This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1262

Thomas Duvall, petitioner,

Appellant,

vs.

David Doth, Commissioner of Human Services,

Respondent.

Filed November 5, 1996

Affirmed

Crippen, Judge

Washington County District Court

File No. C3-95-5807

Stephen D. Radtke, 299 Valley Office Park, 10800 Lyndale Avenue South, Bloomington, MN 55420 (for Appellant)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Parker, Judge, and Foley,[*] Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant previously has been committed as a psychopathic personality, a judicial determination affirmed on appeal to this court, and currently he has failed to obtain trial court relief from the commitment in habeas corpus proceedings. Appealing the habeas corpus decision, appellant questions whether the committing court adequately addressed relevant factors and challenges the sufficiency of evidence on these factors. Because of appellant's prior appeal, where he raised the issue of whether commitment standards were met, we decline to address this contention again.

FACTS

Appellant has a record of forceful criminal assaults in 1975 and 1978, criminal assault and threats in 1981, three sexual assaults in 1982, and another felony sex crime in 1987. The 1982 assaults occurred a few days after appellant's release, and the 1987 sex crime occurred only twelve days after being released from prison. Appellant is presently serving a 240-month prison sentence.

Appellant was committed indeterminately as a psychopathic personality in 1991. He appealed, this court affirmed, and the supreme court denied review. In re Duvall, No. C5-91-1799 (Minn. App. Dec. 31, 1991), review denied (Minn. Mar. 26, 1992). After a hearing, the trial court dismissed his subsequent petition for a writ of habeas corpus.

D E C I S I O N

We conclude that no issues of fact are involved in this appeal and we are to decide an issue of law de novo. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).

A person who is restrained of liberty may petition for a writ of habeas corpus. Minn. Stat. § 589.01 (1994). Nothing in the commitment chapter can be construed to abridge this right. Minn. Stat. § 253B.23, subd. 5 (1994).

The scope of inquiry is limited where a committed person tests the legality of confinement by seeking habeas corpus relief. State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964). Possible grounds include that the court acted without jurisdiction over the subject matter or the person, that the governing law is unconstitutional and void, or that detention violates the patient's constitutional rights, particularly the guarantee of due process. Id. Habeas corpus may not be used as a substitute for a direct appeal or as a cover for a collateral attack. State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).

The statutory definition of a psychopathic personality in Minn. Stat. § 526.09 (1990) governs this commitment. As narrowed by case law, the definition includes only those whose course of misconduct evidences an "utter lack of power to control" sexual impulses, such that the actor is likely to injure the objects of his "uncontrolled and uncontrollable" desire. State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940).[1]

Appellant argues he should be released because neither the record nor the findings indicated that the Pearson factors were met. See In re Kunshier, 521 N.W.2d 880, 885 (Minn. App. 1994) (remanding where neither findings nor record reflected Pearson elements). Consistent with governing law, he does not maintain that the absence of findings alone is sufficient for habeas relief. In re Blodgett, 510 N.W.2d 910, 917 (Minn. 1994) (noting that where Pearson repeatedly was referred to during the hearings, and the trial court had Pearson in mind when making decision, supreme court construed trial court findings are construed in view of evidence relevant to Pearson, with no need to remand for further findings), cert. denied, 115 S. Ct. 146 (1994). Instead, appellant argues that his commitment is invalid because the commitment record did not contain clear and convincing evidence that established the Pearson factors. See In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (noting that although district court used Pearson language in findings, it was "in a conclusory fashion" and thus insufficient because the record did not support a finding of uncontrollability).

Appellant argued in his appeal from the commitment that experts had failed to state

by reasonable medical certainty that he would injure another woman if he were not under the influence of mood-altering chemicals. Because the record showed his plan to seek chemical dependency treatment in prison, he asserted that the state had failed to show that he had "an utter lack of power to control [his] sexual impulses." Responding to that argument while affirming the commitment, we cited an expert's testimony that chemical dependency treatment would unlikely affect appellant's propensity to attack women. In re Duvall, No. C5-91-1799, unpub. op. at 5 (Minn. App. Dec. 31, 1991).

This court is not at liberty to review again the adequacy of proof that appellant utterly lacks control and is likely to do future harm. Although appellant's current challenge may be broader in scope, he has raised the issue before and is barred by the doctrine of res judicata. Also, appellant may not raise constitutional issues again on a different set of arguments, and he is not entitled to elaborate on arguments by raising the issues in a different way.[2] See Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978) (per curiam) (holding petitioner who failed to appeal from first order discharging petition for writ of habeas corpus may not cure procedural defect by second petition for habeas).

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1 The statute has since been recodified and amended to include the Pearson elements. Minn. Stat. § 253B.02, subd. 18a (1994) (definition of a sexual psychopathic personality).

[ ]2 At oral argument, appellant cited Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822 (1964), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6, 112 S. Ct. 1715, 1717-18, (1992). Fay expanded the application of the federal writ of habeas corpus due to the limited appeal rights provided for by states. Bolstad v. State, 435 N.W.2d 547, 548-49 (Minn. App. 1989) (noting many states, including Minnesota, adopted postconviction relief statutes in response to Fay). Fay does not change our decision.