This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Wesley E. Brooks,



State of Minnesota, Commissioner of Corrections,

Gothriel J. Lafleur,


Filed May 12, 1998


Randall, Judge

Scott County District Court

File No. 97-10838

Samuel A. McCloud, Richard P. Ohlenberg, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

Hubert H. Humphrey III, Attorney General, W. Karl Hanson, Assistant Attorney General, 445 Minnesota Street, Suite 1100, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Randall, Presiding Judge, Willis, Judge, and Mulally, Judge.[*]



Appellant asserts the district court erred in dismissing his due process challenge. We affirm.


On March 14, 1994, appellant Wesley Brooks was convicted of felony escape from custody after he absconded from work release. Brooks was released from prison on July 15, 1996, to serve the remainder of his sentence on supervised release. On April 14, 1997, a warrant was issued for Brooks because he failed to maintain contact with his supervising agent. On April 17, 1997, the Department of Corrections' Office of Adult Release (OAR) discovered Brooks was serving a one-year sentence in the Scott County jail for driving after cancellation. The OAR's Deputy Executive Officer ordered that the warrant for Brooks be maintained as a detainer so he would be available for a supervised release revocation hearing after serving his jail sentence in Scott County. The Deputy Executive Officer also ordered the remaining time on Brooks's escape conviction sentence to run concurrently with his Scott County jail sentence. After his sentence for his escape conviction expired on November 26, 1997, Brooks was no longer subject to the Commissioner of Corrections' custody. Brooks was scheduled for release from the Scott County jail on December 16, 1997.

On May 15, 1997, Brooks's attorney sent a letter to the Department of Corrections (DOC) on Brooks's behalf requesting an immediate supervised release violation hearing or, in the alternative, admitting Brooks's violations and demanding execution of the remainder of his sentence. The execution of Brooks's sentence would put him back in the Scott County jail, where he hoped to gain eligibility for work release. The OAR's Deputy Executive Officer informed Brooks that he was "not available" for a hearing until he completed his Scott County jail sentence (serving a Scott County jail sentence under a detainer removes any eligibility for work release). On June 27, 1997, Brooks served a complaint on the DOC requesting an order removing the DOC's detainer and an order granting Brooks an immediate supervised release violation hearing. Brooks also brought a motion for a temporary injunction seeking an immediate violation hearing and removal of the detainer.

The district court denied Brooks's motion for a temporary injunction, finding that Brooks provided no evidence that he would suffer immediate harm, he was not likely to succeed on the merits of his case, and public policy would not be served by an injunction.

Respondent moved to dismiss Brooks's complaint pursuant to Minn. R. Civ. P. 12.02(e). The district court granted this motion and dismissed Brooks's complaint with prejudice. The district court concluded that Brooks did not have a constitutional right to a revocation hearing before he completed his county jail sentence and concluded Brooks did not have a constitutionally protected liberty interest in participating in rehabilitative programming. The district court also concluded that the OAR rules governing revocation hearings are constitutional and that the denial of participation in the work release program is not an atypical and significant hardship.

Brooks petitioned this court for a writ of mandamus and this court denied the petition in an October 7, 1997, order. Judgement was entered by the district court October 16, 1997, and Brooks appealed.



Generally, this court only reviews cases that present actual controversies. McIntosh v. Davis, 441 N.W.2d 115, 118 (Minn. 1989). An appeal will usually be dismissed if an event occurs while the appeal is pending that makes a decision by this court unnecessary. Id. This court may decide the issue, however, if the "case presents a question which is 'capable of repetition but likely to evade review.'" Id. (quoting Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980). But this court is not required to review an issue simply because the issue might arise again. In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).

Here, Brooks's detainer was cancelled by the expiration of his sentence on November 26, 1997. Thus, any decision by this court will have no direct effect on Brooks. This issue is capable of repetition, however. It is clear that other individuals are subject to detainers, and it is possible Brooks himself may be subject to a detainer again in the future. Further, it is likely that any action brought to remove a detainer such as this will evade review, as detainers are generally removed after a short period of time. Thus, we choose to address the issue on its merits.


On appeal from cases dismissed for failure to state a claim on which relief can be granted, the reviewing court need only determine "'whether the complaint sets forth a legally sufficient claim for relief,'" regardless of whether the facts alleged can be proven. Elzie, 298 N.W.2d at 32 (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)).

Brooks argues that the DOC violated its own rules and his due process rights by requiring him to serve his jail time in Scott County without permitting him to admit his violation and be sentenced to incarceration without a detainer hanging over his head.

A. OAR Rules Violation

The DOC's OAR rules state that

[w]hen warrants have been issued as detainers for releasees who are being prosecuted for new charges, * * *, the revocation process shall not begin until the court process has concluded. The court process will be considered concluded by dismissal of charges, a finding of not guilty, or the completion of any local incarceration time imposed by the court.

Minn. R. 2940.3000 (1997) (emphasis added). The DOC is required to hold a revocation hearing within 15 working days after the releasee's availability to the DOC. Minn. R. 2940.3500, subpt. 2 (1997). "Availability" is defined as

the date on which the offender has made bail, bond, or has been released on personal recognizance or no bail required; or completed any local incarceration time which results from a misdemeanor, gross misdemeanor, or felony stayed sentence.

Minn. R. 2940.0100, subpt. 2 (1997) (emphasis added).

In State ex rel. Griep v. Skon, this court reviewed whether a prison disciplinary hearing was properly delayed until after the offender completed his local jail term and became "available." 568 N.W.2d 453, 456 (Minn. App. 1997). In that case, Griep was on work release and electronic home monitoring when he failed a urinalysis test. Id. at 454-55. The DOC issued a warrant for his arrest eight days prior to his supervised release date. Id. Griep was arrested in December 1996 on other charges in Anoka County, and his warrant then became a detainer. Id. at 455. Griep was not charged with a disciplinary violation until after he was sentenced on the Anoka charges in March 1997. Id. Griep insisted he should have been served with a notice of disciplinary violation within eight days of his arrest in December. Id. This court stated:

[W]here the inmate, by his own conduct, makes himself unavailable for disciplinary proceedings, we cannot read the statute so narrowly as to impose an artificial time limitation.

Id. at 456. This court noted that although the DOC knew where Griep was, he was not "available" until he completed his Anoka County jail time. Id.

Brooks points out that under Minn. R. 2940.4300 (1997), he was permitted to make a written admission of his supervised release violation prior to the hearing. On May 15, 1997, Brooks's attorney sent a letter to the DOC on Brooks's behalf requesting an immediate hearing or, alternatively, admitting the violations and demanding execution of the balance of his sentence. The OAR's Deputy Executive Officer denied Brooks's request for an immediate hearing or execution of his sentence.

The DOC followed the OAR rules here. Despite Brooks's arguments, nothing in the rules indicates what action must be taken after a releasee makes a violation admission. The rules do state, however, that the revocation process shall not begin until local incarceration time is completed. Minn. R. 2940.3000. The DOC did not start the revocation process because Brooks had not completed his local jail time. Under the rules, he was unavailable to the DOC until that jail time was completed. Minn. R. 2940.0100, subpt. 2. Brooks's sentence for felony escape ran concurrently with his sentence in the Scott County jail. Brooks was given the benefit of that concurrent sentence. His felony escape sentence expired prior to his completion of his county jail sentence, and his detainer was removed, so he never became available to the DOC.

Under OAR rules, Brooks was not entitled to an immediate revocation hearing because he was incarcerated in another jurisdiction. His admission of his supervised release violation did not necessitate the immediate execution of his sentence or the release of the DOC's detainer on him.

B. Due Process Violation

Brooks does not indicate whether he is arguing that the DOC violated his procedural or his substantive due process rights, or both. Because he argues that his due process rights were violated by the DOC's refusal to permit him to admit his violation or to hold a revocation hearing prior to his release from the Scott County Jail, it appears he is arguing that his procedural due process rights were violated.

To support a claim for denial of procedural due process, "the claimant must establish the loss of a protectable property or liberty interest." State v. Behl, 564 N.W.2d 560, 566 (Minn. 1997). Liberty interests protected by the due process clause may be created by states:

But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.

Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 2300 (1995) (citations omitted).

Brooks insists his case is similar to Wolff v. McDonnell, where the Supreme Court concluded that Nebraska had created a liberty interest in good-time credits by guaranteeing these credits and devising specific sanctions for deprivation of them. 418 U.S. 539, 557 94 S. Ct. 2963, 2975 (1974). Brooks maintains his case differs from Sandin, where the Supreme Court held that appellant's placement in solitary confinement for misconduct after he was denied the right to present witnesses at his hearing "did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." 515 U.S. at 486, 115 S. Ct. at 2301. Brooks distinguishes his case from Sandin by noting that while appellant in Sandin was serving a 30-year-to-life sentence and was segregated for just 30 days, Brooks will have to serve his entire one-year sentence without eligibility for work release.

Both this court and the U.S. Supreme Court have ruled that releasees do not have a due process right to an immediate hearing on a release violation. In Moody v. Daggett, Moody shot and killed two people while on parole, and the Supreme Court held that he did not have a right to a parole revocation hearing prior to the expiration of his sentence for his latest convictions. 429 U.S. 78, 80, 86, 97 S. Ct. 274, 275, 278 (1976). The Supreme Court noted in Moody, where a pending warrant and detainer affected Moody's qualification for institutional programs, that not "every state action carrying adverse consequences for prison inmates automatically activates a due process right." Id. at 88 n.9, 97 S. Ct. at 279 n.9. We conclude that Moody is on point and gives us guidance.

In State v. Marti, Marti pleaded guilty to first-degree criminal sexual conduct in Minnesota and received probation and a stayed sentence. 372 N.W.2d 755, 756 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). While on probation, Marti was arrested and pleaded guilty to sexual assault in North Dakota and was sentenced to 11 years' imprisonment. Id. After he was paroled from North Dakota, a probation revocation hearing was held in Minnesota. Id. He argued to this court that he was entitled to be discharged immediately because his probation violation hearing was untimely. Id. at 757. This court held that Marti was not deprived of any constitutionally protected rights. Id. at 758.

In an Eighth Circuit case, Stewart v. Davies, Stewart, who was convicted of voluntary manslaughter in Kansas, was transferred to an Iowa prison. 954 F.2d 515, 515-16 (8th Cir. 1992). Under Kansas law, Stewart had the possibility of parole, but Iowa prison officials denied him eligibility for parole and rehabilitative programs. Id. at 516. The Eighth Circuit concluded that the Iowa officials had not made their decisions arbitrarily or capriciously because the decisions were based on the type of sentences received for certain crimes in Iowa and held that Stewart's due process rights or liberty interests in participating in rehabilitative programs or parole had not been violated. Id.

Brooks attempts to distinguish Moody by noting that any parole revocation decision, regardless of when it was made, would have no effect on what happened to Moody because his crimes were so severe that he would be in prison anyway. Brooks points out that in Marti, Marti had additional prison time to serve in North Dakota regardless of when the probation violation hearing was held. Brooks further argues that because his ability to serve a concurrent sentence is not an issue here, Moody and Marti are not relevant. Brooks insists that Stewart is distinguishable from his case because Brooks is trying to access an existing program for which he is otherwise eligible, work release, while Stewart wanted something that was unavailable.

Contrary to Brooks's arguments, the record is not clear that Brooks would have been eligible for work release in Scott County. Even assuming that Brooks would have been eligible for work release, there is no support for Brooks's contention that the DOC violated his due process rights by requiring him to serve his county jail time before granting him a revocation hearing. Although Brooks wished to participate in the work release program, and that is laudable, access to work release/Huber Law is not a "enumerated constitutional right." It is simply a good part of rehabilitation. The Department of Corrections recognizes that, but follows a rule that time owed to other jurisdictions should be served before a probation/revocation violation hearing is conducted. Brooks did not serve any additional prison time for his violation because his prior sentence ran concurrently with his sentence in Scott County jail. He merely had to serve his sentence in jail. We conclude that Brooks did not suffer a constitutional injury. The district court did not err in dismissing Brooks's complaint and finding that it was not legally sufficient to support a claim for relief.


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