This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-405

 

William Demone Walker, petitioner,

Appellant,

 

vs.

 

Joan Fabian,

Commissioner of the Minnesota Department of Corrections,

Respondent.

 

Filed March 20, 2007

Affirmed

Kalitowski, Judge

 

Chisago County District Court

File No. 13-CV-05-905

 

William Demone Walker, OID #186755, 7525 Fourth Avenue, Lino Lakes, MN 55014 (pro se appellant)

 

Brent D. Wartner, Director, Policy and Legal Services, 1450 Energy Park Drive, Suite 200, St. Paul, MN 55108-5219 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Ross, Judge; and Collins, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant William Demone Walker challenges the district court order denying his petition for writ of habeas corpus, contending that (1) the district court erred by denying his request for an evidentiary hearing; and (2) his due process rights were violated at the hearing concerning revocation of his supervised release.  We affirm.

D E C I S I O N

“This court gives great weight to the district court’s findings in considering a petition for habeas corpus and will uphold those findings if they are reasonably supported by the evidence.”  State ex rel. Allen v. Fabian, 658 N.W.2d 913, 915 (Minn. App. 2003).  We review questions of law de novo.  Id.

A person whose supervised release has been revoked may seek review of the revocation by petitioning the district court for a writ of habeas corpus.  See State ex rel. Fox v. Young, 293 Minn. 527, 528, 199 N.W.2d 156, 156 (1972).  A writ of habeas corpus is a statutory 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, 244 N.W.2d 53, 54 (1976).

            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).  The allegations in the petition must be more than argumentative assertions without factual support.  Id.

I.

Appellant argues that the district court erred in denying him an evidentiary hearing.  We disagree.  A petitioner is entitled to an evidentiary hearing only when the petition establishes the existence of a material factual dispute not previously resolved.  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).  In his petition, appellant requested an evidentiary hearing, arguing that a factual dispute exists.  But appellant failed to identify any facts that were in dispute.  Thus, we conclude that the district court did not err in denying appellant’s request for an evidentiary hearing.

II.

Following a revocation hearing, appellant’s supervised release was revoked based on the finding of the Hearings and Release Unit (HRU) that appellant conspired with other prisoners to smuggle drugs into a correctional facility.  Appellant argues that he did not receive the minimal requirements of due process at his revocation hearing.  We disagree.

An inmate shall not be deprived of a liberty interest without appropriate due process.  See Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005).  Under Minnesota law, the commissioner “shall adopt by rule standards and procedures” for granting and revoking supervised release when the offender violates the conditions of release.  See generally Minn. Stat. § 244.05, subds. 2, 3 (2004); Minn. Stat. § 243.05, subds. 1, 2 (2004); Minn. R. ch. 2940.  “Procedures for the revocation of supervised release shall provide due process of law for the inmate.”  Minn. Stat. § 244.05, subd. 2.

Appellant argues that his due process rights were violated because the HRU improperly admitted transcripts of telephone calls between appellant and prisoners that were taped by the Department of Corrections.  Appellant contends these transcripts constituted inadmissible hearsay.  We disagree.  Assuming but not deciding that these transcripts constitute hearsay, they may be admitted in a revocation proceeding if they have some substantial indicia of reliability, even if the same hearsay would not be admitted in a criminal proceeding.  Belk v. Purkett, 15 F.3d 803, 808 (8th Cir. 1994).  The revocation process “should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”  Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972)).  And records kept in the regular course of business fall under an exception to the hearsay rule and may be properly admitted.  Minn. R. Evid. 803(6). 

            Here, the district court determined that the records of the monitored calls were admissible under the business-records hearsay exception:  “Telephone records are kept in the regular course of business which falls under an exception to the hearsay rule.  These records create further substantial indicia of reliability as to who the [appellant] was calling and the smuggling allegation.  Thus, there is no evidence that the hearsay was improperly admitted.”  We agree.

            Moreover, the record demonstrates that appellant’s violation was properly found based on a preponderance of the evidence which included appellant’s cell phone records, the transcription of the monitored calls, and a corrections officer’s admission that he brought drugs obtained from appellant into the correctional facility.  We reject appellant’s argument that because hearsay was admitted, he was denied the right to call witnesses.  In a revocation proceeding, demonstrably reliable hearsay evidence does not have to be subject to cross-examination or confrontation.  See, e.g., United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978).

            In addition, the record does not indicate that appellant made a request to call witnesses with an offer of proof to the HRU regarding what the witnesses would testify to.  We can only consider matters on the record before us.  State v. Brown, 597 N.W.2d 299, 305 (Minn. App. 1999), review denied (Minn. Sept. 14, 1999).  “The record on appeal shall consist of the papers filed in the trial court, the offered exhibits, and the transcript of the proceedings, if any.” Id.(quoting Minn. R. Crim. P. 28.02, subd. 8).  Appellant has failed to meet his burden to present evidence that he was denied the opportunity to call witnesses.

            Furthermore, as the district court correctly noted, even if the telephone calls had been improperly admitted, the HRU still had the power to revoke appellant’s release status.  “In order to justify a revocation order all that is required is enough evidence, within a sound judicial discretion, to satisfy the district judge that the conduct of the probationer has not met the conditions of probation.”  United States v. Strada, 503 F.2d 1081, 1085 (8th Cir. 1974) (quotation omitted).  Under Minnesota law, the commissioner may revoke an offender’s supervised release:

If an inmate violates the conditions of the inmate’s supervised release imposed by the commissioner, the commissioner may: . . . revoke the inmate’s supervised release and reimprison the inmate for the appropriate period of time.

 

Minn. Stat. § 244.05, subd. 3.  Here, appellant admitted to owning a motor vehicle without obtaining the permission of his supervising agent in violation of a special condition of his release.  Thus, even without the hearsay evidence, the HRU could have revoked appellant’s release status based on appellant’s violation of the car-ownership prohibition. 

Appellant also contends that the HRU failed to follow its own guidelines, arguing that his due process rights were violated because he was not formally charged with a crime.  But it is not necessary that appellant be charged with a crime in order to revoke his release.  Standard Condition #7 states that offenders must not be involved in “any activity defined as criminal.”  Any such involvement “constitutes a violation of release and may result in revocation.”  The condition does not require a formal charge or conviction.  Finally, we have reviewed appellant’s other arguments and determined that they are without merit.

Affirmed.