This opinion will be unpublished and

may not be cited except as provided by

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








In the Matter of

Clark Albert Bailey, a/k/a Clark Kruger.



Filed January 3, 2006


Toussaint, Chief Judge

Concurring specially, Randall, Judge


Hennepin County District Court

File No. 27-P3-77-368556



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; Randall, Judge; and Dietzen, 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 the motion of appellant Clark Albert Bailey, a/k/a Clark Kruger, for relief from a judgment under Minn. R. Civ. P. 60.02(f), which the district court treated as a petition for a writ of habeas corpus.  Bailey challenges his indeterminate commitment as a psychopathic personality on a number of grounds.  We affirm.


            On appeal, this court will review a decision on a petition for a writ of habeas corpus de novo where the pertinent facts are undisputed.  Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).

            A challenge to the legality of a commitment will generally be brought through a petition for a writ of habeas corpus.  Id.  Bailey filed a motion for relief from his indeterminate commitment pursuant to Minn. R. Civ. P. 60.02(f).  The district court properly treated this as a petition for a writ of habeas corpus.  See State ex rel. Jackson v. Willson, 230 Minn. 156, 159, 40 N.W.2d 910, 911 (1950) (noting that petition seeking vacation of commitment order was essentially invoking habeas corpus process).  Consequently, we review it under the standard for habeas challenges.

            Among the limited issues that may be raised for review in a habeas proceeding are lack of personal or subject-matter jurisdiction, the unconstitutionality of the law under which the person was confined, and violation of fundamental constitutional rights.  State ex rel. Anderson v. U.S. Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964).  The court cannot consider “errors or irregularities in the proceedings, judgment, or process of any competent court having jurisdiction.”  Id. at 217 n.5, 128 N.W.2d at 714 n.5 (citation omitted).  Habeas is not a substitute for an appeal, nor may it be used to attack a commitment collaterally.  State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).

            The district court determined that most of Bailey’s claims had been raised in two previous habeas challenges and were barred by the doctrine of collateral estoppel.  “Collateral estoppel precludes the relitigation of issues which are both identical to those issues already litigated by the parties in a prior action and necessary and essential to the resulting judgment.”  Ellis v. Minneapolis Comm’n on Civil Rights, 319 N.W.2d 702, 704 (Minn. 1982).  Collateral estoppel is appropriate where

                        (1) the issue was identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue.


Id. (quotation omitted).

            Bailey first argues that his claims are not barred by collateral estoppel because, in the previous district court proceedings, he was not given an evidentiary hearing to address the issues raised.  First, Bailey sought an evidentiary hearing in his 1999 claim of ineffective assistance of counsel.  The district court and this court rejected the argument.  In re Commitment of Bailey, No. C5-00-872, 2000 WL 1664977, at *3 (Minn. App. Nov. 7, 2000) (holding ineffective-assistance-of-counsel claim not properly raised in habeas action), review denied (Minn. Jan. 16, 2001).  Second, when Bailey did not request an evidentiary hearing on the other issues and when the district court held hearings on the claims, he received full and fair opportunities to be heard in his prior proceedings.

            Bailey next contends that in his habeas challenge that the district court decided in 1995 and in this court’s 1996 decision on review, the incorrect standard of proof of clear-and-convincing evidence, rather than proof beyond a reasonable doubt, was used.  See Kruger v. Comm’r of Human Servs., No. C4-95-1866, 1996 WL 5786 (Minn. App. Jan. 9, 1996), review denied (Minn. Mar. 19, 1996).  He argues that, therefore, the issue of the proper standard of review was never properly considered, and that the issue must be considered.  The district court here ruled that this argument had been raised and denied, noting that a habeas petitioner is not entitled to elaborate on arguments already made by raising issues in a different way.

            Bailey also argued in that habeas proceeding that the factors for commitment were not met and that the district court failed to apply In re Linehan, 518 N.W.2d 609 (Minn. 1994).  Kruger, 1996 WL 5786, at *2.  We agree with the district court in this case that the argument there constituted an attempt to raise essentially the same issue Bailey seeks to raise now in his burden-of-proof argument, namely, a challenge to the sufficiency of the evidence to support the commitment.

            Further, to the extent it was not raised previously, we disagree with Bailey on the merits of his burden-of-proof argument.  Bailey’s commitment was governed by the psychopathic personality statute in effect in 1977, Minn. Stat. §§ 526.09-.11 (1976), which incorporated the commitment proceedings of the then-applicable civil-commitment statutes, Minn. Stat. §§ 253A.01-.21 (1976).  Minn. Stat. § 526.10.  Neither chapter 253A nor sections 526.09 to 526.11 referred to a burden of proof.  The Supreme Court has since established that the standard of clear-and-convincing evidence is constitutionally adequate.  Addington v. Texas, 441 U.S. 418, 433, 99 S. Ct. 1804, 1813 (1979); see Minn. Stat. § 253B.18, subd. 1(a) (2004) (providing that clear-and-convincing standard applies).  In the case relied on by Bailey, the reference to the beyond-a-reasonable-doubt standard was dicta, which is not controlling.  Lausche v. Comm’r of Pub. Welfare, 302 Minn. 65, 69, 225 N.W.2d 366, 369 (1974).

Next, Bailey contends that his commitment was void for lack of subject-matter jurisdiction because the commitment was not commenced pursuant to the statutory requirements.  This precise issue was explicitly raised in Bailey’s 2000 appeal.  In re Bailey, 2000 WL 1664977, at *2.  Bailey is barred from raising this issue again under the collateral-estoppel doctrine.

            Finally, Bailey argues that his due-process rights were violated because the civil-commitment court found him to have an utter lack of power to control his sexual impulses, conflicting with the criminal court finding that he was guilty of intentional conduct.  The district court explicitly rejected this argument in 1995, and Bailey did not raise this issue to this court in his appeal of the decision at that time.  See Kruger, 1996 WL 5786, at *2-3.  The fact that Bailey did not raise this issue in that appeal does not relieve him from the preclusive effect of the decision.  See Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978) (holding that where petitioner raised issue in previous habeas case but failed to file timely appeal, he cannot cure procedural defect by instituting second habeas proceeding).



RANDALL, Judge (concurring specially).

            I concur in the result.