A05-1142

State of Minnesota,

ex. rel. J.S.B., petitioner,

Appellant,

vs.

Sheryl Hvass, Commissioner, et al.,

Respondents.

Filed May 2, 2006

Affirmed; motions denied

Willis, Judge

Washington County District Court

File No. C2-05-4

J.S.B., OID #129130, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se appellant)

Mike Hatch, Attorney General, Tricia L. Matzek, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondents)

Considered and decided by Willis, Presiding Judge; Kalitowski, Judge; and Stoneburner, Judge.

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

WILLIS, Judge

In this appeal from the denial of his petition for a writ of habeas corpus, appellant argues that (1) the duration of his life prison sentence was meant to be less than life; (2) he has a due-process liberty interest in a supervised-release date; (3) respondents exceeded their authority by conducting a review of appellant’s life sentence and denying appellant supervised release based on facts not found by a jury; (4) respondents exceeded their authority by ordering appellant to complete rehabilitative programs under the threat of increased incarceration time; (5) respondents wrongly required appellant to give a blood sample for DNA testing; and (6) respondents wrongly designated appellant a predatory offender. Because appellant’s arguments lack merit, we affirm.

FACTS

Appellant J.S.B. pleaded guilty to first-degree murder, in violation of Minn. Stat. ง 609.185 (1) (1986), and attempted first-degree murder, in violation of Minn. Stat. ง 609.17 (1986), for acts committed in December 1987. J.S.B. was sentenced to life and to 130 months in prison, respectively, for those offenses, and the terms are being served concurrently. In April 2005, J.S.B. filed a pro se petition for a writ of habeas corpus, which the district court denied. This appeal follows.

D E C I S I O N

On appeal from the denial of a petition for a writ of habeas corpus, the district court’s findings are entitled to great weight and will be sustained if they are reasonably supported by the evidence. State v. Schwartz, 615 N.W.2d 85, 90 (Minn. App. 2000), aff’d, 628 N.W.2d 134 (Minn. 2001). Questions of law, however, are subject to de novo review. State ex rel. McMaster v. Benson, 495 N.W.2d 613, 614 (Minn. App. 1993), review denied (Minn. Mar. 11, 1993).

Life Prison Term

J.S.B. first argues that “the legislature intended for offenders convicted on or after May 1, 1980, only a minimum sentence that counteracts the seemingly indeterminate life sentence provision of Minn. Stat. 609.185 (1987)” and that “the duration of confinement on a life sentence . . . should be only twenty two (22) years.” A petition for a writ of habeas corpus may be used to challenge a sentence not authorized by law. Breeding v. Swenson, 240 Minn. 93, 96, 60 N.W.2d 4, 7 (1953).

J.S.B. was convicted of first-degree murder, in violation of Minn. Stat. ง 609.185 (1) (1986), which provides for a sentence of “imprisonment for life.” Although J.S.B. was eligible for supervised release at the discretion of the commissioner of corrections after serving a minimum term of 17 years in prison, this does not alter his sentence to less than life in prison. See Minn. Stat. ง 244.05, subds. 4, 5 (1986); McMaster, 495 N.W.2d at 615 (stating that post-1980 life sentences are indeterminate and release is discretionary). J.S.B. provides no authority that supports the conclusion that his life sentence is actually a sentence of less than life or that his sentence is limited to 22 years. Therefore, we conclude that J.S.B.’s sentence for violating Minn. Stat. ง 609.185 (1) (1986) is a life term in prison with the possibility of supervised release after 17 years.

Due-Process Liberty Interest

Next, J.S.B. appears to argue that Minn. Stat. ง 244.05 (1986) gives him a “due process liberty interest in supervised release” after he has served 17 years of his life sentence. J.S.B. claims that he was deprived of this liberty interest when, after a life-sentence review in November 2001, his incarceration was extended to December 2008, four years beyond “his seventeen (17) year minimum” sentence. A petition for a writ of habeas corpus may be used to review allegations that parole authorities failed to follow applicable statutory and constitutional principles in denying parole. Kelsey v. State, 283 N.W.2d 892, 894-95 (Minn. 1979).

A person may not be deprived of a liberty interest without due process of law. U.S. Const. amend. XIV, ง 1. This constitutional protection extends to inmates. See Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005) (concluding that “[i]nmates are entitled to some degree of protection under the Due Process Clause”). An inmate has a liberty interest in a supervised-release date only if the inmate has “a legitimate claim of entitlement to being released from prison on” the proposed supervised-release date. Id. The completion of 17 years of his sentence only makes J.S.B. eligible for supervised release, at the discretion of the commissioner of corrections. See Minn. Stat. ง 244.05, subds. 4, 5 (1986). The commissioner is not required to grant supervised release to an inmate serving a life sentence. See State v. Morse, 398 N.W.2d 673, 679 (Minn. App. 1987) (concluding that an inmate serving a life prison term has no right to be assigned a target release date and therefore does not have a liberty interest in such a date), review denied (Minn. Feb. 18, 1987). J.S.B., who is serving a life sentence, has no legitimate claim of entitlement to being released after serving 17 years of his life sentence and therefore has no liberty interest in a supervised-release date at the expiration of 17 years of his sentence. Therefore, we do not need to analyze whether the denial of supervised release violated J.S.B.’s constitutional right to due process of the law.

Life-Sentence Review

J.S.B. argues that respondents exceeded their authority by assembling a “parole board style panel” and by denying him supervised release based on facts not found by a jury, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). The commissioner of corrections is authorized to promulgate rules by which supervised release may be granted to an inmate serving a life sentence. Minn. Stat. ง 244.05, subd. 5(a) (2000). According to Minnesota Rules, the commissioner is required to convene an advisory panel to review an inmate who is serving a life sentence three years prior to that inmate’s supervised-release-eligibility date to establish a projected release date or a future review date. Minn. R. 2940.1800, subps. 1, 2 (2001). The advisory panel must consider an “inmate’s entire case history, including the facts and circumstances of the offense for which the life sentence is being served; past criminal history, institutional adjustment, program team reports, psychological and psychiatric reports . . . ; and the results of community investigations.” Id., subp. 2. Therefore, respondents did not exceed their authority by conducting a review of J.S.B.’s life sentence. Further, Apprendi does not apply here. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S. Ct. at 2362-63. The statutory maximum sentence here is life, a sentence that cannot in any event be extended by the review process.

Rehabilitative Programs

J.S.B. also argues that respondents violated Minn. Stat. งง 244.02 and .03 by ordering him to “complete mutual agreement and voluntary programs or face longer incarceration.” Section 244.02 was repealed in 1999 and is, therefore, not applicable here. See 1999 Minn. Laws ch. 126, ง 13, at 523. The commissioner is authorized to “impose disciplinary sanctions upon any inmate who refuses to participate in rehabilitative programs.” Minn. Stat. ง 244.03 (2000). Respondents did not exceed their authority by ordering J.S.B. to participate in prison programs.

Requiring DNA Analysis

Next, J.S.B. appears to argue that Minn. Stat. ง 609.117 (2000), which requires certain offenders to provide a biological specimen for DNA analysis, is an ex post facto law as applied to him. J.S.B. claims that in August 2000, he was coerced “into signing a consent form to withdraw DNA pursuant to Minn. Stat. 609.3461,” renumbered in 1999 as Minn. Stat. ง 609.117. See 1999 Minn. Laws ch. 216, art. 3, ง 9, at 1316. J.S.B. argues that because his 1983 juvenile adjudication of second-degree criminal sexual conduct, in violation of Minn. Stat. ง 609.343 (1982), which in turn triggers section 609.117, occurred before section 609.117 became effective in 1989, that section should not apply to him. A petition for a writ of habeas corpus may be used to challenge treatment of an inmate or an alleged violation of constitutional rights. State ex rel. Cole v. Tahash, 269 Minn. 1, 7-9, 129 N.W.2d 903, 907-08 (1964).

Section 609.117 provides that the commissioner of corrections or a local corrective authority shall order an inmate “to provide a biological specimen for the purpose of DNA analysis” before completion of his prison term if the inmate has not already provided such a specimen and the inmate was convicted of murder under section 609.185. Minn. Stat. ง 609.117, subd. 2(1)(i) (2000). Because J.S.B. was convicted of murder under section 609.185, and there is no indication that J.S.B. had previously provided a biological specimen for DNA analysis, section 609.117 authorizes the withdrawal of the DNA sample from J.S.B., without having to rely on J.S.B.’s 1983 juvenile adjudication as a predicate offense. And because section 609.117 is “not penal in nature” and, therefore, does not impose a punishment greater than the law in effect when J.S.B. was convicted of first-degree murder, the section is not an ex post facto law as applied to J.S.B. See Kruger v. Erickson, 875 F. Supp. 583, 589 (D. Minn. 1995) (concluding that Minn. Stat. ง 609.3461, renumbered as section 609.117, is not a penal statute and does not violate the Ex Post Facto Clause).

Predatory-Offender Designation

J.S.B. also claims that in August 2001 he was improperly designated “a predatory offender required to register” under Minn. Stat. ง 243.166 based on his 1983 juvenile adjudication of second-degree criminal sexual conduct. J.S.B. appears to argue that section 243.166 does not apply to him and that application of the statute based on his 1983 adjudication violates the constitutional prohibition against ex post facto laws.

It is unclear what relief J.S.B. requests. And there is no evidence in the record that J.S.B. is currently designated as a “predatory offender.” But even if we were to consider the merits of J.S.B.’s claim, Minnesota law authorizes his designation as a predatory offender. Because J.S.B. was not incarcerated or under supervision for one of the qualifying offenses listed in section 243.166 when that section became effective, J.S.B. is correct that section 243.166 does not require him to register as a predatory offender. See Minn. Stat. ง 243.166, subds. 1, 10 (2000). But a person also must register as a “predatory offender” if:

(1) the person is convicted of a crime against the person; and

(2) the person was previously convicted of or adjudicated delinquent for an offense listed in section 243.166, subdivision 1, paragraph (a), but was not required to register for the offense because the registration requirements of that section did not apply to the person at the time the offense was committed.

Minn. Stat. ง 243.167, subd. 2 (2000). J.S.B. was convicted of first-degree murder, in violation of section 609.185, which is a crime against the person. See id., subd. 1 (2000). And in 1983, J.S.B. was adjudicated as a delinquent for second-degree criminal sexual conduct, in violation of Minn. Stat. ง 609.343, an offense listed in section 243.166, subdivision 1, paragraph (a), before the registration requirements of section 243.166 became effective. Furthermore, we have previously decided that section 243.166 is regulatory and not punitive in nature and that application of this section to offenders who were convicted but not released from prison before the section took effect does not violate the Ex Post Facto Clauses of the United States and Minnesota Constitutions. State v. Manning, 532 N.W.2d 244, 246-49 (Minn. App. 1995), review denied (Minn. July 20, 1995).

II.

The parties made several motions, which were deferred until our consideration of J.S.B.’s appeal on its merits. We now deny all of those motions. J.S.B. moved to strike respondents’ brief and affidavit with exhibits, arguing that they are not part of the record. In response, respondents moved to supplement the record with a DNA-specimen-collection consent form signed by J.S.B. and J.S.B.’s February 2005 status-history report. Because the rules of appellate procedure allow respondents to file a brief in response to J.S.B.’s brief, we deny J.S.B.’s motion to strike respondents’ brief. See Minn. R. Civ. App. P. 128.02, subd. 2, 131.01, subd. 2. Because it was not necessary to consider respondents’ exhibits to decide J.S.B.’s claims, we deny their motion to supplement the record.

Another of J.S.B.’s motions consists primarily of additional arguments on the merits of his appeal, which this court has construed as a motion to accept additional briefing. See Minn. R. Civ. App. P. 128.02, subds. 1, 3-4 (providing that an appellant may file a brief and a reply brief, but no additional briefs may be filed without leave of the appellate court). In his motion, J.S.B. also raises a new claim that “his rights were violated in prison discipline proceedings.” Issues not argued in an appellant’s brief are waived and will not be considered if raised in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990); Minn. R. Civ. App. P. 128.02, subd. 3 (providing that a “reply brief must be confined to new matter raised in the brief of the respondent”). Respondents have had no opportunity to respond to J.S.B.’s additional arguments or to brief the new claim that he raises. We therefore deny J.S.B.’s motion for additional briefing, and we decline to review his new arguments and claim.

Further, J.S.B. requested the recusal of two members of this panel, but he provided no justification for his request. His request is denied. J.S.B. also moved this court to certify to the supreme court the question of whether inmates serving life prison terms are entitled to supervised release after serving 17 years of their sentences. We have addressed this question in this decision, and J.S.B. may petition the supreme court for review of our decision under Rule 117 of the Minnesota Rules of Civil Appellate Procedure. His motion is denied.

Affirmed; motions denied.