-
2011, 2011 WL 691623, at *1 (Minn. App. Mar. 1, 2011), review denied (Minn. May 17,
2011). This court affirmed on all issues. Id.
Abdillahi then petitioned for postconviction relief. In August 2012, Abdillahi
appealed the district court’s denial of his first postconviction petition, arguing that the
district court erred by concluding that (1) he failed to prove his ineffective-assistance-of-
counsel claims and (2) his allegations that the admission of Spreigl evidence was
erroneous and that the complaint contained factual errors that were meritless and Knaffla-
barred. See Abdillahi v. State, No. A12-1477, 2013 WL 2924900, at *1 (Minn. App. June
17, 2013), review denied (Minn. Aug. 20, 2013). This court again affirmed on all issues.
Id.
In August 2013, Abdillahi filed a second postconviction petition along with
several collateral motions. He moved the district court to compel discovery and hold an
evidentiary hearing on his claim of newly discovered evidence of falsified trial testimony,
determine whether trial and appellate counsel were ineffective, and determine whether
the prosecutor was motivated by “discriminatory purposes.” The district court granted an
evidentiary hearing on the claim of falsified testimony and denied the other requests.
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After the evidentiary hearing, the district court denied Abdillahi’s request for a
new trial, concluding that Abdillahi failed to meet his burden to show that there was false
testimony or recantation. This appeal follows.
DECISION
False Testimony
Abdillahi first argues that he is entitled to a new trial because two witnesses, A.I.
and K.O., falsely testified at his trial and because A.I. recanted shortly after trial. The
court may grant a new trial based on false testimony when: (1) the court is reasonably
satisfied that the testimony was false; (2) the jury might have reached a different
conclusion without the testimony; and (3) the petitioner was surprised by the testimony
and was unable to counteract it or did not know it was false until after the trial. State v.
Nicks, 831 N.W.2d 493, 511 (Minn. 2013) (citing Larrison v. United States, 24 F.2d 82,
87-88 (7th Cir. 1928). We review the district court’s postconviction decision to deny a
new trial for an abuse of discretion, and our review “is limited to whether there is
sufficient evidence to sustain the [district] court’s findings.” State v. Hooper, 620
N.W.2d 31, 40 (Minn. 2000). “Courts have traditionally looked with disfavor on motions
for a new trial based on recantations unless extraordinary or unusual circumstances
exist.” Daniels v. State, 447 N.W.2d 187, 188 (Minn. 1989).
The district court held, as a preliminary bar, that A.I.’s alleged recantation was
inadmissible hearsay evidence. Hearsay is an out-of-court statement made by a declarant
offered to prove the truth of the matter asserted. Minn. R. Evid. 801(c). Hearsay is
inadmissible unless there is an exception. Minn. R. Evid. 802.
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Abdillahi asserts that A.I.’s recantation falls under a hearsay exception because it
was a sufficiently corroborated statement against penal interest. A declarant’s statement
is not excluded by the hearsay rule if the declarant is unavailable and the statement is
against the declarant’s interest. Minn. R. Evid. 804(a)(4),(b)(3). A declarant is
unavailable if he “is unable to be present or to testify at the hearing because of death.”
Minn. R. Evid. 804(a)(4). Because A.I. is deceased, he is unavailable. A statement is
against interest if:
at the time of its making [it is] so far contrary to the
declarant’s pecuniary or proprietary interest, or so far tended
to subject the declarant to civil or criminal liability . . . that a
reasonable person in the declarant’s position would not have
made the statement unless believing it to be true.
Minn. R. Evid. 804(b)(3). Because A.I.’s recantation would make his trial testimony
perjury, it was a statement against penal interest. But a statement that exposes the
declarant to criminal liability and is offered to exculpate the accused is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Id. To determine if a statement is corroborated, the court considers the totality of the
circumstances, utilizing the following factors:
(1) whether other evidence corroborates the facts in the
hearsay statement; (2) the extent to which the hearsay
statement is consistent with the declarant’s prior testimony
and other statements; (3) the relationship between the
declarant and other witnesses and parties, including the
defendant; (4) whether the declarant has reason to fabricate
the statement; (5) the overall credibility and character of the
declarant; and (6) the timing of the statement.
5
Ferguson v. State, 826 N.W.2d 808, 813 (Minn. 2013). “[T]he relevance of each of the
six factors will vary depending on the facts of each case.” Dobbins v. State, 845 N.W.2d
148, 153 (Minn. 2013), cert. denied, 134 S. Ct. 1913 (2014).
Abdillahi claims that A.I’s recantation is corroborated by other facts because
Abdillahi had an alibi for the time of the murder and A.I. told law enforcement and the
county attorney’s office that he was not able to identify Abdillahi. But Abdillahi’s own
alibi claim does not necessarily corroborate A.I.’s alleged recantation, and Abdillahi does
not provide evidence for his assertion that A.I. previously said he was unable to identify
Abdillahi. This factor weighs against corroboration.
The second factor also weighs against corroboration because the alleged
recantation is inconsistent with A.I.’s testimony and evidence in the record.
The district court did not address the third factor, the relationship between the
parties. Abdillahi does not provide any record-supported arguments on this factor.
While Abdillahi asserts that A.I. had no reason to fabricate his recantation, based
on the record, A.I. may have been rightfully afraid—he was murdered by an unknown
assailant a few months after the trial. Thus, the fourth factor also weighs against
corroboration.
The fifth factor weighs against corroboration because there is no evidence in the
record that A.I. was not credible or had a history of falsely accusing others of crimes.
We agree with the district court’s analysis that the timing of A.I.’s recantation, the
sixth factor, was “highly suspect.” A.I. allegedly recanted between Abdillahi’s trial and
sentencing, but the people he recanted to, A.A. and H.I., did not come forward for over
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three years. The district court noted that “neither witness offered a credible explanation
for the delay.” Based on these factors, the district court did not abuse its discretion by
finding that A.I.’s recantation was not corroborated and therefore was inadmissible
hearsay.
Abdillahi claims that the witnesses who testified that A.I. recanted, A.A. and H.I.,
were credible. But we defer to the district court on matters of credibility, State v.
Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff’d, 508 U.S. 366, 113 S. Ct. 2130
(1993), and the district court found that neither witness was credible. The court found
A.A.’s testimony, that A.I. told him he never saw the shooter and only testified against
Abdillahi because his life was threatened, not credible because the surveillance video
shows A.I. with the victim outside the mall when the shooter walked by. The district
court found H.I.’s testimony, that A.I. did not see the shooter and was not at the mall that
evening, not credible for the same reason and because H.I.’s previous affidavit did not
mention these facts.
Abdillahi claims that the district court misinterpreted A.A. and H.I.’s testimony to
mean that A.I. said he was not at the mall, when instead A.I. said only that he “didn’t
really see [the shooter],” that “he didn’t see nobody,” and that he “didn’t see who did it.”
But H.I. testified that A.I. “said he wasn’t there. Like he wasn’t at this . . . mall or
anything. They coerced him to say that.” And the other statement Abdillahi points to,
that A.I. did not see who shot A.H., does not undermine the district court’s findings
because it is undisputed that A.I. did not witness the actual murder.
7
Abdillahi also argues that A.I.’s recantation was admissible as an excited
utterance. Abdillahi provides no legal citation or analysis regarding this argument, and
we decline to address this argument in the absence of adequate briefing. State v. Bartylla,
755 N.W.2d 8, 22-23 (Minn. 2008). Because we conclude that A.I.’s alleged recantation
is inadmissible hearsay, we need not reach Abdillahi’s claim that the recantation was
admissible as substantive evidence because it violated his right to due process.
Abdillahi next argues that the district court erred when it found that K.O. was
competent and available to testify at trial and the postconviction hearing. “The
determination of a witness’ competency is one peculiarly for the [district] court to
consider.” State v. Lau, 409 N.W.2d 275, 277 (Minn. App. 1987). We review the
district court’s competency determination for an abuse of discretion. State v. Sime, 669
N.W.2d 922, 925 (Minn. App. 2003).
Abdillahi asserts that the court must evaluate whether the witness has the ability to
recall facts and the capacity to tell the truth. But this two-part evaluation refers to a child
witness’s competency to testify. State v. Struss, 404 N.W.2d 811, 814 (Minn. App.
1987), review denied (Minn. June 9, 1987). And while Abdillahi argues that the district
court erred by relying on K.O.’s rule 20 evaluation because a rule 20 evaluation is too
high of a standard to determine a witness’s (and not a criminal defendant’s) competency,
the court considered both the rule 20 and its in camera questioning of K.O. The district
court noted that K.O. “tracked the questions and provided responsive answers” and that
K.O. specifically denied telling a third party, An. A., that his trial testimony was false.
8
On this record, the district court did not abuse its discretion in determining that K.O. was
competent to testify.
Abdillahi next argues that K.O. was unavailable because he could not remember
telling An. A. that he testified falsely. A witness is unavailable to testify regarding a
proffered hearsay statement if he “testifies to a lack of memory of the subject matter of
the . . . statement.” Minn. R. Evid. 804(a)(3). But K.O. did not testify that he lacked a
memory of his conversation with An. A.; K.O. denied having the conversation.
Therefore, the district court properly found K.O. available.
Abdillahi additionally asserts that K.O.’s alleged statements to An. A. must be
admissible as substantive evidence because Abdillahi’s right to due process would be
violated if he cannot show that K.O. made false statements. But because K.O. was
available and competent to testify, the statements do not fall under a hearsay exception
and this argument is without merit. Further, Abdillahi’s assertion that his right to due
process was violated because his postconviction attorney did not timely challenge K.O.’s
competency is not relevant because due process refers to government actors and his
attorney is a private party whose conduct “generally lies beyond the scope of the United
States Constitution.” State v. Beecroft, 813 N.W.2d 814, 837 (Minn. 2012).1
Because we conclude that there was sufficient evidence for the district court to
determine that it was not satisfied that the witnesses’ testimony was false, the district
1
Abdillahi also claims that the district court judge was biased, and requests that we
remand for a hearing in front of an unbiased judge, partially because he has not received
complete transcripts. But the district court granted Abdillahi’s motion for complete
transcripts. This court denied a separate motion for complete transcripts as unnecessary
because the district court had already granted his motion for complete transcripts.
9
court did not abuse its discretion by denying Abdillahi a new trial and we need not
address the second and third Larrison prongs.
Actual Innocence
Abdillahi argues that the district court erred by not allowing him to amend his
postconviction pleading to claim that his conviction was unconstitutional based on his
actual innocence. But Abdillahi does not provide any relevant authority for why the
district court must allow an amendment when he cites only civil (and not criminal)
pleading rules.
Regardless, Abdillahi’s claims of actual innocence fail on the merits. Abdillahi
asserts that there is sufficient proof of his actual innocence based on his own trial
testimony and because A.I. recanted and K.O. was not competent to testify. But we
affirm the district court’s findings that A.I. did not satisfactorily recant and that K.O. was
competent to testify, essentially leaving Abdillahi with a sufficiency-of-the-evidence
claim. And this court has already rejected Abdillahi’s sufficiency-of-the-evidence claim
on direct appeal. Abdillahi is therefore Knaffla-barred from raising this claim again. See
Powers v. State, 731 N.W.2d 499, 501 (Minn. 2007) (holding that a postconviction
petition may not raise issues that are “essentially the same” as those raised on direct
appeal); State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976) (stating that
all matters raised on direct appeal, or known but not raised, will not be considered in
postconviction proceedings).
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Ineffective assistance of counsel
Abdillahi next argues that his trial counsel was ineffective because he “forgot” to
call a witness to rebut K.O.’s testimony. Abdillahi raised the issue of ineffective
assistance of both trial and appellate counsel in his first postconviction petition. See
Jones v. State, 671 N.W.2d 743, 746 (Minn. 2003) (extending the Knaffla-bar to matters
raised in a prior postconviction-relief petition). While the Knaffla rule has two
exceptions that allow review if a novel legal issue is presented or if review is necessary in
the interests of justice, Schleicher v. State, 718 N.W.2d 440, 447 (Minn. 2006),
Abdillahi’s claim does not fall under either of these exceptions. No novel legal issue is
raised, and it is not in the interests of justice for this court to review the same issue again.
Therefore, Abdillahi’s ineffective-assistance-of-counsel claim is Knaffla-barred.
Postconviction discovery
Abdillahi next requests that this court compel disclosure of A.I.’s pretrial
statements. But this court denied that request on March 11, 2015. Thus, we decline to
address it again.
Prosecutor bias
Abdillahi finally argues that he is entitled to a new trial or an evidentiary hearing
because his right to equal protection was violated when the prosecuting attorney on his
case demonstrated racial bias. Abdillahi claims that during an unrelated trial of a Somali
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man seven months after his conviction, the prosecuting attorney posted “anti[-]Somali
racist comments” on Facebook. 2
The district court found that because the alleged comments were made seven
months after Abdillahi’s conviction, they could not have biased his proceedings and
denied an evidentiary hearing on the matter. This court reviews the denial of a request
for an evidentiary hearing for an abuse of discretion. Riley v. State, 819 N.W.2d 162, 167
(Minn. 2012). The court should resolve any doubt about whether an evidentiary hearing
should be held in the petitioner’s favor. Bobo v. State, 820 N.W.2d 511, 516 (Minn.
2012). But an evidentiary hearing is not required when a petitioner makes an argument
without factual support. Laine v. State, 786 N.W.2d 635, 637 (Minn. 2010).
Abdillahi asserts that he is entitled to discovery and an evidentiary hearing on
prosecutor bias because of the alleged Facebook comments. But, like the district court
found, he does not show how these comments affected his conviction. Abdillahi cites
several equal-protection cases, but they primarily regard selective prosecution. See, e.g.,
United States v. Armstrong, 517 U.S. 456, 456, 116 S. Ct. 1480, 1482 (1996) (holding
that to establish entitlement to discovery defendant must produce credible evidence that
similarly situated defendants of other races were not prosecuted); Wayte v. United States,
470 U.S. 598, 599, 105 S. Ct. 1524, 1526 (1985) (holding that a passive enforcement
policy for draft nonregistrants did not violate equal protection);. Abdillahi’s second-
2
Abdillahi submitted affidavits from public defenders claiming that the prosecutor posted
that she had to “keep the streets of Minneapolis safe from the [sic] Somalias.” But he has
not provided the actual Facebook posts and there is generally no right to postconviction
discovery. Thompson v. State, 284 Minn. 274, 277, 170 N.W.2d 101, 103-04 (1969).
12
degree murder offense was unlikely to be selectively prosecuted and he provides no facts
to demonstrate that race or a discriminatory motive affected the choice to prosecute him
or his right to a fair trial.3 Therefore, the district court did not abuse its discretion in
denying an evidentiary hearing and discovery on this issue.
Affirmed.
3
We note that the postings, if true, are egregious and may constitute professional
misconduct, but this alone does not entitle Abdillahi to an evidentiary hearing. See
Zenanko v. State, 587 N.W.2d 642, 645 (Minn. 1998) (“An evidentiary hearing is not
required unless facts are alleged which, if proven true, would be sufficient to support the
petitioner’s request for relief.”).
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