This opinion will be unpublished and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

A05-1355

 

Hollis J. Larson, Petitioner,

Appellant,

 

vs.

 

Joan Fabian, Commissioner of Corrections,

Respondent.

 

Filed May 16, 2006

Affirmed

Shumaker, Judge

 

Washington County District Court

File No. C3-05-478

 

 

Hollis J. Larson, OID #114153, Minnesota Correctional Facility, Oak Park Heights, 5329 Osgood Avenue North, Stillwater, MN 55082 (pro se appellant)

 

Mike Hatch, Attorney General, Jon K. Murphy, Assistant Attorney General, 900 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant challenges the district court’s denial of his petition for a writ of habeas corpus and motion for appointment of counsel and failure to rule on several of his motions, including his claim that he was illegally arrested following a violation of his intensive supervised release.  We affirm.

FACTS

Appellant Hollis J. Larson is serving prison time for multiple convictions of criminal sexual conduct in Anoka County in 1992 and Goodhue County in 1993.  He has unsuccessfully appealed those convictions.  State v. Larson, No. C8-93-179 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993); State v. Larson, 520 N.W.2d 456 (Minn. App. 1994), review denied (Minn. Oct. 14, 1994).  He has also unsuccessfully appealed a denial of postconviction relief.  Larson v. State, No. C1-96-2418 (Minn. App. 1997), review denied (Minn. Aug. 5, 1997).

In June 2003, respondent commissioner of corrections placed Larson on Intensive Supervised Release (ISR), subject to various conditions.  On August 23, 2003, Larson’s parole agent obtained an administrative arrest warrant based on the allegation that Larson violated his release terms.  Larson was taken into custody on that day.  The respondent held a revocation hearing on September 2, 2003, revoked Larson’s release, gave him 365 days of confinement, and required that he complete a treatment program.

On January 11, 2005, Larson filed a petition for a writ of habeas corpus and moved on February 9, 2005, for an evidentiary hearing so that he would be able to “challenge the many constitutional rights violations he alleges in the petition.”  The district court denied the petition without an evidentiary hearing, and, in a detailed memorandum, the court addressed each of the issues Larson raised in his petition.  Alleging various abuses of judicial discretion and errors of law, Larson appeals.

D E C I S I O N

Before a court may issue a writ of habeas corpus, the petitioner must set forth sufficient facts to establish a prima facie case for discharge.  State ex rel. Fife v. Tahash, 261 Minn. 270, 271, 111 N.W.2d 619, 620 (1961).  In other words, the petitioner must make the requisite showing that he is being detained or is incarcerated illegally.  On review of the denial of a petition for a writ of habeas corpus, this court is limited to a consideration only of whether the district court had jurisdiction; whether the petitioner’s sentence was authorized by law; and whether the district court denied the petitioner’s basic constitutional rights.  State ex rel. O’Neill v. Rigg, 256 Minn. 293, 295, 98 N.W.2d 142, 144 (1959).  The district court’s factual findings will be sustained if they are reasonably supported by the record.  Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn. App. 1997).  Unsupported assertions are not subject to review.  State ex rel. Dinneen v. Tahash, 272 Minn. 7, 13, 136 N.W.2d 847, 851 (1965).

Larson raises 17 categories of issues in this appeal.  They may be grouped generally into questions relating to (1) probable cause and habeas corpus procedures; (2) discovery; (3) convictions and sentencing; (4) representation by defense counsel; and (5) procedures used and sanctions imposed by the commissioner of corrections.  Most of the issues have been considered or could have been raised in one or more of Larson’s three prior appeals and thus are no longer reviewable.  State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).  For example, the propriety of Larson’s convictions and sentences and the allegation of ineffective assistance of counsel are beyond the proper scope of review in the instant matter.  Nor are Larson’s discovery requests and his motion for default judgment against the commissioner properly reviewable in this appeal.

Intensive Supervised Release

            The commissioner placed Larson on ISR in June 2003.  Larson claims that the placement was in violation of statute and occurred under a law that did not exist when he was convicted, thus constituting an ex post facto violation.

            Under the laws in existence when Larson was sentenced for his various crimes, the commissioner of corrections had broad authority to adopt rules regarding the supervision and release of prison inmates.  Minn. Stat. § 243.05, subds. 1(d), 2 (1990).  That authority included the discretion to impose intensive community supervision for all or a portion of an inmate’s supervised-release term.  Minn. Stat. § 244.12, subd. 1 (1990).  Thus, at the time Larson was convicted, the commissioner had legal authority to require supervised release for his “parole” term and to impose intensive supervision in the community.  A later codification of that authority and the commissioner’s application of the new statute did not violate the ex post facto law prohibition, Minn. Stat. § 244.05, subd. 6 (2002), for two reasons.  First, that authority previously existed.   Second, an ex post facto law is one that “renders an act punishable in a manner in which it was not punishable when it was committed.”  State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995) (citation omitted).  To be considered an ex post facto law, the new law must “(1) punish as a crime an act which was innocent when committed; (2) increase the burden of punishment for a crime after its commission; or (3) deprive one charged with a crime of a defense that was available when it was committed.”  Id. Because the commissioner had the authority at the times of Larson’s convictions to require the type of supervised release that eventually came to be described in a statute, there was no ex post facto violation.  See Chauvin v. Erickson, 998 F.2d 617, 619 (8th Cir. 1993) (new rule requiring inmate to work to earn good time is not ex post facto when prior regulations allowed discipline for refusing a work order).

            Larson also challenges, on the same grounds, the requirement that he participate in treatment and register as a predatory offender under Minn. Stat. § 244.05, subd. 5 (2004).  The commissioner had the broad authority at the time of Larson’s convictions to impose release conditions that the commissioner found to be necessary and appropriate.  Minn. Stat. § 244.15, subd. 7 (1990).  Larson has not demonstrated that the condition of treatment was inappropriate for him as a repeat sex offender.  Thus, the commissioner properly imposed the condition of treatment.

            Registration requirements such as those at issue here are nonpunitive and within the state’s civil regulatory power.  Boutin v. LaFleur, 591 N.W.2d 711, 717 (Minn. 1999); In re Welfare of C.D.N., 559 N.W.2d 431, 433 (Minn. App. 1997).  A nonpunitive civil regulation does not violate the ex post facto prohibition.  The commissioner did not act illegally in placing Larson on ISR and imposing the requirements of treatment and registration.

Probable Cause

            Larson contends that there was no probable cause for the arrest warrant that ultimately led to the revocation of his supervised release.  In the context of an arrest warrant for a parole violation, probable cause exists if there is a reasonable factual basis on which to conclude that the parolee has violated a condition of his release.  See In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (holding that test of probable cause is whether objective facts warrant the conclusion that there has been a violation).  Larson acknowledges that he made a telephone call to his release agent in which he said, “I’ll do something people will regret.”  Larson’s halfway-house case manager also heard the statement.  The release agent and the case manager interpreted the statement to be a threat.  Larson contends that he meant that he might do harm to himself and did not intend to threaten anyone.  On its face, the statement could reasonably be interpreted to be a threat.  That is sufficient to establish probable cause for the issuance of an administrative arrest warrant.

Evidentiary Hearings

            Larson contends that he should have been given an opportunity to be heard on the probable-cause allegation, that he should have had a preliminary revocation hearing, and that he was entitled to a habeas corpus evidentiary hearing.

            As noted above, probable cause was established by Larson’s acknowledged statement to his release agent.  Although he could have been given an opportunity to explain his intent, the words themselves are sufficient to support a finding of probable cause.  Thus, any failure to allow an evidentiary hearing, even if error, was harmless.

            Generally, a preliminary revocation hearing is held prior to a final decision on a revocation allegation so that a parolee’s liberty is not significantly infringed.  Pearson v. State, 308 Minn. 287, 289, 241 N.W.2d 490, 492 (1976).  Larson’s revocation hearing was held nine days after his arrest.  This was a reasonable delay and did not significantly infringe Larson’s liberty.

            An inmate does not have an absolute right to a habeas corpus evidentiary hearing.  Dinneen, 272 Minn. at 14, 136 N.W.2d at 852.  But a hearing should be held when there are material facts in dispute that need to be resolved to determine the inmate’s constitutional rights.  State ex rel. Rankin v. Tahash, 276 Minn. 97, 100, 149 N.W.2d 12, 15 (1967).  No hearing is required when the inmate raises only questions of law.  Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988).

            In his motion for a habeas corpus evidentiary hearing, Larson asserted that a hearing was necessary to address “many constitutional rights violations.”  Most of those alleged violations related to his convictions and sentences and to procedures and sanctions relating to his incarceration.  None of these allegations raised genuine fact issues that would necessitate an evidentiary hearing.  As to the supervised-release revocation, a hearing was held in a timely manner, and Larson had the opportunity to be heard as to all matters pertinent to the alleged release violation and the question of revocation.   There were no further factual disputes for the district court to consider; rather, Larson’s issues were questions of law that the district court could resolve on the record.  Furthermore, the issues of good time and release date were matters of computation that the court could reasonably accomplish without an evidentiary hearing.  Finally, the court correctly held that Larson’s “continued imprisonment is within the term of the sentence he was committed to.”

Appointment of Counsel

            Larson contends that the district court abused its discretion by refusing to appoint defense counsel for the habeas corpus proceeding.  In Minnesota, there is no statutory right to counsel in a habeas corpus proceeding.  Minn. Stat. §§ 589.29, .30, 611.14 (2004).  Furthermore, habeas corpus is a civil matter as to which a litigant does not have a constitutional right to appointed counsel.  Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998).  The court may, in its discretion, appoint counsel if the case warrants.  McCall v. Benson, 114F.3d 754, 756 (8th Cir. 1997).  In deciding whether or not to exercise that discretion, the court considers the complexity of the facts and legal issues, the litigant’s apparent ability to present his claim without assistance of counsel, and whether the court and the litigant might benefit from the appointment of counsel.  Id.  Although Larson raised many issues in his habeas corpus petition, many of them had been resolved by prior appellate decision and others exceeded the scope of proper habeas corpus consideration.  The remaining issues were presented with sufficient clarity that the court could readily understand what Larson was contending and the purported legal bases supporting his contentions.  And there were no complex factual disputes.  The district court did not abuse its discretion in declining to appoint counsel to represent Larson in the habeas corpus proceeding.

Other Claims

            We find no merit in Larson’s remaining contentions.  Briefly, he erroneously relies on federal law respecting his “good-time” calculations and fails to show how calculations under state law were erroneous; his false-imprisonment claim, relating to January 30, 2003, is moot, as the district court held; as to the various “good-time” issues and disciplining sanctions, he has failed to exhaust his administrative remedies, as the district court held; and his parole-transfer request is without merit to the extent it has previously been denied and is premature as it might relate to a future transfer request.

            Affirmed.