This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
ex. rel. J.S.B., petitioner,
Sheryl Hvass, Commissioner, et al.,
Filed May 2, 2006
Washington County District Court
File No. C2-05-4
Mike Hatch, Attorney General, Tricia
L. Matzek, Assistant Attorney General,
Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the denial of his petition for a writ of habeas corpus, appellant argues that (1) the duration of his life prison sentence was meant to be less than life; (2) he has a due-process liberty interest in a supervised-release date; (3) respondents exceeded their authority by conducting a review of appellant’s life sentence and denying appellant supervised release based on facts not found by a jury; (4) respondents exceeded their authority by ordering appellant to complete rehabilitative programs under the threat of increased incarceration time; (5) respondents wrongly required appellant to give a blood sample for DNA testing; and (6) respondents wrongly designated appellant a predatory offender. Because appellant’s arguments lack merit, we affirm.
Appellant J.S.B. pleaded guilty to first-degree murder, in violation of Minn. Stat. § 609.185 (1) (1986), and attempted first-degree murder, in violation of Minn. Stat. § 609.17 (1986), for acts committed in December 1987. J.S.B. was sentenced to life and to 130 months in prison, respectively, for those offenses, and the terms are being served concurrently. In April 2005, J.S.B. filed a pro se petition for a writ of habeas corpus, which the district court denied. This appeal follows.
appeal from the denial of a petition for a writ of habeas corpus, the district
court’s findings are entitled to great weight and will be sustained if they are
reasonably supported by the evidence. State v. Schwartz, 615 N.W.2d 85, 90
(Minn. App. 2000), aff’d, 628 N.W.2d
Life Prison Term
first argues that “the legislature intended for offenders convicted on or after
May 1, 1980, only a minimum sentence that counteracts the seemingly
indeterminate life sentence provision of Minn. Stat. 609.185 (1987)” and that
“the duration of confinement on a life sentence . . . should be only twenty
two (22) years.” A petition for a writ
of habeas corpus may be used to challenge a sentence not authorized by
v. Swenson, 240
J.S.B. was convicted of first-degree murder, in violation of Minn. Stat. § 609.185 (1) (1986), which provides for a sentence of “imprisonment for life.” Although J.S.B. was eligible for supervised release at the discretion of the commissioner of corrections after serving a minimum term of 17 years in prison, this does not alter his sentence to less than life in prison. See Minn. Stat. § 244.05, subds. 4, 5 (1986); McMaster, 495 N.W.2d at 615 (stating that post-1980 life sentences are indeterminate and release is discretionary). J.S.B. provides no authority that supports the conclusion that his life sentence is actually a sentence of less than life or that his sentence is limited to 22 years. Therefore, we conclude that J.S.B.’s sentence for violating Minn. Stat. § 609.185 (1) (1986) is a life term in prison with the possibility of supervised release after 17 years.
J.S.B. appears to argue that Minn. Stat. § 244.05 (1986) gives him a “due
process liberty interest in supervised release” after he has served 17 years of
his life sentence. J.S.B. claims that he
was deprived of this liberty interest when, after a life-sentence review in
November 2001, his incarceration was extended to December 2008, four years
beyond “his seventeen (17) year minimum” sentence. A petition for a writ of habeas corpus may be
used to review allegations that parole authorities failed to follow applicable
statutory and constitutional principles in denying parole. Kelsey
v. State, 283 N.W.2d 892, 894-95 (
person may not be deprived of a liberty interest without due process of
law. U.S. Const. amend. XIV,
§ 1. This constitutional protection
extends to inmates. See Carrillo v. Fabian,
701 N.W.2d 763, 768 (
argues that respondents exceeded their authority by assembling a “parole board
style panel” and by denying him supervised release based on facts not found by
a jury, in violation of Apprendi v.
also argues that respondents violated Minn. Stat. §§ 244.02 and .03 by
ordering him to “complete mutual agreement and voluntary programs or face longer
incarceration.” Section 244.02 was
repealed in 1999 and is, therefore, not applicable here. See
Requiring DNA Analysis
J.S.B. appears to argue that Minn. Stat. § 609.117 (2000), which requires certain
offenders to provide a biological specimen for DNA analysis, is an ex post
facto law as applied to him. J.S.B.
claims that in August 2000, he was coerced “into signing a consent form to
withdraw DNA pursuant to Minn. Stat. 609.3461,” renumbered in 1999 as Minn.
Stat. § 609.117. See 1999
609.117 provides that the commissioner of corrections or a local corrective
authority shall order an inmate “to provide a biological specimen for the
purpose of DNA analysis” before completion of his prison term if the inmate has
not already provided such a specimen and the inmate was convicted of murder
under section 609.185.
J.S.B. also claims that in August 2001 he was improperly designated “a predatory offender required to register” under Minn. Stat. § 243.166 based on his 1983 juvenile adjudication of second-degree criminal sexual conduct. J.S.B. appears to argue that section 243.166 does not apply to him and that application of the statute based on his 1983 adjudication violates the constitutional prohibition against ex post facto laws.
is unclear what relief J.S.B. requests. And there is no evidence in the record that J.S.B.
is currently designated as a “predatory offender.” But even if we were to consider the merits of
(1) the person is convicted of a crime against the person; and
(2) the person was previously convicted of or adjudicated delinquent for an offense listed in section 243.166, subdivision 1, paragraph (a), but was not required to register for the offense because the registration requirements of that section did not apply to the person at the time the offense was committed.
The parties made several motions, which were deferred until our consideration of J.S.B.’s appeal on its merits. We now deny all of those motions. J.S.B. moved to strike respondents’ brief and affidavit with exhibits, arguing that they are not part of the record. In response, respondents moved to supplement the record with a DNA-specimen-collection consent form signed by J.S.B. and J.S.B.’s February 2005 status-history report. Because the rules of appellate procedure allow respondents to file a brief in response to J.S.B.’s brief, we deny J.S.B.’s motion to strike respondents’ brief. See Minn. R. Civ. App. P. 128.02, subd. 2, 131.01, subd. 2. Because it was not necessary to consider respondents’ exhibits to decide J.S.B.’s claims, we deny their motion to supplement the record.
Another of J.S.B.’s motions consists primarily of additional arguments on the merits of his appeal, which this court has construed as a motion to accept additional briefing. See Minn. R. Civ. App. P. 128.02, subds. 1, 3-4 (providing that an appellant may file a brief and a reply brief, but no additional briefs may be filed without leave of the appellate court). In his motion, J.S.B. also raises a new claim that “his rights were violated in prison discipline proceedings.” Issues not argued in an appellant’s brief are waived and will not be considered if raised in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990); Minn. R. Civ. App. P. 128.02, subd. 3 (providing that a “reply brief must be confined to new matter raised in the brief of the respondent”). Respondents have had no opportunity to respond to J.S.B.’s additional arguments or to brief the new claim that he raises. We therefore deny J.S.B.’s motion for additional briefing, and we decline to review his new arguments and claim.
Further, J.S.B. requested the recusal of two members of this panel, but he provided no justification for his request. His request is denied. J.S.B. also moved this court to certify to the supreme court the question of whether inmates serving life prison terms are entitled to supervised release after serving 17 years of their sentences. We have addressed this question in this decision, and J.S.B. may petition the supreme court for review of our decision under Rule 117 of the Minnesota Rules of Civil Appellate Procedure. His motion is denied.
Affirmed; motions denied.