This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2368

 

 

Clark A. Kruger, petitioner,

Appellant,

 

vs.

 

Kevin Goodno,

Commissioner of Human Service,

Respondent.

 

 

Filed March 14, 2006

Affirmed

Toussaint, Chief Judge

 

 

Nicollet County District Court

File No. 52-CV-05-464

 

 

David L. Kraker, David L. Kraker & Associates, 3109 Hennepin Avenue South, Minneapolis, MN  55408 (for appellant)

 

Mike Hatch, Attorney General, Barbara B. Windels, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, C-2000 Government Center, 300 South Sixth Street, Minneapolis, MN  55487 (for respondent)

 

 

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            This is an appeal by Clark A. Kruger[1] from an order denying a petition for a writ of habeas corpus, in which he challenged his 1977 indeterminate commitment as a psychopathic personality.  We affirm.

D E C I S I O N

            Appellant asserts that he suffers from terminal cancer and will most likely survive no longer than two to three years.  Consequently, he argues that his indeterminate commitment as a psychopathic personality violates both due process and the prohibition against double jeopardy because he will not live long enough to complete the treatment program and because his confinement will then be only for preventive detention.  He seeks relief from confinement through habeas corpus.  The district court denied the petition on the merits.

            Where the facts are undisputed, “[a]n appellate court will review a habeas corpus decision de novo.”  Joelson v. O’Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999).

            “Committed persons may challenge the legality of their commitment through habeas corpus.”  Id.  The scope of habeas is, however, limited; it may not be used to address issues previously raised, as a substitute for appeal, or to collaterally attack a commitment.  Id.  Further, where another means is available to raise the claims, a habeas petition is properly dismissed.  Kelsey v. State, 283 N.W.2d 892, 893-94 (Minn. 1979) (habeas action properly dismissed where claims could be and were raised in a direct appeal and through postconviction remedies).

            Appellant is seeking a discharge from confinement.  The legislature has set out a statutory procedure for those seeking discharge from a psychopathic personality commitment.  Minn. Stat. §§ 253B.18, .19 (2004).  The supreme court has upheld the applicability of this discharge statute as applied to a psychopathic personality commitment.  Call v. Gomez, 535 N.W.2d 312, 314, 319-20 (Minn. 1995) (also holding that continued confinement did not violate prohibition against double jeopardy).  Under this procedure, a person committed as a psychopathic personality may seek discharge from commitment by filing a petition for a hearing with the Commissioner of Human Services.  Minn. Stat. § 253B.18, subd. 5(a) (2004); see Minn. Stat. § 253B.185, subd. 1 (2004) (providing procedures in section 253B.18 apply to persons committed as psychopathic personalities).  The commissioner must then convene a “special review board” (SRB) to consider the petition.  Minn. Stat. § 253B.18, subds. 4c(a), 5.  Following a hearing, the SRB issues findings of fact and a recommendation that the petition be granted or denied.  Id., subd. 5(b).  If the SRB recommends that the petition for discharge be denied, the commissioner must deny it.  Id., subd. 15.  If it recommends the petition be granted, the commissioner must then make the final administrative decision whether or not to grant it.  Id.

            If the commissioner denies relief, the person may then petition for rehearing and reconsideration before a special three-judge district court panel appointed by the supreme court.  Minn. Stat. § 253B.19, subds. 1, 2 (2004).  This review is de novo.  Id., subd. 3.  If the judicial appeal panel denies relief, the person may then appeal to the court of appeals as in other civil cases.  Id., subd. 5.

            Appellant has in fact availed himself of this process.  The special review board considered his petition and, after a lengthy memorandum, recommended that the petition to discharge him be denied.  The Commissioner of Human Services, based on these findings and recommendations, denied the petition accordingly.  Appellant petitioned for rehearing and reconsideration of the matter by a judicial appeal panel.  That petition is currently pending.

            The district court denied the petition on the merits.  But because appellant has brought the same claims through the special review board and judicial appeal panel process, he cannot seek to obtain the same relief through habeas corpus.  Consequently, we affirm the district court’s denial of appellant’s petition, although on different grounds.

            Affirmed.