This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota, ex rel. Garry Johnson, petitioner,





Joan Fabian, Commissioner of Corrections,



Filed March 29, 2005


Toussaint, Chief Judge


Chisago County District Court

File No. CV-04-131


Cathryn Middlebrook, Assistant State Public Defender, 2221 University Ave. S.E., Suite 425, Minneapolis, MN  55414 (for appellant)


Mike Hatch, Attorney General, Mark Levinger, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, Minnesota 55101 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This expedited appeal is from an order denying appellant’s petition for a writ of habeas corpus challenging the revocation of his supervised release.  We affirm.          



            Appellant Garry Johnson filed a petition for a writ of habeas corpus, challenging the revocation of his supervised release by the Department of Corrections (DOC).  The district court denied the petition without an evidentiary hearing, concluding that a hearing was not required, that the June 10, 2004 revocation did not deny Johnson his right to due process, and that the revocation was appropriate.

This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings on appeal if they are reasonably supported by the evidence.  State ex rel. Allen v. Fabian, 658 N.W.2d 913, 915 (Minn. App. 2003).  This court, however, reviews questions of law de novo.  Id.  

            Initially, Johnson argues that the district court denied him his right to due process by deciding the habeas petition without an evidentiary hearing and without making factual findings.  A habeas petitioner is entitled to an evidentiary hearing only if there is a material factual dispute.  See Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988). 

Johnson has not shown that the factual issues posed by his affidavit and the affidavits of the DOC officers and agents concern material facts.  Johnson claims that he was told he could be “out on the street” in Crookston looking for a job and a place to live from 9 a.m. to 3 p.m. while he was on intensive supervised release.  Two of the DOC affidavits disputed this claim.  But it is undisputed that Johnson was on intensive supervised release (ISR), requiring that he find a suitable residence at which he would be under “house arrest” for the first four months of ISR.  Johnson cites no statute, rule, or regulation requiring that the DOC provide him with unsupervised release from the jail so he could search for a suitable residence.  Because there appears to be no statute or rule requiring the DOC to release Johnson for several hours a day to search for a residence, it is immaterial whether Johnson was told he could do so.

Johnson also challenges the hearing officer’s finding that Johnson stopped looking for work and a residence after May 11.  But again, there is no showing that a statute, rule, or regulation prevented the DOC from revoking Johnson’s release even though he was actively seeking work and a residence.  Therefore, whether Johnson was actively looking is not a material fact.  The undisputed fact, which appears to be sufficient by itself to support revocation, is that no suitable residence and no suitable job had been found at the end of the 60-day period. 

The strict conditions of ISR put Johnson in a difficult position after his release from prison because he had not found a residence at that point.  But the DOC was justified in carefully monitoring Johnson’s transition to supervised release and in not releasing him into the community until he could be properly supervised.  See generally Minn. Stat. § 244.05, subd. 1c (2004) (requiring DOC to provide escort for inmate on supervised release who is released to halfway house or other residential program).  Because Johnson was supposed to be placed on “house arrest” upon his release, the Polk County Jail was used to facilitate this transition, and the DOC allowed Johnson to conduct his search for a residence from there.  But this temporary confinement did not constitute a continuation of Johnson’s prison term or a denial of supervised release. 

            Johnson’s argument that he was denied due process by the DOC’s failure to honor his supervised release date, therefore, is without merit.  Johnson was released on March 16, 2004, from prison.  His supervised release date was honored because he left the North Dakota prison, and, although the DOC immediately transported him to the Polk County Jail, this was not to continue Johnson’s incarceration but to implement the ISR conditions in the absence of an alternative placement.

            Although a “release” to a county jail may have seemed illusory to Johnson, he cites no case law or other authority preventing the DOC from using the jail to implement ISR given the lack of any suitable residence for him.  The ISR conditions posed difficulties for Johnson, but that does not make them illegal.  See generally State v. Murphy, 545 N.W.2d 917-918 (Minn. 1996) (declining to address premature challenge to condition that defendant serve his probation in another state).  The fact that the availability of a suitable residence and employment may have been a factor outside of Johnson’s control does not prevent the DOC from revoking release based on his failure to meet those conditions.  See generally State v. Morrow, 492 N.W.2d 539, 543-44 (Minn. App. 1992) (holding that probation could be revoked when the funding for sex offender treatment required as a condition of probation was not available).

Johnson argues that community resistance to placement of sex offenders, caused by a recent high profile case, made it impossible for him to comply with the conditions of ISR.  But there is no case law holding that such difficulties limit the DOC’s discretion to revoke supervised release when the conditions of that release have not been met.  The DOC made efforts to facilitate Johnson’s ISR, providing him opportunities to find a suitable job and residence and assistance in his search.  Johnson cites no authority requiring them to do more.

            Johnson contends the DOC should have placed him in a state-funded halfway house outside Polk County.  But we find no authority requiring the DOC to assign, or such halfway houses to accept, an inmate like Johnson on ISR.  See Minn. Stat. § 244.05, subd. 6 (2004) (authorizing DOC to impose treatment requirements as part of ISR), Minn. Stat.§ 256G.08 (2004) (defining reimbursement responsibility for various admissions to institutions, including halfway houses); Minn. R. 2940.2400 (2003) (providing that if no community program is available at time of supervised release, the matter shall be referred for approval of an alternative program or plan)

            We conclude that the district court’s findings in denying Johnson’s petition for a writ of habeas corpus are reasonably supported by the record, and the order must be affirmed.