This opinion will be unpublished and

may not be cited except as provided by

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







Arvie Ray Burch, petitioner,


Commissioner of Corrections,


Filed June 27, 2006


Wright, Judge


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, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)



            Considered and decided by Chief Judge Toussaint, Presiding Judge; Wright, Judge; and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N




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), [1] 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. 

In 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.  Id. at *2-4.  In August 2003, Burch filed a second petition for postconviction relief, again raising issues unrelated to the instant case.  Burch v. State, No. A03-1750, 2004 WL 1557822, at *1 (Minn. App. July 13, 2004), review denied (Minn. Sept. 29, 2004).  We also affirmed the denial of Burch’s second petition for postconviction relief.  Id. at *1-3. 

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.



A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.”  Minn. Stat. § 589.01 (2004).  A writ of habeas corpus is not available to “persons committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction.”  Id.  “The burden is on the petitioner to show the illegality of his detention.” Case v. Pung, 413 N.W.2d 261, 262 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).   On review, we give “great weight to the trial court’s findings in considering a petition for a writ of habeas corpus and will uphold the findings if they are reasonably supported by the evidence.”  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998).


Burch 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 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973)). 

The 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 U.S. 24, 35-36, 122 S. Ct. 2017, 2026 (2002) (quoting United States v. Washington, 431 U.S. 181, 188, 97 S. Ct. 1814, 1819 (1977)).  Thus, extended incarceration is an unconstitutional sanction if it is imposed because a prisoner refuses to make self-incriminating statements.  Id. at 38, 122 S. Ct. at 2027. 

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. 


Burch 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 (Minn. App. 2004), review denied (Minn. Oct. 19, 2004).  “The scope of inquiry in habeas corpus proceedings is limited to constitutional issues, jurisdictional challenges, claims that confinement constitutes cruel and unusual punishment, and claims that confinement violates applicable statutes.”  Id. at 690.  As such, a violation of the right to due process can be challenged under a petition for a writ of habeas corpus.  See, e.g., Townsend v. State, 646 N.W.2d 218, 222 (Minn. 2002) (recognizing that due-process claim is a valid claim for habeas corpus relief).   

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 (Minn. 1997).  “An essential element of an equal protection claim is that the persons claiming disparate treatment must be similarly situated to those to whom they compare themselves.”  St. Cloud Police Relief Ass’n v. City of St. Cloud, 555 N.W.2d 318, 320 (Minn. App. 1996), review denied (Minn. Jan. 7, 1997). 

            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 Minn. 252, 254, 146 N.W.2d 181, 183 (1966), we cannot conclude from this newly presented evidence that the Department of Corrections violated Burch’s Fourteenth Amendment right to equal protection by terminating Burch from TRIAD.    

            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.

[1] 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 (Minn. App. Apr. 22, 2003), review denied (Minn. July 15, 2003) (Burch I).