Hubert H. Humphrey, III, Attorney General, Kathy Meade Hebert, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2127 (for Respondent)

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for Respondent)

Considered and decided by Toussaint, Presiding Judge, Peterson, Judge, and Willis, Judge.

Wayne P. Clements appeals from the trial court order denying his petition for a writ of habeas corpus in which he sought discharge from his indeterminate commitment as a psychopathic personality. We affirm.

FACTS

Appellant's probation officer petitioned for his commitment as a psychopathic personality. The committing court heard conflicting recommendations from mental health experts as to whether appellant met the standards for commitment as a psychopathic personality. The trial court committed appellant as a psychopathic personality, and this court affirmed. In re Clements, No. CX-88-1058 (Minn. App. July 26, 1988). At the review hearing, the court again heard conflicting opinions. It ordered appellant's indeterminate commitment as a psychopathic personality. He appealed, this court affirmed, and the supreme court denied review. In re Clements, 440 N.W.2d 133 (Minn. App. 1989), review denied (Minn. June 21, 1989).

Clements petitioned for a writ of habeas corpus to obtain his discharge. He now appeals the decision by the trial court denying the petition.

D E C I S I O N

Findings of a trial court considering a petition for habeas are entitled to great weight. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). Issues of law are reviewed de novo. Id.

A person who is restrained of liberty may apply for a writ of habeas corpus. Minn. Stat. § 589.01 (1994). Nothing in the commitment chapter shall be construed to abridge the right of any person to a writ of habeas corpus. Minn. Stat. § 253B.23, subd. 5 (1994).

Although a person committed as mentally ill may test the legality of confinement by habeas corpus, the scope of inquiry is limited. State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964). Possible grounds include that the court acted without jurisdiction over subject matter or person, that the law pursuant to which the proceedings were taken is unconstitutional and therefore void, and that detention violates the person's constitutional rights, particularly due process. Id., 128 N.W.2d at 714. Habeas corpus may not be used as a substitute for a writ of error or appeal, or as a cover for a collateral attack on a judgment. State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).

The commitment in this case occurred pursuant to Minn. Stat. § 526.09, subd. 1 (1988) (definition of a psychopathic personality). This statutory definition was narrowed to include only

those persons who, by a habitual course of misconduct in sexual matters, have evidenced an utter lack of power to control their sexual impulses and who, as a result, are likely to attack or otherwise inflict injury, loss, pain or other evil on the objects of their uncontrolled and uncontrollable desire.

State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940).

Appellant raised challenges based on Pearson in his appeals from his initial and indeterminate commitments. These arguments were considered and rejected. In re Clements, No. CX-88-1058 (Minn. App. July 26, 1988) (initial commitment); In re Clements, 440 N.W.2d 133 (Minn. App. 1989) (indeterminate commitment), review denied (Minn. June 21, 1989). Appellant may not raise them again under the guise of a petition for a writ of habeas, which may not be used as a substitute for a writ of error or appeal, or as a cover for a collateral attack. Rigg, 255 Minn. at 234, 96 N.W.2d at 257. This court will not address arguments in a habeas appeal that were already addressed in appeals from the commitment. See Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978) (holding petitioner who failed to appeal from earlier order discharging writ of habeas corpus may not cure procedural defect by second habeas petition in which same issues were litigated).

Affirmed.