This opinion will be unpublished and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
Arvie Ray Burch, petitioner,
Commissioner of Corrections,
Carlton County District Court
File No. 09-CV-05-882
Arvie Burch, Minnesota Correctional Facility-Stillwater, 970 Pickett Street North, Bayport, MN 55003 (pro se appellant)
Mike Hatch, Attorney General,
Richard L. Varco, Jr., Assistant Attorney General, 900 Bremer Tower,
Considered and decided by Chief Judge Toussaint, Presiding Judge; Wright, Judge; and Forsberg, Judge.*
Appellant challenges the district court’s denial of his petition for a writ of habeas corpus to eliminate a disciplinary sanction that extended his incarceration for failure to complete a chemical-dependency program. Appellant argues that he is entitled to habeas relief because the sanction was imposed in violation of the Fifth Amendment privilege against self-incrimination. Appellant also argues that his Fourteenth Amendment right to equal protection of the law was violated. We affirm.
In 1996, appellant Arvie Burch was convicted of one count of first-degree burglary, Minn. Stat. § 609.582, subd. 1(c) (Supp. 1995),  and sentenced to 240 months’ imprisonment under the career-offender statute, Minn. Stat. § 609.152, subd. 3 (1996). Burch did not file a direct appeal of this conviction.
While incarcerated, Burch received an alcohol-and-other-drug assessment (AODA) by a program review team (PRT). As a result, Burch was directed to participate in and successfully complete a chemical-dependency treatment program. Burch was advised that failure to complete the program would result in disciplinary sanctions, including extended incarceration.
Burch entered the TRIAD program on July 7, 2000. On August 15, Burch was placed on a two-week probation for violating institutional rules. Burch signed a probation contract advising him that he must follow all TRIAD program rules and that additional violations would result in termination from the TRIAD program. On August 29, Burch was placed on a one-month probation. Burch signed a second probation contract, indicating that he would follow all rules and regulations of the TRIAD program. On October 2, Burch admitted that he had failed to follow the rules, policies, and regulations of TRIAD. One week later, after receiving an unsatisfactory PRT assessment, Burch was suspended from the TRIAD program. Burch subsequently was terminated from TRIAD on October 17.
Because of Burch’s termination from the TRIAD program, he was alleged to have violated Offender Disciplinary Regulation (ODR) 51, which provides that an inmate may be penalized for involuntary termination from a treatment program by receiving an extension of incarceration by 30 to 360 days. On December 8, 2000, a hearing officer found Burch guilty of violating ODR 51 and imposed a 60-day extension of incarceration, of which 15 days would be suspended if Burch completed chemical-dependency treatment. Burch appealed this disposition to the warden, who found that the disposition was appropriate and denied the appeal.
2002, Burch filed his first postconviction petition on issues unrelated to this
habeas corpus petition. Burch I, 2003 WL 1907985, at *2. We
affirmed the district court’s denial of postconviction relief.
Burch next petitioned for a writ of habeas corpus, challenging the 45-day disciplinary sanction for termination from the TRIAD program. Burch argued that requirements for his participation in TRIAD violated the Fifth Amendment privilege against self-incrimination. Burch also alleged a violation of the right to equal protection of the law under the Fourteenth Amendment and sought a new AODA.
The district court denied the writ, concluding that (1) the requirements for participation in TRIAD did not violate the privilege against self-incrimination; (2) Burch’s equal-protection claim failed because he did not identify other similarly situated inmates who received more favorable treatment; (3) Burch failed to allege purposeful discrimination based on his membership in a suspect class; and (4) the extension of Burch’s incarceration was permissibly based on his failure to complete mandatory chemical-dependency treatment. This appeal followed.
writ of habeas corpus is a statutory civil remedy available “to obtain relief
from [unlawful] imprisonment or restraint.”
first argues that the writ was erroneously denied because the department of corrections
violated his privilege against self-incrimination when it extended his period
of incarceration for failing to complete the TRIAD program. The Fifth
Amendment to the United States Constitution provides that no person “shall be
compelled in any criminal case to be a witness against himself.” The privilege not only protects a criminal
defendant from self-incrimination in a criminal trial, but also protects a criminal
defendant from being compelled “to answer official questions put to him in any
other proceeding, civil or criminal, formal or informal, where the answers
might incriminate him in future criminal proceedings.” Minnesota v. Murphy, 465
United States Supreme Court “has insisted that the ‘constitutional guarantee is
only that the witness not be compelled
to give self-incriminating testimony.’” McKune
v. Lile, 536
Burch maintains that TRIAD requires an offender to incriminate himself. But this assertion is contrary to the record. TRIAD’s director, Jim Kaul, testified by affidavit that the program “expects inmates to discuss the offenses for which they have been convicted, but does not ask inmates to admit to the criminal offenses that are currently under appeal.” TRIAD also “does not ask or compel inmates to discuss possible crimes that have not been adjudicated by the courts.” An appeal of Burch’s burglary conviction was not pending when he was terminated from TRIAD in October 2000. The time for filing a direct appeal had expired in 1996, and he did not file his first postconviction petition until 2002. Thus, the record supports the district court’s finding that Burch was not required to incriminate himself in order to remain in the TRIAD program. See Johnson v. Fabian, 711 N.W.2d 540, 543 (Minn. App. 2006) (concluding that participation in TRIAD did not compel appellant-inmate to incriminate himself).
Because TRIAD did not compel Burch to incriminate himself, Burch has not alleged a constitutional violation giving rise to habeas corpus relief. Accordingly, the district court did not err by denying Burch’s petition for a writ of habeas corpus on this ground.
next contends that he is entitled to a new AODA because the first assessment was
invalid and its use as a basis for the 45-day extended incarceration violated the
right to due process. See U.S. Const. amend XIV, § 1 (“No
State shall . . . deprive any person of life, liberty, or property, without due
process of law.”). A district court is
limited to granting relief on issues within the permissible scope of a habeas
corpus proceeding. Loyd v. Fabian, 682 N.W.2d 688, 691 (
But Burch’s argument before the district court sought a new AODA without alleging a constitutional violation entitling him to this relief. On appeal, Burch has added the constitutional claim of a due-process violation. Because the district court did not have a constitutional issue on which to base habeas corpus relief in the form of a new AODA, the district court denied Burch’s request. Based on the allegations before it, the district court’s denial of Burch’s petition was proper.
Finally, Burch contends that his
termination from TRIAD violated the Fourteenth Amendment right to equal
protection of the law. Burch maintains
that he was treated differently from other prisoners who obtained reinstatement
into TRIAD. The Equal Protection Clause
of the Fourteenth Amendment provides, in relevant part, “No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. “The guarantee of equal protection of the laws
requires that the state treat all similarly situated persons alike.” State
v. Behl, 564 N.W.2d 560, 568 (
Burch maintains that the Department
of Corrections allowed other inmates to return to and graduate from TRIAD, but
the Department did not grant him the same opportunity to do so. But Burch did not identify these inmates or
otherwise address how they were similarly situated to him. The district court correctly concluded that
Burch failed to establish an equal-protection violation. For the first time on appeal, Burch has identified
three inmates who he claims to be similarly situated. But because this evidence was not before the
district court, and because we do not render factual findings on appeal, Kucera v. Kucera, 275
Notwithstanding Burch’s assertion of unequal treatment, he did not provide the district court with evidence to support his claim. Accordingly, the district court correctly concluded that Burch failed to establish that he is entitled to habeas corpus relief.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The underlying facts of the offense leading to
Burch’s conviction are not at issue in this appeal. Those facts are set forth in Burch v. State, No. C3-02-1412, 2003 WL
1907985, at *1 (