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Brian Lee Wilbur, Petitioner v. Tom Roy

April 8, 2013

BRIAN LEE WILBUR, PETITIONER, APPELLANT,
v.
TOM ROY, COMMISSIONER OF CORRECTIONS, ET AL., RESPONDENTS.



Carlton County District Court File No. 09-CV-12-853

The opinion of the court was delivered by: Schellhas, Judge

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

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

UNPUBLISHED OPINION

SCHELLHAS, Judge

Appellant challenges the district court's denial of his petition for a writ of habeas corpus, arguing that respondents violated his constitutional rights by imposing 360 days' extended incarceration as a disciplinary penalty. We affirm.

FACTS

A jury found appellant Brian Wilbur guilty of second-degree criminal sexual conduct, fourth-degree criminal sexual conduct, and two counts of first-degree burglary in September 1997. The district court sentenced Wilbur to 360 months' imprisonment. Wilbur sought post-conviction relief, and the district court granted Wilbur relief, resentencing him to 300 months' imprisonment in June 2001.

A Minnesota Department of Corrections (DOC) program-review team directed Wilbur to comply with a sex-offender assessment and complete the assessment recommendations. The assessment identified a "need for a treatment intervention," and, in October 2009, Wilbur entered the preliminary stage of treatment in the Minnesota Sex Offender Program (MSOP). As part of his treatment participation, Wilbur acknowledged in writing that he was "subject to all expectations and rules of the Program, including the penalties of program failure and/or self-termination," and that the penalty for a first offense of "[f]ail[ing] to comply with the treatment directive may result in additional incarceration" of "360 days Extended Incarceration" (EI). On July 12, 2010, Wilbur signed a "PARTICIPANT INITIATED TERMINATION," acknowledging that he "initiated this procedure and indeed want[ed] to sign out of treatment." On July 13, Wilbur, in writing, waived his right "TO ALL PROCEDURAL RIGHTS INCLUDING APPEAL" and pleaded guilty, admitting that he violated Offender Discipline Regulation "510 MANDATED TREATMENT FAILURE/REFUSAL," and respondent Commissioner of Minnesota Department of Corrections imposed 360 days' EI as a penalty. Wilbur appealed the EI penalty, and the commissioner denied his appeal.

In April 2012, Wilbur petitioned the district court for a writ of habeas corpus, arguing that the commissioner violated Minn. Stat. § 244.04, subd. 2 (2012)*fn1 , when he imposed EI "beyond the maximum term allowed" and rejected Wilbur's "[a]pplication for restoration of [his] good time," and that Minn. Stat. § 244.03 (2012) is an ex post facto law because it imposes sanctions on inmates who refuse to participate in rehabilitative programs. The district court denied Wilbur's petition.

This appeal from the denial of a writ of habeas corpus follows.

DECISION

A writ of habeas corpus is a statutory civil remedy available "to obtain relief from [unlawful] imprisonment or restraint." Minn. Stat. § 589.01 (2012). A writ of habeas corpus is not available to "persons committed or detained by virtue of the final judgment of a competent tribunal of civil or criminal jurisdiction." Id. The petitioner shoulders the burden to demonstrate the illegality of the detention. Case v. Pung, 413 N.W.2d 261, 262 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). This court gives "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." Roth v. Comm'r of Corr., 759 N.W.2d 224, 227 (Minn. App. 2008) (quotation omitted).Imposition of EI and Loss of Good Time Wilbur argues that the commissioner violated Minn. Stat. § 244.04, subd. 2, when he imposed EI "beyond the maximum term allowed" and rejected Wilbur's "[a]pplication to restore his lost good time." Section 244.04, subdivision 2, provides that "the commissioner shall promulgate rules specifying disciplinary offenses which may result in the loss of good time and the amount of good time which may be lost as a result of each disciplinary offense, including provision for restoration of good time." Wilbur claims that the commissioner violated his right to ...


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