IN COURT OF APPEALS
John William Henderson, petitioner,
Department of Corrections,
Filed June 6, 2006
Anoka County District Court
File No. C3-05-11111
Bradford Colbert, Charity Delich (certified
student attorney), Room 254,
Eric L. Lipman,
Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.
S Y L L A B U S
An inmate who has exhausted his right to direct appeal no longer has a Fifth Amendment privilege not to discuss his offense of conviction in a mandated, in-prison, sex-offender treatment program. The possibility that the inmate may still collaterally attack the conviction by postconviction petition or by other means does not extend this privilege absent a showing by the inmate that such proceedings are necessary to correct a manifest injustice.
O P I N I O N
This appeal is from an order denying appellant John Henderson’s petition for a writ of habeas corpus, which challenged the respondent Commissioner of Corrections’ decision extending his incarceration based on his refusal to participate in a mandated, in-prison sex-offender treatment program. Because we conclude that appellant no longer had a Fifth Amendment privilege threatened by the participation required in the program, we affirm.
Appellant was sentenced in February
2002 to 91 months in prison for first-degree criminal-sexual conduct. Appellant’s conviction was affirmed on direct
appeal on May 6, 2003. State v. Henderson, No. C5-02-780 (Minn.
App. May 6, 2003), review denied (
Appellant later filed a notice indicating that he was claiming a Fifth Amendment privilege not to discuss his offense in the SOTP. It is not clear that he gave this reason on November 5. The Department of Corrections (DOC) scheduled a disciplinary hearing. After appellant received one continuance of the hearing in order to prepare his defense, he pleaded guilty “with an explanation.” The explanation apparently was that appellant had been diagnosed with cancer and was not ready to proceed. The DOC imposed a sanction of 45 additional days of incarceration for appellant’s refusal to participate in the SOTP. In December 2003, the DOC denied appellant’s administrative appeal.
2004, appellant filed a petition for a writ of habeas corpus in the United
States District Court, District of Minnesota.
The petition raised the same issues that had been the subject of
appellant’s earlier state court appeal.
By order, the U.S. District Court denied the petition, dismissed the
case with prejudice, and refused to certify the case for appeal under 25 U.S.C.
§ 2253(c)(1)(B) (2000).
October 19, 2005, appellant filed this state court habeas corpus petition
challenging the DOC’s decision to sanction him for refusal to participate in
the SOTP. Appellant argued that the
penalty imposed on him violated his Fifth Amendment privilege against
self-incrimination. The district court
denied the petition without holding an evidentiary hearing. The district court followed the supreme
court’s decision in State ex rel. Morrow
v. LaFleur, 590 N.W.2d 787 (
1. Does the extended-incarceration sanction imposed on appellant constitute “compulsion” for purposes of the Fifth Amendment?
2. Did appellant’s Fifth Amendment privilege remain in effect after his direct appeal was decided?
The district court’s findings in
ruling on a petition for habeas corpus are entitled to great weight and will be
upheld if reasonably supported by the evidence.
Northwest v. LaFleur, 583
N.W.2d 589, 591 (
1. “Compulsion” Under the Fifth Amendment
Appellant argues that the extension of his incarceration time, which was the penalty imposed for his refusal to participate in the SOTP, constituted “compulsion” for purposes of the Fifth Amendment privilege against self-incrimination. As the district court found, appellant would have been required to discuss his offense of conviction in the SOTP.
Respondent cites a 1999 decision of the supreme court
rejecting a similar argument.
Respondent argues that McKune does not affect the Morrow
court’s analysis of the Fifth Amendment element of “compulsion.” See
generally U.S. Const. amend. V (providing that no person shall be
“compelled” to be a witness against himself in a criminal case); Morrow, 590 N.W.2d at 792 (noting that
“[c]ompulsion is the touchstone of the Fifth Amendment” (quotation omitted)). But this court held in Johnson that because there was no majority in McKune, Justice O’Connor’s concurrence advanced the narrowest rationale
in support of the result and constituted the “holding” of McKune. Johnson, 711 N.W.2d at 543. Justice
O’Connor’s concurrence indicated that an extension of the period of
incarceration would easily meet the established standard for “compulsion” under
the Fifth Amendment.
2. Duration of Fifth Amendment Privilege
Appellant argues that he retained a Fifth Amendment privilege not to discuss his offense in November 2003, when his direct appeal had already been decided, because he subsequently filed a federal petition for habeas corpus relief and was contemplating a state postconviction petition.
In Johnson, the
inmate’s direct appeal from conviction was still pending. 711 N.W.2d at 542. This court in Johnson ruled that the inmate’s Fifth Amendment privilege still
applied, citing United States v. Duchi,
944 F.2d 391, 394 (8th Cir. 1991), in a supporting footnote. 711 N.W.2d at 542 n.1; see also Martin v. Flanagan, 789 A.2d 979, 984-85 n.4 (
The United States Supreme Court has tangentially
addressed the problems of defining when the privilege against
self-incrimination ends. See Mitchell v.
[t]he better rule, however, appears to be that the Fifth Amendment right not to testify concerning transactions for which one has been convicted continues until the time for appeal has expired or until the conviction has been affirmed on appeal.
944 F.2d at 394.
Both Mitchell and Duchi appear to refer to the direct appeal. Neither addresses the multiple avenues of collateral review and the appellate review they may entail. Extending the Mitchell and Duchi holdings to collateral attacks such as a federal habeas petition or a state postconviction petition would extend almost indefinitely the Fifth Amendment privilege. Neither case requires that result. At the same time, cases may arise in which a fundamental injustice occurs that only can be addressed in a collateral review. To say the Fifth Amendment should never survive to collateral proceedings is to ignore such a possibility.
Appellant cites Thomas
v. United States, 368 F.2d 941 (5th Cir. 1966), in support of his claim
that his Fifth Amendment privilege remained even though his conviction had been
affirmed on direct appeal. In Thomas, the court noted that the
defendant had open to him “the processes of motion for new trial . . . ,
appeal, petition for certiorari, and collateral attack.”
We note that a conviction is considered final, for
purposes of the retroactive application of new rules, when the time to file a
direct appeal has expired or the direct appeal has been decided and the time to
petition for a writ of certiorari has expired.
State v. Petschl, 692 N.W.2d
463, 470 (
In 2004, appellant petitioned for habeas corpus in the
In the end, we must balance the interests of the state against the rights of criminal defendants. An appropriate balance that limits the duration of the Fifth Amendment privilege was observed in this case. Appellant refused to participate in the SOTP in July 2002, when his direct appeal was still pending. The DOC imposed no sanctions on appellant at the time of that refusal. Appellant was next interviewed for the SOTP in November 2003, after his direct appeal had been decided. By postponing the necessity that appellant make a decision about the SOTP, DOC honored appellant’s Fifth Amendment privilege. This delay gave appellant a fair and reasonable opportunity to pursue his legal rights on appeal and when not successful, absent a showing of manifest injustice, set a time certain when he would be required to participate in treatment. This balance properly considered the competing interests. Under appellant’s position, the Fifth Amendment privilege would virtually never end because an inmate would always have avenues of collateral challenge available to him. Treatment could be avoided indefinitely.
Based on the record before us, we conclude that appellant no longer has a Fifth Amendment right to remain silent about the events that lead to his conviction.
D E C I S I O N
We agree with appellant that even a modest extension of his incarceration constitutes compulsion for purposes of the Fifth Amendment. However, absent a showing of manifest injustice, once appellant’s direct review had concluded, he no longer enjoyed a Fifth Amendment privilege to refuse to participate in the sex-offender treatment program, in which he could be required to discuss his offense. Accordingly, we conclude that the district court properly denied the petition for a writ of habeas corpus.