This opinion will be unpublished and

may not be cited except as provided by

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







Wayne C. Nicolaison, petitioner,





Kevin Goodno, Commissioner of Human Services,




Filed January 17, 2006


Huspeni, Judge*



Carlton County District Court

File No. CV-04-1693


David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellant)


Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN 55487 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the denial of his petition for a writ of habeas corpus, arguing that he was (1) denied his constitutional right to a jury trial; (2) denied due process because the committing court failed to consider and address the Pearson factors; (3) denied due process because the committing court’s finding that he lacks the capacity to control his sexual impulses is inconsistent with the convicting court’s finding that he acted with criminal intent; and (4) denied effective assistance of counsel.  Because appellant’s claims are without merit, we affirm.



            Appellant has a history of violent sexual behavior.  In 1980, he entered a woman’s house and sexually assaulted her at knifepoint.  He pleaded guilty to criminal charges and was sentenced to 50 months in prison.  In January 1984, approximately five months after he was paroled for the 1980 offense, appellant assaulted another woman; she managed to escape.  He pleaded guilty to disorderly conduct, his parole was revoked, and he was returned to prison.  He was paroled again in late 1984, and ten weeks later he assaulted another woman.  He pleaded guilty to first-degree criminal sexual conduct in that incident.  While incarcerated, appellant was disciplined many times for harassing female staff, and he refused to participate in sex offender treatment.

            In January 1992, the district court committed appellant as a psychopathic personality.  Five months later, the commitment was continued for an indeterminate period.  On appeal to this court, the commitment was affirmed.  In re Nicolaison, No. C1-92-613 (Minn. App. July 14, 1992), review denied (Minn. Sept. 8, 1992).

            In late 1992, appellant filed a petition for writ of habeas corpus in federal district court.  That petition was denied, and in September 1995, the Eighth Circuit affirmed the denial.  Nicolaison v. Erickson, 65 F.3d 109 (8th Cir. 1995).

            In 1995, appellant’s petition seeking discharge from commitment was denied by a three-judge judicial appeal panel.  This court affirmed on appeal.  Nicolaison v. Gomez, No. C3‑95‑2586 (Minn. App. Apr. 30, 1996), review denied (Minn. July 10, 1996).

            In 1997, appellant’s petition for writ of habeas corpus in state district court was denied.  In denying the petition, the court noted that the Eighth Circuit had already addressed and resolved appellant’s claims.  On appeal, this court affirmed.  Nicholaison v. Doth, No. C2-97-2146 (Minn. App. Apr. 28, 1998), review denied (Minn. June 23, 1998).

            Between 1998 and 2001, appellant filed two discharge petitions and one federal district court habeas corpus petition.  All were denied.  In October 2004, appellant filed another petition for writ of habeas corpus in state district court.  That petition was denied on February 7, 2005, and this appeal followed.



            This court will review a decision on a petition for writ of habeas corpus de novo when the pertinent facts are undisputed.  Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).  In addition, issues of constitutional interpretation are questions of law, which we review de novo.  Star Tribune Co. v. Univ. of Minn. Bd. of Regents, 683 N.W.2d 274, 283 (Minn. 2004). 



            The Minnesota Constitution provides that “[t]he right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy.”  Minn. Const. art. I, § 4.  The Minnesota Constitution preserved the right to a jury trial as it existed in the territory of Minnesota at the time the constitution was adopted.  Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 148-49 (Minn. 2001).  A party, however, is not entitled to a jury trial “if that same type of action did not entitle a party to a jury trial at the time the Minnesota Constitution was adopted.”  Id. at 149.

            In this case, we are once more invited to address the issue of whether a party is entitled to a jury trial in a civil commitment proceeding under the Minnesota Constitution and the United States Constitution.  It is clear, however, as the Minnesota Supreme Court concluded in State ex rel. Pearson v. Probate Court, 205 Minn. 545, 557, 287 N.W. 297, 303 (1939), aff’d, 309 U.S. 270, 60 S. Ct. 523 (1940), that the constitutional right to a jury trial does not apply to civil commitment proceedings.  See also Joelson, 594 N.W.2d at 910 (following Pearson).

            Appellant argues that the Minnesota Supreme Court incorrectly decided Pearson.  But this court is “not in position to overturn established supreme court precedent.”  State v. Ward, 580 N.W.2d 67, 74 (Minn. App. 1998).  We, therefore, conclude that appellant does not have a state constitutional right to a jury trial in his civil commitment action.  Moreover, “[t]here is no clearly established Supreme Court law which holds that due process requires a jury trial in civil commitment proceedings or that incorporates the Seventh Amendment right to a jury for such cases.”  Poole v. Goodno, 335 F.3d 705, 710-11 (8th Cir. 2003).  Thus, we also conclude that the United States Constitution does not guarantee appellant a right to a jury trial in civil commitment proceedings.



            Committed persons may challenge the legality of their commitment through habeas corpus, but the district court will only consider constitutional issues and jurisdictional challenges.  Joelson, 594 N.W.2d at 908.  Habeas corpus petitions may not be used as a substitute for an appeal or a cover for a collateral attack on the commitment.  See State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959) (holding habeas corpus could not be used to challenge adequacy of criminal complaint).  Further, a court will not reconsider issues addressed in an earlier appeal or habeas corpus action.  See, e.g., Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978); State ex rel. Crippen v. Tahash, 274 Minn. 565, 565-66, 143 N.W.2d 383, 384 (1966); Joelson, 594 N.W.2d at 908-10. 

            Here, appellant argues that his commitment should be reversed because the original committing court did not properly apply the psychopathic personality statute as the Minnesota Supreme Court interpreted it in Pearson.  In Pearson, the court narrowed application of the psychopathic personality statute to

those persons who by an habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who as a result are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.


205 Minn. at 555, 287 N.W. at 302. 

Appellant, however, has challenged the committing court’s application of Pearson in previous habeas corpus proceedings.  In 1994, his petition for writ of habeas corpus in federal district court was denied and on appeal to the Eighth Circuit, he argued, as he does here, that the committing court did not properly apply the Pearson construction of the psychopathic personality statutes.  The Eighth Circuit rejected appellant’s argument and concluded that a proper Pearson analysis was “at least implicit in the committing court’s decision.”  Nicolaison v. Erickson, 65 F.3d 109, 111 (8th Cir. 1995).

            In 1996, appellant petitioned for writ of habeas corpus in state district court, again arguing that the committing court failed to apply the Pearson factors.  The district court denied appellant’s petition and stated that “[a]lthough the trial court’s findings do not specifically lay-out the elements required under [Pearson], the record as a whole establishes that all three elements were present and that Petitioner met the definition of a psychopathic personality . . . as narrowed by Pearson.”  Nicholaison v. Doth, No. C2‑96‑1187, slip op. at 1 (Minn. Dist. Ct. Sept. 26, 1997).  This court found the Eighth Circuit’s 1995 opinion informative and affirmed the district court.  Nicholaison v. Doth, No. C2-97-2146, 1998 WL 204495, at *2 (Minn. App. Apr. 28, 1998), review denied (Minn. June 23, 1998).

            Because appellant is relitigating an issue that courts have decided against him in previous habeas corpus proceedings, we decline to address whether the committing court properly considered Pearson.



            In 1980 and 1984, appellant pleaded guilty to criminal sexual conduct, a general intent crime in MinnesotaState v. Hart, 477 N.W.2d 732, 736 (Minn. App. 1991), review denied (Minn. Jan. 16, 1992).  The Minnesota Criminal Code defines “intentionally” as meaning that the actor “has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result.”  Minn. Stat. § 609.02, subd. 9(3) (2004).  Then in 1992, the district court committed appellant as a psychopathic personality, which requires that the court find that appellant had an utter lack of power to control his sexual impulses. 

            Appellant argues that the district court’s finding that he lacked the power to control his sexual impulses is inconsistent with his convictions of general intent crimes.  Appellant bases his challenge on the dissent in In re Linehan, 518 N.W.2d 609 (Minn. 1994), which argued that a system that first criminally convicts a person and then civilly commits him as a psychopathic personality is “both logically and legally inconsistent, and fundamentally unfair” because a person cannot “simultaneously intend his acts and manifest an inability to control his behavior.”  518 N.W.2d at 615. 

The supreme court, however, has never adopted the views expressed in the Linehan dissent.  Instead, that court stated in a later Linehan case that “[u]nder our case law, a person who is utterly unable to control impulses to sexually assault others does not, by that fact, have a defense to criminal charges, and yet that person may still be subject to civil commitment under the [Psychopathic Personality Act].”  In re Linehan, 557 N.W.2d 171, 183 (Minn. 1996), vacated & remanded on other grounds, 522 U.S. 1011, 118 S. Ct. 596 (1997), aff’d as modified, 594 N.W.2d 867 (Minn. 1999); see also Pearson, 205 Minn. at 556, 287 N.W. at 303 (“In this state, an uncontrollable and insane impulse to commit crime, in the mind of one who is conscious of the nature and quality of the act, is not allowed to relieve a person of criminal liability.”).  Because the Minnesota Supreme Court has stated that criminal convictions are not inconsistent with civil commitment, we conclude that appellant’s due-process rights were not violated.


            This court applies the same standard for reviewing the adequacy of counsel in civil commitment cases that it does in criminal cases.  In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987).  We review claims of ineffective assistance of counsel under a two-pronged test of (1) deficiency and (2) prejudice.  State v. Bergerson, 671 N.W.2d 197, 205 (Minn. App. 2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); State v. Rhodes, 657 N.W.2d 823, 842 (Minn. 2003)). 

            First, appellant must show by a preponderance of the evidence that his attorney’s performance fell below an objective standard of reasonableness.  Id.  An attorney meets this standard of reasonableness “when he provides his client with the representation of an attorney exercising the customary skills and diligence that a reasonably competent attorney would perform under the circumstances.”  Id. (quotation omitted).

            Next, appellant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  Id. (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068).  In making this determination, a court must consider the totality of the evidence that it receives.  Id.

            Here, appellant contends that his previous counsel denied him effective assistance when the attorney failed to (1) assert appellant’s right to a jury trial under the Minnesota Constitution and territorial laws; (2) assert certain Pearson factors; and (3) assert that convictions of criminal sexual conduct are inconsistent with a finding that appellant had an utter lack of power to control sexual impulses.  Appellant, however, has failed to establish that his attorney’s performance prejudiced his defense.  Because appellant’s three arguments are without merit, the result of the proceedings would not have been different if his previous counsel had raised those issues.  Thus, we conclude that appellant was not denied effective assistance of counsel.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.