This opinion will be unpublished and

may not be cited except as provided by

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






Christopher Loyd Ivey, petitioner,





Dean Mooney,



Filed April 4, 2006


Toussaint, Chief Judge


Carlton County District Court

File No. 09-CV-05-1099


Christopher Ivey, Shantz 1-East, 100 Freeman Drive, St. Peter, MN  56082 (pro se appellant)


Mike Hatch, Attorney General, Angela M. Helseth, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN  55101-2134 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Christopher Lloyd Ivey appeals from an order denying his petition for a writ of habeas corpus, in which he challenges his indeterminate commitment as a sexual psychopathic personality (SPP) and as a sexually dangerous person (SDP).  We affirm.


            In 1993, appellant pleaded guilty to first-degree burglary and first-degree criminal-sexual conduct; he was sentenced to prison.  During the investigation of these crimes, appellant confessed to attempted rape and murder in Germany in 1989.  He was later convicted and served time in Minnesota and Germany on his convictions.

            In November 2003, appellant was returned to Minnesota for supervised release.  A petition to civilly commit him as SPP and SDP was filed on November 24, 2003.  After several continuances, the hearing was held March 23-25, 2004.  The district court committed appellant to the Minnesota Sexual Offense Program as SDP and SPP.  This court affirmed; the supreme court denied review, and the U.S. Supreme Court denied certiorari.  In re Ivey, 687 N.W.2d 666 (Minn. App. 2004), review denied (Minn. Dec. 22, 2004), cert. denied, 126 S. Ct. 191 (2005).  After the review hearing, the district court made appellant’s commitment indeterminate, and this court affirmed.  In re Ivey, No. A04-1909, 2005 WL 832329 (Minn. App. Apr. 12, 2005).

            Appellant then brought this pro se petition for a writ of habeas corpus.  He claimed for the first time that his confinement was illegal because the initial hearing was not held within 44 days after the petition was filed as required by statute.  After a hearing, the district court denied the petition.  Appellant moved for amended findings; the district court also denied this motion.  This appeal followed.


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

            “Committed persons may challenge the legality of their commitment through habeas corpus.”  Id.  Nothing in the commitment statute “shall be construed to abridge the right of any person to the writ of habeas corpus.”  Minn. Stat. § 253B.23, subd. 5 (2004).  The district court will consider only constitutional or jurisdictional challenges.  Joelson, 594 N.W.2d at 908.  A petitioner may not use habeas as a substitute for an appeal or as a collateral attack on a commitment.  State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).  “[M]atters which are subject to review on appeal [are] not properly before us in habeas corpus proceedings.”  State ex rel. Munnell v. Rigg, 260 Minn. 509, 511, 110 N.W.2d 294, 296 (1961).

             “The hearing on the commitment petition shall be held within 14 days from the date of the filing of the petition.”  Minn. Stat. § 253B.08, subd. 1 (2004).   “For good cause shown, the court may extend the time of the hearing up to an additional 30 days.”  Id.  If the hearing is not held within the allowed time, the petition shall be dismissed.  Id.  But this requirement may be waived.  In re May, 477 N.W.2d 913, 915 (Minn. App. 1991).

            Appellant argues that he did not waive the statutory requirement that the hearing on the petition must be held within 44 days or else be dismissed.  He did not, however, raise this argument at either of his commitment hearings, even though it could have been raised there.  See In re Buckhalton, 503 N.W.2d 148, 151 (Minn. App. 1993) (contending petition should have been dismissed because hearing was not timely), aff’d, 518 N.W.2d 531 (Minn. 1994).

            Appellant contends that this is an issue of subject-matter jurisdiction, which can be raised at any time.  “Subject-matter jurisdiction is defined as not only authority to hear and determine a particular class of actions, but authority to hear and determine the particular questions the court assumes to decide.”  Irwin v. Goodno, 686 N.W.2d 878, 880 (Minn. App. 2004) (quotation omitted).  “[S]tatutory requirements limiting a court’s jurisdiction are threshold requirements that must be complied with before a court can exercise jurisdiction.”  Id. (quotation omitted).  The issue of subject-matter jurisdiction may be raised any time and may not be conferred with the consent of the parties.  Id. “[I]t is blackletter law that subject matter jurisdiction may not be waived.”  Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn. 1998); see In re Ivey, 687 N.W.2d 666, 670 (Minn. App. 2004) (addressing Ivey’s appeal from the initial commitment), review denied (Minn. Dec. 22, 2004), cert. denied, 126 S. Ct. 191 (2005).

            The district court has subject-matter jurisdiction over SPP and SDP commitments. Ivey, 687 N.W.2d at 669.  Whether the hearing was timely under the statute does not raise an issue as to the court’s authority to decide a particular class of cases or a particular question.  Consequently, we conclude that the issue of the timeliness of the hearing does not raise subject-matter jurisdiction.  Further, unlike subject matter jurisdiction, this requirement may be waived.  May, 477 N.W.2d at 915. 

            Appellant also contends that fairness requires that his argument be considered because it is based on information that was not available to him earlier.  In the context of postconviction relief proceedings, the supreme court has recognized exceptions to the general rule that a criminal defendant is barred from later raising claims he failed to raise in the appeal.  Sessions v. State, 666 N.W.2d 718, 721 (Minn. 2003).  Under one of those exceptions, a claim may be considered if the interests of justice require relief and “if fairness requires and the petitioner did not deliberately and inexcusably fail to raise the issue on direct appeal.”  Id. (quotation omitted); see Fox v. State, 474 N.W.2d 821, 822, 825 (Minn. 1991) (allowing defendant to raise the issue that he had been incompetent at trial due to medication eight years after his conviction, based on fairness grounds).  But the exception will be applied only in “limited situations.”  Roby v. State, 531 N.W.2d 482, 484 (Minn. 1995).

            Appellant contends that fairness requires that he be allowed to argue in this habeas proceeding that he did not waive the 44-day requirement.  He asserts that his argument is based on relevant information that he was not aware of earlier, including a claim that the first court-appointed examiner’s family medical emergency, which was the basis in part for the postponement of the hearing, did not exist.  Even assuming that the exception in Sessions applies, these allegations do not meet the standard for requiring consideration of the issue on appeal based on fairness grounds.

            Next, appellant contends that the district court erred when it failed to grant him an evidentiary hearing.  An evidentiary hearing may be required when there are material facts in dispute.  State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967).  Appellant has not made the required showing.

            Appellant also contends that the district court erred in denying his motion for amended findings.  First, he asserts that the court erred in holding that it initially set the trial for January 7, 2004.  But the district court stated in its November 26, 2003, order that the matter would be heard on or before January 7 unless otherwise ordered by the court.  Finally, he challenges the district court’s failure to include in its findings the fact that it did not appoint counsel until a week after the petition was filed, but he makes no showing that this was error.