Michael Wayne, petitioner, Appellant, vs. Joan Fabian, Commissioner of Corrections, Respondent, Robert Feneis, Warden for Rush City Correctional Facility, Respondent. A05-1789, Court of Appeals Unpublished, June 27, 2006.

This opinion will be unpublished and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

A05-1789

Michael Wayne, petitioner,

Appellant,

vs.

Joan Fabian, Commissioner of Corrections,

Respondent,

Robert Feneis,

Warden for Rush City Correctional Facility,

Respondent.

Filed June 27, 2006

Affirmed

Lansing, Judge

Chisago County District Court

File No. 13-CV-05-313

Michael Wayne, OID NO. 142128, 7600 – 525th Street, Rush City, MN 55069 (pro se appellant)

Brent D. Wartner, Associate Legal Counsel, 1450 Energy Park Drive, Suite 200, St. Paul, MN 55108-5219 (for respondent Joan Fabian)

Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Shumaker, Judge.

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

LANSING, Judge

On appeal from the denial of a petition for writ of habeas corpus, Michael Wayne challenges the district court’s determination that the commissioner of corrections did not abuse her discretion or violate Wayne’s constitutional rights by denying his request for parole. Wayne also challenges the district court’s denial of his motions to exceed page limits, for production of documents, and to proceed in forma pauperis. Because we conclude that Wayne was not deprived of his due process rights and that the district court did not abuse its discretion by summarily denying his petition and the accompanying motions, we affirm.

F A C T S

A jury found Michael Wayne guilty of first- and second-degree murder, and the district court sentenced him in March 1987 to a life sentence. Wayne received his first pre-parole hearing in September 2000, nearly three years in advance of his parole-eligibility date. The advisory panel determined that Wayne’s incarceration should continue for another four years at which time he would receive a parole hearing. In the letter advising Wayne of the panel’s decision, the commissioner of corrections informed Wayne that he would be transferred to a sex-offender treatment program and also provided four directives to increase his chance of parole. These directives required Wayne to follow aftercare recommendations, expand his social-support systems, develop hobbies that involve social interaction, and continue his efforts to find a sponsor to assist him in his plan to work with at-risk youth.

Four years later, in October 2004, the advisory panel held a review hearing to consider whether to parole Wayne. Approximately two weeks later, the commissioner notified Wayne by letter that the panel had denied parole. The commissioner listed the reasons for the denial as Wayne’s failure to complete the directives from the 2000 review and his continued refusal to take responsibility for his role in the “very brutal murder of a young mother.” The commissioner continued his incarceration for another eight years.

Wayne filed a petition for habeas corpus with the district court in April 2005. The petition raised seventeen issues related to the denial of parole. Before filing his petition, Wayne requested that he be allowed to proceed in forma pauperis (IFP). The district court denied this request based on Wayne’s failure to submit the requisite affidavits.

In conjunction with the petition, Wayne filed a motion for production of documents and a motion to exceed the page limit for his memorandum of law and accompanying appendix. He did not, however, submit a copy of the memorandum or appendix with the petition. In May 2005, after filing the petition and his motions, Wayne renewed his request to proceed IFP and submitted the necessary affidavit. Because no fees were pending, the district court declined to review the IFP application.

In August 2005 the district court determined that an evidentiary hearing was not required and denied Wayne’s petition for habeas corpus. The district court did not address Wayne’s specific allegations but determined generally that the parole-review procedures did not violate Wayne’s due process rights.

Wayne appealed to this court and requested leave to proceed IFP. In response to our order requiring Wayne to either submit an IFP order from the district court or pay the appellate fees, Wayne filed another IFP affidavit with the district court and submitted documentation of his finances. The district court determined that Wayne had sufficient funds to pay the filing fee and denied his request. On appeal Wayne renews his claims that the denial of parole violated his constitutional rights, challenges the district court’s denial of his IFP petitions, and asserts error in the denial of his motions to exceed page limits and for production of documents.

D E C I S I O N

A writ of habeas corpus is a statutory civil remedy available “to obtain relief from [unlawful] imprisonment or restraint.” Minn. Stat. § 589.01 (2004). Habeas corpus is an appropriate remedy if the relief to which a petitioner may be entitled is immediate release. Kelsey v. State ex rel. McManus, 309 Minn. 560, 560-61, 244 N.W.2d 53, 54 (1976). A writ of habeas corpus is not generally available to “persons committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction.” Minn. Stat. § 589.01. The scope of relief is therefore limited to cases in which the petitioner contests the district court’s jurisdiction, challenges the legality of the sentence, or asserts constitutional or statutory violations in the parole-review process. See Kelsey v. State, 283 N.W.2d 892, 894-95 (Minn. 1979) (addressing scope of habeas corpus relief).

The petitioner has the burden of establishing the illegality of the detention. Loyd v. Fabian, 682 N.W.2d 688, 690 (Minn. App. 2004), review denied (Minn. Oct. 19, 2004). To obtain a writ of habeas corpus, a 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). An evidentiary hearing is not required unless the petition establishes the existence of a factual dispute. State ex rel. Roy v. Tahash, 277 Minn. 238, 244, 152 N.W.2d 301, 305 (1967); Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988). We defer to the district court’s factual determinations if they are reasonably supported by the evidence, but we independently review questions of law. State ex rel. Allen v. Fabian, 658 N.W.2d 913, 915 (Minn. App. 2003).

An inmate cannot be deprived of a liberty interest without due process of law. Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005). But a release date only qualifies as a liberty interest when the inmate establishes a “legitimate claim of entitlement to being released from prison on” the target release date. Id. When an inmate becomes eligible for parole, the decision to grant release is within the discretion of the commissioner of corrections. Minn. Stat. § 244.05, subds. 4, 5 (2004); see also State v. Schwartz, 628 N.W.2d 134, 138-41 (Minn. 2001) (recognizing and holding that commissioner’s authority over parole release is constitutional). The commissioner is not required to grant supervised release to someone serving a life sentence. SeeMinn. Stat. § 244.05, subd. 5 (stating that “commissioner of corrections may . . . give supervised release” to inmate serving life sentence); State v. Morse, 398 N.W.2d 673, 679 (Minn. App. 1987) (concluding that person serving life-sentence term does not have liberty interest in target release date), review denied (Minn. Feb. 18, 1987).

In determining whether an inmate serving a life sentence should be paroled, the commissioner must follow the procedures of Minn. R. 2940.1800 (2003) to ensure that the inmate receives due process. Three years before an inmate is first eligible for parole, he is entitled to a pre-parole hearing to establish a projected release date or future review date. Id., subp. 2. The rules require an advisory panel to assist the commissioner in considering an inmate’s case history. Id., subps. 1, 2. After deliberation, the commissioner must establish a projected release date or set a future review date. Id., subp. 5. The commissioner has the further obligation to communicate the decision to the inmate, in writing, within thirty days of the decision and explain the factors supporting the decision to deny parole, the projected date for the inmates next review hearing, and actions that may enable the inmate to obtain parole. Id.

The record demonstrates that the commissioner followed the required procedures in denying Wayne release on parole. Wayne received a pre-parole hearing in September 2000, was advised of the projected date for his next review, and received an explanation of actions he could take to facilitate his release from prison. The commissioner then conducted a review hearing in 2004 to consider his suitability for parole. After this hearing, the commissioner provided a written explanation for her decision to deny parole and notified Wayne of the projected date for his next review. These procedures conform to the law.

Wayne alleges error in the district court’s failure to explicitly address each of the seventeen issues that he raised in his petition. But allegations must be more than argumentative assertions without factual support. Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). Our review of the claims results in a determination that each claim either lacks a basis in fact or a basis in law.

Three of the claims rely on an unsupported allegation that Wayne’s eligibility date for parole was increased from seventeen years to thirty years. The record confirms that Wayne was considered eligible for parole after serving seventeen years and that he received a pre-parole hearing and a review hearing.

A number of the claims center on the commissioner’s directive that Wayne participate in a sex-offender treatment program. The commissioner has discretionary authority to implement and impose penalties for refusing to participate in a rehabilitative program. Minn. Stat. § 244.03 (2004). Similarly, the commissioner has discretion to exclude an inmate from participation in release programs and similar programs. We discern no constitutional violation in the commissioner’s exercise of discretionary authority relating to the sex-offender treatment program.

Two issues Wayne raises are challenges to his purported classification as a chemically dependent person and a predatory offender. Nothing in the record, however, supports his claim that the commissioner classified him either as a predatory offender or as chemically dependent. In any event, a custody-status classification implicates no liberty interest that would support a constitutional challenge. See State ex rel. McMaster v. Young, 476 N.W.2d 670, 674 (Minn. App. 1991) (holding that inmate has “no liberty interest in custody status classification”), review denied (Minn. Dec. 13, 1991).

Wayne specifically takes issue with the commissioner’s denial of parole based on his refusal to accept responsibility for the role he played in the crime of which he was convicted. He asserts that, by requiring him to admit guilt to secure parole, the commissioner violated his right against self-incrimination. But Wayne was already convicted of the offense for which the commissioner requires him to accept responsibility. Therefore his statements could not incriminate him in a future criminal proceeding. See Taylor v. Lieffort, 568 N.W.2d 456, 458 (Minn. App. 1997) (concluding that extension of inmate’s release date because of refusal to admit guilt does not violate right against self-incrimination).

Wayne also contests the failure of the commissioner to appoint a substitute ombudsman. We find no law that requires the participation of an ombudsman. Further, caselaw establishes that the district court must rely on its own analysis of allegations, not on an ombudsman’s investigation. See State ex rel. Crosby v. Wood, 265 N.W.2d 638, 639 (Minn. 1978) (stating that district court should not rely on ombudsman’s investigation and should instead make determination based on allegations in petition).

Wayne’s remaining issues relate to his inability to obtain access to prison records and an alleged violation of Blakely. Wayne does not establish, and the record does not support, a factual or legal basis for either of these claims.

Wayne’s petition for habeas corpus fails to establish a basis for release and does not present any factual disputes that require an evidentiary hearing. Because his assertions lack both factual and legal support, the district court did not err by summarily denying his petition.

An inmate who wishes to proceed IFP must file an affidavit showing his inability to pay fees and costs and provide the court with his most recent monthly statement indicating the balance in his inmate account. Minn. Stat. § 563.02, subd. 2 (2004). If an inmate has funds in his account, he must either pay the applicable fees or fifty percent of the balance in his inmate account, whichever is less. Id., subd. 2(d). The district court has broad discretion in allowing IFP proceedings, and we will not reverse its determination absent an abuse of discretion. Maddox v. Dep’t of Human Servs., 400 N.W.2d 136, 139 (Minn. App. 1987).

Wayne does not specify which of his three attempts to proceed IFP he is challenging, but we conclude that the district court did not err in its consideration of any of the three requests. The district court acted within its discretion by denying Wayne’s first request because it was not accompanied by the required affidavit and did not disclose his financial information. When Wayne filed his second request, no fees were pending, and the district court indicated that it would review the request when additional fees were incurred. Wayne did not incur any additional fees, and the district court did not abuse its discretion by denying Wayne IFP status retroactively.

The final request for IFP status was in support of Wayne’s appeal to this court. Wayne filed the necessary affidavit with the district court and also included his monthly statement. These documents indicate that Wayne had approximately $1,010 in his account. The district court determined that this sum was sufficient to pay the $500 appellate filing fee. Because the filing fee is slightly less than fifty percent of his available funds, the district court did not abuse its discretion by following the mandates of the statute and requiring Wayne to pay the filing fee.

III

Wayne’s final two challenges relate to procedural issues. First, he appeals the district court’s denial of his motion to exceed page limits that resulted in the exclusion of his memorandum of law, appendix, and addendum to the appendix. Although no rule explicitly restricts the number of pages a petitioner may file, the district court has discretion to exclude supplemental documents. Behm v. John Nuveen & Co., 555 N.W.2d 301, 305 (Minn. App. 1996) (concluding that court did not abuse its discretion when it tacitly denied motion to supplement record); see also Richardson v. Employers Mut. Cas. Co., 424 N.W.2d 317, 319-20 (Minn. App. 1988) (affirming district court’s refusal to enlarge record and refusing to consider excluded material on appeal), review denied (Minn. Aug. 24, 1988). A court acts within its discretion when it reasonably refuses supplemental filing after it closes the record. Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983).

Wayne did not submit the supplemental documents with his petition or with his motion to exceed page limits. The district court concluded that it would make its determination on Wayne’s petition and the response in the county attorney’s return. The district court had essentially closed the record before Wayne submitted his memorandum of law, appendix, and addendum to the appendix, and the court’s refusal to allow Wayne to supplement the record after it had closed does not represent an abuse of discretion.

Second, Wayne challenges the district court’s failure to consider his motion for production of documents. The documents that Wayne requested were lists of inmates who had received parole after their first hearing. Setting aside Wayne’s failure to observe the proper procedure for requesting the documents, he has not demonstrated that these documents exist in a retrievable form or that any information contained within them would be probative of any issue that he advances in his own parole request. The district court’s implicit denial of the request for documents was not an abuse of discretion.

Affirmed.