A05-2568

State of Minnesota,

ex rel. Mark Allen Wieland, petitioner,

Appellant,

vs.

David Crist, Warden Minnesota

Correctional Facility Lino Lakes, MN

Respondent.

Filed September 19, 2006

Affirmed

Worke, Judge

Anoka County District Court

File No. C9-05-7824

Greg J. Rebeau, 2000 Benson Avenue, St. Paul, MN 55116 (for appellant)

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

Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

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

WORKE, Judge

On appeal from the denial of a petition for a writ of habeas corpus challenging the denial of appellant’s parole for his 1978 life sentence for first-degree murder, appellant argues that the Commissioner of Corrections failed to follow applicable rules in denying his release, imposed impossible conditions on his release, and ignored expert-opinion testimony favoring his release. We affirm.

D E C I S I O N

Appellant Mark Allen Wieland filed a petition for a writ of habeas corpus after the Commissioner of Corrections continued his incarceration. 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 relief is available when a petitioner asserts constitutional or statutory violations in the parole-review process. See Kelsey v. State, 283 N.W.2d 892, 894-95 (Minn. 1979) (addressing the scope of habeas corpus relief). “We are to give great weight to the [district] court’s findings in considering a petition for a writ of habeas corpus and will uphold the findings if they are reasonably supported by the evidence.” Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998). 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).

Appellant argues that the district court erred in concluding that the commissioner complied with the requirements of Minn. Stat. § 243.05 (2004), and that his immediate release is mandated because he has served more than 25 years of his life sentence. Under Minn. Stat. § 243.05, subd. 1 (a)(2), the commissioner “may parole any person . . . serving a life sentence for committing murder before May 1, 1980, . . . [after the person has] served 25 years[.]” On October 7, 1978, a jury found appellant guilty of first-degree murder, attempted first-degree murder, and aggravated assault. Appellant was sentenced to life in prison. Appellant’s parole-eligibility date was December 5, 1994. 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, 142 (Minn. 2001) (holding that the commissioner’s authority over parole release is constitutional). The commissioner is not required to grant supervised release to someone serving a life sentence. See Minn. Stat. § 244.05, subd. 5(a) (stating that the commissioner may give supervised release to an inmate serving a life sentence); State v. Morse, 398 N.W.2d 673, 679 (Minn. App. 1987) (concluding that an inmate serving a life sentence does not have liberty interest in a target release date), review denied (Minn. Feb. 18, 1987). Thus, the commissioner has discretion to grant parole and appellant’s release was not mandated merely because he served 25 years.

Appellant also argues that the district court erred in concluding that the commissioner complied with the requirements of Minn. R. 2940.1800 (2003). In determining whether an inmate serving a life sentence should be paroled, the commissioner must follow the procedures of Minn. R. 2940.1800. The commissioner is required to convene an advisory panel to review an inmate 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. The panel considers 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. The commissioner must communicate the decision to the inmate, in writing, within thirty days of the decision, explain the factors supporting the decision, the projected date for the next review, and actions that may enable the inmate to obtain parole. Id., subp. 5.

The commissioner followed the procedures of Minn. R. 2940.1800. The commissioner convened an advisory panel. Appellant’s initial review occurred in December 1991, the required three years prior to appellant’s parole-eligibility date. The commissioner advised appellant that his incarceration would continue for two years and that appellant was expected to continue counseling and to start working with individuals from the outside. Appellant’s next review occurred in December 1993. Appellant was advised that his incarceration would continue for three years and that he was expected to continue therapy and to prepare written reports for the commissioner. Appellant was reviewed again in December 1996. Appellant was advised that his incarceration would continue for six years and that he was expected to continue therapy, work toward gaining insight into why he committed his offense, meet with the warden to clarify the commissioner’s expectations, and prepare written reports for the commissioner. Appellant’s next review occurred in November 2002. Appellant was advised that his incarceration would continue for three years and that he was to remain discipline free, and complete Lifer Groups 1 and 2, anger management, critical thinking, victim impact programming, and the restorative justice initiatives. The commissioner followed Minn. R. 2940.1800.

Appellant argues, however, that the commissioner should have granted him parole because he has done everything to comply with the mandates of both his sentence and the commissioner. Appellant contends that he is entitled to release because he has served 28 years without disciplinary infractions, has been successful in prison programs, and completed the requirements for a master electrician license. The record does not support appellant’s contention. Following his 1991 review, the commissioner advised appellant that the panel was interested in appellant’s progress in therapy with regard to his offense. Following his next two reviews, the commissioner advised appellant that he must demonstrate that he no longer posed a threat to public safety, and that he gain insight into his offense. Finally, following appellant’s 2002 review, the commissioner advised appellant that his continued resistance to self-improvement programs, which would have prepared him for release and reduced his risk to public safety, ensured his continued incarceration.

The commissioner’s conclusions are supported by psychological evaluations conducted prior to each of appellant’s reviews. In 1991, the evaluator concluded that appellant had a strong tendency toward social avoidance. In 1993, the evaluator could not predict appellant’s future risk because appellant could not explain why he acted so violently in committing his offense. In 1996, the evaluator concluded that appellant was increasingly defensive, rigid, and resistant to change. The evaluator expressed difficulty with the evaluation because appellant focused on blame and frustration with his circumstances and the system. The evaluator could not assess appellant’s risk for dangerousness because appellant’s passive-aggressive orientation handicapped the evaluation. In June 1999, appellant terminated counseling; at that time his counselor indicated that appellant was largely lacking insight as to why he committed his crime and that it was unlikely that he would develop more insight. Finally, a September 2002 report noted that appellant was not involved in any instructional programs and that he had not completed his Lifer Groups. The record supports the commissioner’s decision to continue appellant’s incarceration.

Appellant also argues that he was entitled to an evidentiary hearing because he raised a question of fact as to whether the commissioner abused her discretion. A writ of habeas corpus “does not issue as a matter of course. It [is] incumbent upon [the petitioner] to set forth in his petition sufficient facts to establish a prima facie case for his discharge.” State ex rel. Fife v. Tahash, 261 Minn. 270, 271, 111 N.W.2d 619, 620 (1961). And the allegations must be “more than argumentative assertions without factual support.” Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). An evidentiary hearing is not required unless the petition establishes the existence of a factual dispute. Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988). Appellant has failed to support, with any facts, his assertions that he is entitled to immediate release. The record supports the district court’s determination that the commissioner did not abuse her discretion in continuing appellant’s incarceration.

Finally, appellant argues that the commissioner abused her discretion by extending appellant’s incarceration for five years. This decision was rendered in January 2006, after the district court’s order denying appellant’s petition. This argument is outside the record and will not be considered. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below ”).

Affirmed.