This opinion will be unpublished and

may not be cited except as provided by

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





In Re the Matter of: Jessie Lee.

In Re the Matter of: Clark A. Kruger.

Filed June 8, 1999


Harten, Judge

Washington County District Court

File Nos. C7985355, C4984973

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN 55408 (for appellants Lee and Kruger)

Mike Hatch, Attorney General, Paul Merwin, Assistant Attorney General, Suite 1100, 445 Minnesota St., St. Paul, MN 55101 (for respondent state)

Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Willis, Judge.



This consolidated appeal is from orders denying petitions for writs of habeas corpus filed by appellants Clark Kruger and Jessie Lee, who challenge various actions of the Department of Corrections (DOC) and the Department of Human Services (DHS) regarding their dual commitments. We affirm.


Appellant Clark Kruger (formerly known as Clark Bailey) was sentenced in 1977 to consecutive indeterminate sentences of 0-20 years for criminal sexual conduct and 0-40 years for kidnapping; the kidnapping sentence was later reduced to 0-20 years. Kruger was also civilly committed as a psychopathic personality. In 1981, the Minnesota Corrections Board (MCB) declined to set a target release date (TRD) for Kruger's release on parole and instead set his release date at expiration of sentence. In 1994, Kruger sought a transfer to a medium security correctional institution that had a sex offender treatment program for inmates diagnosed as sexual psychopaths. The DOC denied this request because Kruger was subject to dual commitment.

Appellant Jessie Lee (formerly known as Dennis Weisinger) was sentenced in 1976 to 0-40 years for kidnapping and 0-30 years for sodomy. In 1977, he was placed under a civil commitment as a psychopathic personality. In 1981, the MCB denied him a TRD and set his release date at expiration of sentence. Lee has made several requests for transfer to DHS custody or to a medium security facility for entry into treatment programs, but these requests have been denied because of Lee's dual commitment.


In an appeal from an order involving a petition for writ of habeas corpus, this court gives great weight to the district court's findings, which will be upheld if supported by the evidence. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). Questions of law are reviewed de novo. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

In their petitions for writs of habeas corpus, appellants sought orders transferring them to DHS custody and orders requiring the DOC to conduct new parole review hearings. But at oral argument they limited their claims for relief to obtaining evidentiary hearings on the issues raised in their petitions. A hearing is required on a petition for habeas corpus only if the petition demonstrates that a factual dispute exists. See Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988).

There is no factual dispute affecting appellants' claims that they should be transferred to DHS custody for placement in the Minnesota Sex Offender Program (MSOP). Appellants have neither statutory nor constitutional rights to treatment before their prison terms are completed. See Minn. Stat. § 253B.185, subd. 2(b) (1998) (requiring that inmate under dual commitment first serve prison sentence before transfer to DHS facility). Moreover, the district court properly found that appellant Kruger has previously raised this issue, which is therefore barred by collateral estoppel. See Bailey v. Gardebring, 940 F.2d 1150, 1155 (8th Cir. 1991) (holding that Bailey's claimed right to sex offender treatment exceeded reach of prisoners' right to treatment for serious medical condition, particularly where no evidence of effective treatment for condition). While Kruger claims he is raising a new issue because there is now a treatment program for sexual psychopaths, this does not change the result in Bailey.

Appellants also claim that denial of their request for transfer violates equal protection. But the sex offenders appellants point to as currently being treated at MSOP have all completed their prison terms. They are not similarly situated for purposes of equal protection. There being no factual dispute regarding this claim, appellants are not entitled to an evidentiary hearing.

Appellants contend that the MCB violated its own policies and denied them their rights to due process when it decided in 1981 not to give them target release dates (TRD), but instead to set their anticipated release dates at expiration of sentence. Kruger also argues that the MCB's decision in his case was based on erroneous information concerning his sexual history.

As the state points out, an inmate has no constitutional right to be paroled before expiration of sentence. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979). The MCB's Parole Decision-Making Guidelines did provide that "each inmate will be assigned a target release date." Parole Decision-Making Guidelines § 7-104.2a (1979). But Minnesota courts have long recognized that some inmates were assigned the expiration of their sentence as the TRD. See, e.g., Wooldridge v. State, 342 N.W.2d 636 (Minn. 1984); State v. Morse, 398 N.W.2d 673, 679 (Minn. App. 1987), review denied (Minn. Feb. 18, 1987). Although appellants cite several provisions in the Guidelines that imply a TRD is mandatory, we defer to the MCB's longstanding interpretation that it may assign sentence expiration as the TRD. See Resident v. Noot, 305 N.W.2d 311, 312 (Minn. 1981) (stating that court generally defers to long-standing agency interpretation of its own rule). Moreover, the United States Supreme Court has now overruled its earlier caselaw in which it held that mandatory language in prison guidelines creates a liberty interest. Sandin v. Conner, 515 U.S. 472, 483-84, 115 S. Ct. 2293, 2300 (1995). As a matter of law, appellants cannot claim a violation of liberty interest that would warrant overturning or reopening the MCB's 1981 parole release decisions.

Appellant Kruger attempts to raise a factual issue regarding the MCB's decision in his case. But his affidavit, stating that in 1976 he had no prior sex offenses in his criminal record, does not contradict the MCB's finding that Kruger had a number of Spreigl offenses, which need not be convictions. Moreover, the record shows that Kruger has admitted some of this history of sexual misconduct. Therefore, this claim raises no material factual issue.

Finally, appellants contend that they are entitled to a transfer to DHS custody under State v. Waldon, 287 N.W.2d 628, 631 (Minn. 1979), which identified a "gap in responsibility" for inmates under dual commitment. But appellants are not in civil custody, and they have not shown that they are being denied the benefits accorded other inmates, unlike the appellant in Waldon. See id. at 633.

We conclude that there is no material factual dispute warranting an evidentiary hearing and that appellants' claims fail as a matter of law.