This opinion will be unpublished and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

A14-1733

Julio Cesar Garcia-Gomez, petitioner, 

Appellant,

vs. 

State of Minnesota, 

Respondent.

Filed August 31, 2015

Affirmed

Peterson, Judge

Olmsted County District Court

File No. 55-CR-11-950

Allan Witz, Witz Law, P.A., Rochester, Minnesota (for appellant)

Lori Swanson, Attorney General, St. Paul, Minnesota; and 

Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County 

Attorney, Rochester, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and 

Hooten, Judge. 

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

In this appeal from a denial of postconviction relief, appellant argues that his 

petition satisfied the interests-of-justice exception to the two-year limitations period and 
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that he should be entitled to withdraw his plea because his attorney provided ineffective 

assistance by failing to advise him of potential immigration consequences. We affirm.

FACTS

Appellant Julio Cesar Garcia-Gomez is not a United States citizen. On February 

17, 2011, appellant, represented by counsel, pleaded guilty to one count of grossmisdemeanor driving while impaired and one count of misdemeanor domestic assault. 

Appellant signed a standard-form plea petition, which stated in paragraph six, “I 

understand that if I am not a citizen of the United States, my plea of guilty to this crime 

may result in deportation, exclusion from admission to the United States or denial of 

naturalization as a United States citizen.” When questioned by the district court about the 

plea petition, appellant stated that he read the entire document before signing it, went 

through it with his attorney, and felt that he fully understood it and did not need 

additional time to discuss it with his attorney.

On May 9, 2013, appellant received notice that proceedings to remove him from 

the United States had been commenced. The reason for removal was appellant’s guilty

plea to domestic assault.

On April 10, 2014, appellant, represented by a new attorney, filed a petition for 

postconviction relief, seeking to withdraw his February 17, 2011 guilty plea on the 

ground that his first attorney provided ineffective assistance by failing to advise him of 

the potential immigration consequences of pleading guilty to domestic assault. See 

Padilla v. Kentucky, 559 U.S. 356, 374, 130 S. Ct. 1473, 1486 (2010) (holding that the 

Sixth Amendment to the United States Constitution requires counsel to provide legal 
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advice regarding the immigration consequences of a guilty plea). At the evidentiary 

hearing on the postconviction petition, appellant’s first attorney testified that he did not 

specifically recall going through the plea petition with appellant but that his standard 

practice is to review the petition line-by-line with a defendant. The attorney testified that 

he knew that appellant is not a United States citizen and, therefore, he would have 

specifically gone over paragraph six of the plea petition with appellant and advised him 

that a plea could result in future immigration consequences. The attorney testified that 

when a defendant is not a United States citizen, his standard practice is to tell the 

defendant that he can take time to consult with an immigration attorney if desired. 

The district court dismissed appellant’s petition as untimely under the two-year 

limitations period in Minn. Stat. § 590.01, subd. 4(a)(1) (2014). This appeal followed.

D E C I S I O N

An appellate court reviews the denial of a postconviction petition for an abuse of 

discretion. Riley v. State, 819 N.W.2d 162, 167 (Minn. 2012). “A postconviction 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.” Id. (quotation omitted). Legal issues are 

reviewed de novo, but review of the postconviction court’s factual findings is limited to 

whether the record evidence is sufficient to support the findings. Rickert v. State, 795 

N.W.2d 236, 239 (Minn. 2011).

When no direct appeal is filed, a postconviction petition must be filed within two 

years of “the entry of judgment of conviction or sentence.” Minn. Stat. § 590.01, subd. 

4(a)(1). Appellant was sentenced on February 17, 2011, so the two-year limitations 
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period expired on February 17, 2013, more than one year before appellant filed his 

postconviction petition. But the court may hear an untimely petition if it meets one of 

five statutory exceptions and is “filed within two years of the date the claim arises.” Id., 

subd. 4(b)-(c) (2014). Appellant argues that his petition qualifies under the interests-ofjustice exception, which requires the petitioner to establish “that the petition is not 

frivolous and is in the interests of justice.” Id., subd. 4(b)(5).

In Sanchez v. State, the supreme court held that a claim under the interests-ofjustice exception arises “when the petitioner knew or should have known that he had a 

claim.” 816 N.W.2d 550, 560 (Minn. 2012). In Sanchez, the petitioner argued that his 

claim arose only after “he had actual, subjective knowledge” of the claim. Id. at 558.

The supreme court specifically rejected use of a subjective standard and adopted the 

objective “knew or should have known” standard. Id. at 558-60. When a claim arises 

under the interests-of-justice exception is a question of fact that we review for clear error. 

Id. at 560.

Appellant argues that “[n]either [he], nor any other petitioner on substantially the 

same facts could objectively have known that their counsel was ineffective until a 

triggering event like a notice of deportation.” But the district court found:

[Appellant], in the exercise of reasonable diligence, 

should have found out that domestic violence is a deportable 

offense. He was expressly alerted to this possibility on 

February 17, 2011 by the terms of his written plea petition 

and by his attorney’s advice. He was told that he may wish to 

consult with an immigration expert. It is not reasonable,

under these circumstances, that [appellant] remained 

oblivious to this fact for some 27 months.
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The record evidence supports the district court’s finding that appellant was alerted to the 

possibility that domestic assault is a deportable offense on February 17, 2011. Under 

Sanchez, the district court did not err in finding that appellant’s interests-of-justice claim 

arose more than two years before he filed his postconviction petition.

Even if appellant’s interests-of-justice claim arose within two years of when he 

filed his postconviction petition, the interests-of-justice exception does not apply. The 

supreme court has “made clear” that “the interests-of-justice referred to in subdivision

4(b)(5) relate to the reason the petition was filed after the 2–year time limit in 

subdivision 4(a), not the substantive claims in the petition.” Id. at 557.

In other words, 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).

Id. The injustice claimed by appellant, that before he received notice of proceedings to 

remove him from the United States, he did not know that he could be deported for 

pleading guilty to domestic assault, is identical to the substantive claim of ineffective 

assistance raised in the postconviction petition.

Finally, appellant argues that his untimeliness should be excused under the 

doctrine of equitable tolling. The supreme court has declined to decide whether the time 

limit in subdivision 4(c) is subject to equitable tolling. Id. 560-61 (stating that time limit 
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in subdivision 4(c) is nonjurisdictional but declining to decide whether it is subject to 

equitable tolling). Even if the time limit is subject to equitable tolling, equitable tolling 

only applies when an “extraordinary circumstance” is present; an extraordinary 

circumstance is something completely outside of the defendant’s control, for example, a 

state actor or other “paramount authority” prevented a defendant from diligently pursuing 

relief. Id. at 562 (quotation omitted). There is no record evidence that anything

prevented appellant from diligently pursuing relief. To the contrary, appellant’s attorney 

advised him on February 17, 2011, that a guilty plea could have future immigration 

consequences and offered him time to consult with an immigration attorney.

The district court did not abuse its discretion in denying appellant postconviction 

relief.

Affirmed.