This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Richard James Carrillo, petitioner,


Joan Fabian, Commissioner of Corrections,


Filed May 11, 2004


Stoneburner, Judge


Washington County District Court

File No. C2032699


Bradford Colbert, Room 254, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)


Mike Hatch, Attorney General, Jennifer A. Service, Assistant Attorney General, Suite 1100, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N




            Richard James Carrillo appeals the denial of his petition for a writ of habeus corpus, arguing that he was denied due process by the imposition of a disciplinary sanction against him that resulted in a 7-day delay in his supervised release from the correctional facility where he is an inmate.  Because Carrillo did not have a liberty interest in a supervised release date to which constitutional due process applies, and, even if he had such an interest, he received all process due in a prison disciplinary proceeding, we affirm.



Appellant Richard Carrillo was sentenced to 114 months in the custody of the commissioner of corrections for his conviction of a drive-by shooting committed for the benefit of a gang.  At sentencing, the district court, under Minn. Stat. § 244.101, subds. 1, 2 (2002), explained to Carrillo that the time he spent in prison would be equal to two-thirds of the executed sentence, and that one-third of the sentence would be served on supervised release, assuming he committed no disciplinary offense in prison that resulted in the imposition of a disciplinary confinement period.  The district court explained that the actual time Carrillo serves in prison may be extended by the commissioner for commission of any disciplinary offenses in prison, and that the extension could result in his serving the entire executed sentence in prison.

            While Carrillo was incarcerated at the Minnesota Correctional Facility at Faribault, he was accused by Lieutenant Sue Williams of violating prison disciplinary rules by pushing another inmate to the ground.  Carrillo and other inmates had been outside on the prison grounds, and he and the other inmates were jogging back to the prison building as a group, when Williams saw an inmate push another inmate to the ground.  Williams was the only witness apart from the inmates.  Williams did not see the face of the inmate who pushed the other inmate down, because she was observing the group from some distance, but she kept visual contact with the aggressor inmate, and radioed to the officers at the entrance of the living unit to stop the inmate when he entered the building.  She noted that the inmate was white, and was wearing a white t-shirt and gray sweat pants.  The officers at the door stopped the inmate indicated by Williams and identified him as Carrillo.  Williams testified that there was no chance that the officers stopped the wrong inmate, because Carrillo entered the building alone.

            The commissioner charged Carrillo with violating two prison disciplinary rules, disorderly conduct and assault.  Carrillo received a written Notice of Violation, which provided a narrative of the incident, notice of the charges against him, the potential punishment, the witnesses to be called at the hearing, and the date of the hearing.  Carrillo received and returned a witness request form, which provided him a detailed list of his procedural rights in this matter.  At the disciplinary hearing, Williams testified about the incident, and Carrillo had an opportunity to question her.  Carrillo testified that he did not push anyone down and claims that the inmate who fell was Robert Mendez.  Mendez testified that he fell because he tripped and he was not pushed or shoved by anyone.  Another inmate who was present at the time also testified that Mendez fell on his own. 

            The hearing officer found Carrillo and his witnesses not credible and found Williams credible.  He found Carrillo guilty of disorderly conduct and imposed a punishment of forty-five days in segregation of which Carrillo served twenty-three with good behavior.  The standard of proof used by the hearing officer was the presence of “some evidence in the record to support the charged violation of the offender disciplinary regulations,” which is the standard of proof under the Minnesota Department of Corrections Policy 303.010, H.

            Carrillo appealed the decision of the hearing officer to the warden.  The warden denied the appeal.  Carrillo’s disciplinary violation resulted in the Commissioner of Corrections extending his supervised release date by seven days.  The added days did not increase appellant’s sentence but served to delay his supervised release.

            Carrillo petitioned the district court for a writ of habeus corpus alleging that his constitutional right to due process was violated by the use of the “some evidence” standard to delay his release date.  The district Court denied Carrillo’s petition.  This appeal followed. 



            “The Due Process Clause applies when government action deprives a person of liberty or property. . . .”  Greenholtz v. Inmates of Nebraska Penal and Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2103 (1979).  Carrillo asserts that he has a protected liberty interest in his supervised release date and that use of the “some-evidence-in-the-record” standard to support a finding that resulted in a delay in his supervised release date was an insufficient standard of proof to satisfy his right to due process. 

            In an appeal from an order involving a petition for a writ of habeus corpus, this court gives a great weight to the district court’s findings, which will be upheld if supported by the evidence.  Edstrom v. State, 378 N.W.2d 90, 93 (Minn. App. 1985), aff’d 386 N.W.2d 708 (Minn. 1986); see also State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).  Questions of law are reviewed de novo.  State ex rel McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993). 

            Carrillo relies on Greenholtz, inwhich the United States Supreme Court held that a Nebraska parole statute creates an expectancy of release that “is entitled to some measure of constitutional protection.”  Greenholtz, 442 U.S. at 12, 99 S. Ct. at 2106.  Because the unique structure and language of the Nebraska statute is not present in this case, we conclude that Greenholtz does not provide the authority that Carrillo asserts regarding a liberty interest in his supervised release date.  And, this court has specifically determined that delay of an early release date does not constitute impairment of a protected liberty interest.  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998). 

            In cases where a fundamental right is not implicated, judicial scrutiny of state action is not exacting.  State v. Behl, 564 N.W.2d 560, 567 (Minn. 1997).  Carrillo has not identified a protected liberty interest that requires heightened judicial scrutiny of the commissioner’s action. 

            Furthermore, as noted by the district court, the prison regulations and procedures comply with procedural due process requirements identified in federal case law as necessary before an inmate can be deprived of a protected liberty interest. 

Wolff [ v. McDonnell]set out the procedural hearing requirements for prison discipline:  an inmate is entitled to (1) advance written notice of the claimed violation at least 24 hours before the disciplinary hearing; (2) to call witnesses and to present documentary evidence in his defense if doing so will not jeopardize institutional safety or correctional goals; and (3) to receive a written statement from an impartial decisionmaker identifying the evidence relied on and the reasons for the disciplinary action.


Hrbek v. Nix, 12 F. 3d 777, 780 (8th Cir. 1993) (citing Wolf v. McDonnell, 418 U.S. 539, 563-67, 94 S. Ct. 2963, 2978-80 (1974)).  The procedure in this case met all of these requirements. 

            And in federal cases involving deprivation of a protected liberty interest, the “some evidence” standard has been upheld.  In Goff v. Dailey, the Eighth Circuit stated: “Due process does not entitle prison inmates to a hearing at which they are on equal footing with the prison authorities.  Inmates are certainly not constitutionally entitled to the level playing field created by a fully adversarial proceeding which uses a preponderance of the evidence standard.”  991 F.2d 1437, 1442 (8th Cir. 1993), cert. denied 510 U.S 997, 114 S. Ct. 564 (1993).  The Goff opinion holds that the use of the “some evidence” standard in prison disciplinary hearings satisfies an inmate’s right to due process.  Id.[1] 

            Therefore, even if Carrillo had shown a protected liberty interest in his supervised release date, he received all process due, including the appropriate standard of proof.  The district court’s denial of Carrillo’s petition for a writ of habeus corpus is supported by the evidence and was not in error. 



[1] Carrillo urges this court to adopt the reasoning of the Vermont Supreme Court expressed in LaFaso v. Patrissi, 633 A.2d 695 (Vt. 1993), that the “some evidence” standard is only appropriate for judicial review of the actions of prison authorities and not the proof necessary for a fact-finder to find that an inmate violated a disciplinary rule.  Id. at 698.  We decline to do so based on our prior holding that inmates do not have a liberty interest in a supervised release date and our deference to the reasoning of the Eighth Circuit Court of Appeals in Goff, specifically rejecting the argument that the “some evidence” standard only applies to judicial review.  We disagree with the Vermont court that the Eighth Circuit’s analysis in Goff is “incomplete.”  See id. at 699.