Joseph Bergeron, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1999

Joseph Bergeron, petitioner,
Appellant,

vs.

Tom Roy, Commissioner of Corrections,
Respondent.

Filed July 10, 2017
Affirmed
Schellhas, Judge

Washington County District Court
File No. 82-CV-16-2701

Joseph Bergeron, Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Sche llhas, Judge; and
Klaphake, Judge.
*
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant asks us to reve rse the denial of his claims for habeas relief based on
respondent’s revocation of his supervised release. We affirm.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
FACTS
In September 1988, appellant Joseph Be rgeron burglarized a home and fatally
stabbed its resident. After a jury trial, the district court sentenced Bergeron for first-degree
murder while committing burglary and im posed a life sentence. The supreme court
affirmed Bergeron’s conviction. State v. Bergeron , 452 N.W.2d 918 (Minn. 1990).
Bergeron became eligible for supervised re lease after he “served a minimum term of
imprisonment of 17 years.” Minn. Stat. § 244.05, subd. 4 (1988).
In February 2011, respondent To m Roy, Commissioner of Corrections
(commissioner), placed Bergeron on intens ive supervised release with conditions,
including abstention from the use or possession of alcohol. In December 2011, Bergeron
admitted to violating a superv ised-release curfew condition and agreed to restructured
conditions, including abstention from the use or possession of alcohol. In February 2013,
the commissioner again restructured Bergeron’ s supervised-release conditions after he
admitted that he had violated his supervis ed-release approved-residence condition. His
restructured supervised-release conditions included abstention from the use or possession
of alcohol.
In October 2014, Bergeron was charged wi th two counts of misdemeanor driving
while intoxicated (DWI), misdemeanor fleei ng a peace officer, and gross misdemeanor
obstructing legal process.1 Bergeron immediately reported the pending criminal charges to

1 On June 4, 2015, Bergeron pleaded guilty to one count of misdemeanor DWI and was
sentenced to 90 days in the workhouse with credit for 90 days. The other charges were
dismissed.

3
his supervising agent, and he was arrested on a Minnesota Department of Corrections
(DOC) warrant on October 8 for alleged viol ations of the alcohol-abstention and law-
abiding conditions of his supervised releas e. The DOC initiated pr oceedings to revoke
Bergeron’s supervised release.
On October 23, 2014, a DOC hearings and release officer (hearing officer)
conducted a preliminary revoca tion hearing. Bergeron appear ed with counsel and denied
the alleged violations. After an evidentiary hearing, the hearing officer found that Bergeron
had violated the alcohol-abstention condition of his supervised release and that probable
cause existed to support the allegation that Bergeron had violated the law-abiding
condition. The DOC detained Bergeron pending a final revocation hearing.
In December 2014, Bergeron appeared by way of video conferencing before the
commissioner and an advisory panel for a final revocation hearing. Bergeron’s counsel was
physically present at the hearing. The reco rd contains little other information about the
hearing, after which the commissioner contin ued Bergeron’s “rev iew” for one year.
Bergeron appealed the commissioner’s decision, and the executive officer of hearings and
release (executive officer) denied Bergeron’s appeal.
In January 2016, the commissioner, with an advisory panel, conducted Bergeron’s
one-year review hearing, 2 and the commissioner continued Bergeron’s “review” for two
years. Bergeron petitioned for a writ of habeas corpus, making various claims in connection

2 Bergeron waived his right to appear.

4
with the revocation of his supervised release. The district court denied Bergeron’s claims
for habeas relief.
This appeal follows.
D E C I S I O N
“The writ of habeas corpus is a remedy available to a confined person to obtain
relief regarding the custody imposed, or the length of confinement in a given case.” State
v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015); see also Minn. Const. art. I, § 7 (“The
privilege of the writ of habeas corpus shal l not be suspended unle ss the public safety
requires it in case of rebelli on or invasion.”); Minn. Stat . § 589.01 (2014) (“A person
imprisoned or otherwise restrained of liberty . . . may apply for a writ of habeas corpus to
obtain relief from imprisonment or restraint.” ). Habeas relief is available to a petitioner
whose confinement involves “a jurisdictional defect or a constitutional violation.” Beaulieu
v. Minn. Dep’t of Human Servs. , 798 N.W.2d 542, 547–48 (Minn. App. 2011), aff’d on
other grounds, 825 N.W.2d 716 (Minn. 2013); see also State v. Clark, 270 Minn. 181, 183,
132 N.W.2d 811, 812 (1965) (no ting that “numerous decisions of both th[e Minnesota
Supreme] [C]ourt and the Supreme Court of the United States” indicate that “habeas corpus
may be used as a postconvicti on procedure to inquire into a lleged violations of freedoms
considered to be basic and fundamental”).
A habeas petitioner therefore may prevail on claims of restraint-related statutory or
regulatory violations if the claimed violations are of c onstitutional or jurisdictional
dimension. See Schnagl, 859 N.W.2d at 299, 302–03 (holding, in case involving allegedly
illegal extension of conditional-release term, that “judicial review of the Commissioner’s

5
administrative decision implementing the sentence imposed may be obtained by a petition
for a writ of habeas corpus”); State v. Schwartz, 628 N.W.2d 134, 141 n.3 (Minn. 2001)
(noting that judicial review of commissioner’s decision to revoke supervised or conditional
release is available through petition for writ of habeas corpus). A habeas petitioner bears
the burden of proving that his confinement is unlawful due to a jurisdictional defect or a
constitutional violation. See Bedell v. Roy, 853 N.W.2d 827, 829 (Minn. App. 2014) (“The
burden is on the petitioner to show the illega lity of his detention.” (quotation omitted)),
review denied (Minn. Oct. 28, 2014); Beaulieu, 798 N.W.2d at 548 (holding that “a habeas
petition must allege either a lack of jurisdiction or a violation of a constitutional right”).
An appeal may be taken from a final order on a petition for habeas corpus as in other
civil cases. Minn. Stat. § 589.29 (2014). “The district court’s findings in support of a denial
of a petition for a writ of habe as corpus are entitled to great weight and will be upheld if
reasonably supported by the evidence.” Maiers v. Roy, 847 N.W.2d 524, 527 (Minn. App.
2014) (quotation omitted), review denied (Minn. Aug. 19, 2014 ). “Questions of law
pertaining to a habeas petition are subject to de novo review.” Id.
Here, based on the revocation of his supervised release, 3 Bergeron appeals the
district court’s denial of his claims for habeas relief. We therefore must determine whether

3 The regulatory definition of “supervised re lease” excludes the release of an inmate
serving a life sentence. See Minn. R. 2940.0100, subp. 31 ( 2015) (“‘Supervised release’
means that portion of a determinate sentence served by an inmate in the community under
supervision and subject to prescribed rules . . . .”). The release of an inmate serving a life
sentence is referred to in th e regulations as “parole.” See Minn. R. 2940.0100, subp. 17
(2015) (“‘Parole’ means that portion of an inde terminate sentence served by an inmate in
the community under supervision and subject to prescribed rules.”). But the statutory
definition of “supervised release” includes the release of an inmate serving a life sentence.

6
Bergeron has established that the revocation of his supervised release is jurisdictionally
defective or violates his constitutional rights . If Bergeron has estab lished no more than
revocation in violation of applicable stat utory or regulatory mandates, without also
establishing a corollary constitutional violati on or jurisdiction defect, then we must
conclude that he is not entitled to habeas relief. See Beaulieu, 798 N.W.2d at 548 (holding
that “a habeas petition must allege either a lack of jurisdiction or a violation of a
constitutional right”).
“A person on supervised release remains in the state’s legal custody and is subject
to re-incarceration for breach of a condition of release.” Schwartz, 628 N.W.2d at 139; see
also Minn. Stat. § 244.05, subd. 3 (“If an inmate violates the conditions of the inmate’s
supervised release imposed by the commi ssioner, the commissioner may . . . revoke the
inmate’s supervised release and reimprison the inmate . . . .”). But the revocation of
supervised release is subject to constitutional, statutory, and regulatory limits.
One such limit is a parol ee’s due-process right to a two-stage revocation hearing
“structured to assure that the finding of a paro le violation will be ba sed on verified facts
and that the exercise of discretion will be informed by an accura te knowledge of the
parolee’s behavior.”4 Morrissey v. Brewer, 408 U.S. 471, 484–85, 487–89, 92 S. Ct. 2593,

See Minn. Stat. §§ 244.01, subd. 7 (“‘Supervised release’ means the release of an inmate
pursuant to section 244.05.”), .05 (authori zing commissioner to release inmates from
prison, including most inmates serving life se ntences, subject to “conditions of . . .
supervised release imposed by the commissioner”) (2014). Throughout this opinion, we
use the statutory definition of “supervised release,” not the regulatory definition.
4 “Supervised release is the current term for the release practice formally known as parole.”
Schwartz, 628 N.W.2d at 139.

7
2602–03 (1972); see Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761 (1973)
(stating that “ Morrissey mandated preliminary and final re vocation hearings” for parole
revocation). “At the preliminary hearing, a . . . parolee is entitled to notice of the alleged
violations of . . . parole, an opportunity to appear and to present evidence in his own behalf,
a conditional right to confront adverse witn esses, an independent decisionmaker, and a
written report of the hearing.” Gagnon, 411 U.S. at 786, 92 S. Ct. at 1761. The “minimum
requirements of due process” at the final hearing include:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parole e of evidence against him;
(c) opportunity to be heard in person and to present witnesses
and documentary evidence; (d) the right to confront and cross-
examine adverse witnesses (u nless the hearing officer
specifically finds good cause for not allowing confrontation);
(e) a neutral and detached hear ing body such as a traditional
parole board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole.

Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604 (quotation marks omitted). The final hearing
also must occur “within a reasonable time af ter the parolee is taken into custody.” Id. at
488, 92 S. Ct. at 2603–04.
Minnesota statute accordingly mandates th at “[p]rocedures for the revocation of
[supervised or conditional] release shall provi de due process of law for the inmate” and
directs the commissioner to “adopt by rule standards and procedures for the revocation of
supervised or conditional release.” Minn. Stat . § 244.05, subd. 2. In response to the
statutory directive, Minnesota regulations set forth standards and procedures for the
revocation of supervised release. Minn. R. 2940.3500–.4500 (2015).

8
Those regulatory standards and procedures reflect some—but not all—of the due-
process mandates discussed above. Compare Minn. R. 2940.3500, subp. 1 (“Separate
probable cause hearings may be held if circumstances warrant.”), with Gagnon, 411 U.S.
at 786, 93 S. Ct. at 1761 (stating that “Morrissey mandated preliminary and final revocation
hearings” for parole revocation). The standa rds and procedures sometimes exceed in
specificity and rigor the due-process limits identified by the U.S. Supreme Court. Compare
Minn. R. 2940.3500, subp. 2 (“All revocation or separate probable cause hearings must be
held within 12 working days of the releasee’s availability to Department of Corrections.”),
with Morrissey, 408 U.S. at 488, 92 S. Ct. at 2603–04 (stating that final hearing must occur
“within a reasonable time after the parolee is ta ken into custody” and remarking that “[a]
lapse of two months . . . would not appear to be unreasonable”).
Another limit on the revocation of supervised release is that the commissioner must
“specify the period of revocation for each violation of [supervised or conditional] release.”
Minn. Stat. § 244.05, subd. 2. Minnesota regulation echoes that statutory limit by providing
that “[o]ffenders who have violated the conditions of parole or supervised release and who
have been returned to institutio nal status shall be assigned a release date and a term of
reimprisonment.” Minn. R. 2940.3800.
The period of revocation, i.e., term of reimprisonment, is also limited. See Minn.
Stat. § 244.05, subd. 3 (“If an inmate violates the conditions of the inmate’s supervised
release imposed by the commissioner, the co mmissioner may . . . revoke the inmate’s
supervised release and reimprison the inmate for the appropriate amount of time .”
(emphasis added)). To begin, “[t]he period of time for which a supervised release may be

9
revoked may not exceed the period of tim e remaining in the inmate’s sentence.” Id.
Minnesota regulation allows for reimprisonment
A. up to six months inclusive of any time spent in jail in
connection with the violation, fo r violations of conditions of
parole or supervised release other than convictions of or
involvement in criminal activity;
B. up to six months for convictions of misdemeanors or
gross misdemeanors;
C. six months to expiration of sentence for conviction
of a felony; and
D. depending on the time remaining to be served on the
sentence, the type of violation, and the needs of the offender,
up to expiration of the sentence may be assigned as the term of
reimprisonment if there is a finding of risk to the public or if
repeated violations of the cond itions of release occur and the
releasee is determined to be unamenable to supervision by the
executive officer of hearings and release.

Minn. R. 2940.3800. Minnesota statute adds a further restriction on the term of
reimprisonment:
(a) If the commissioner revoke s the supervised release
of a person whose release on the current offense has not
previously been revoked, th e commissioner may order the
person to be incarcerated for no more than 90 days or until the
expiration of the person’s sentence, whichever is less.
(b) This section does not apply to offenders on
supervised release for [crimina l sexual conduct or criminal
sexual predatory conduct].
(c) The commissioner may order a person described in
this section to be incarcerated for more than 90 days if the
commissioner determines that substantial and compelling
reasons exist to believe that th e longer incarceration period is
necessary to protect the public.

10
Minn. Stat. § 244.30 (2014).5
In this case, Bergeron claims entitlement to habeas relief on the ground that the
revocation of his supervised release violates many of the above-identified constitutional,
statutory, and regulatory limits. We distill and reorder Bergeron’s pro se habeas claims as
follows: (1) the timing of Bergeron’s prelimin ary revocation hearing violated Minn. R.
2940.3500, subp. 2; (2) the timing of Berger on’s final revocation hearing violated Minn.
R. 2940.3500, subp. 2, and .4200, subp. D; (3) the decision to revoke Bergeron’s supervised
release was not made by a neutral and detached hearing body, in viol ation of federal due
process; (4) the commissioner failed to spec ify the period of revocation of Bergeron’s
supervised release, in violation of Minn. Stat. § 244.05, subd. 2; (5) the commissioner
failed to assign Bergeron a release date and a term of reimprisonment, in violation of Minn.
R. 2940.3800; (6) the period of revocation of Bergeron’s supervised release exceeds 90
days, in violation of Minn. St at. § 244.30(a); and (7) Berger on’s term of reimprisonment
exceeds six months, in violation of Minn. R. 2940.3800, subp. A.
The commissioner responds that Minn. Stat. §§ 244.05, subd. 2, .30, and Minn. R.
2940.3500–.4500 do not apply to the revoca tion of Bergeron’s supervised release,
reasoning in part that the commissioner ha s “the sole authority to personally make
decisions regarding whether an offender serving a life sentence is appropriate to release to
the community or should remain in prison.” As to Minn. Stat. § 244.30, the commissioner

5 Section 244.30 “applies to persons whose supervised rele ase is revoked on or after”
May 16, 2009, regardless of when they were sentenced or released. 2009 Minn. Laws ch.
83, art. 3, § 15, at 1073–74, 1078.

11
argues in the alternative that Minn. Stat. § 244.30(c) permits Bergeron’s incarceration for
more than 90 days because “[t]he record de monstrates that [substa ntial and compelling]
reasons exist.” Finally, the commissioner ar gues generally that the revocation of
Bergeron’s supervised release meets the requirements of federal due process.
The commissioner persuaded the district court that his discretion to revoke the
supervised release of an offender with a life sentence is virtually unfettered by the above-
identified statutory and regulatory limits. But we are not persuaded.
The commissioner asserts that “Minn. R. 2940.0400 explicitly provides that the
rules in Minn. R. ch. 2940 regarding revocation of pa role do not apply to the
Commissioner’s supervision of inmates serving life sentences.” That regulation delegates
to the executive officer the commissioner’s authority, “under the guidelines prescribed in
this chapter,” to, among other things, “revoke parole, supervised release, and work release
status” of inmates, “with the exception of those inmates under life sentences.” Minn. R.
2940.0400 (2015). Minnesota Rule 2940.0400 therefore reserves for the commissioner the
sole authority to revoke the s upervised release of an offende r with a life sentence, but it
does not excuse the commissione r from compliance with Minn . R. 2940.3500–.4500 in
exercising that authority, “explicitly” or otherwise. Indeed, the commissioner is required
to “adopt by rule standards an d procedures for the revocation of supervised . . . release,”
Minn. Stat. § 244.05, subd. 2, which is define d to include the release of inmates serving
life sentences, Minn. Stat. §§ 244.01, subd. 7, .05, subd. 5.
Similarly, the commissioner insists wit hout citation to authority that Minnesota
Statutes section 244.30 “does not apply to offenders serving life sentences, who are subject

12
to the Commissioner’s discretionary parole au thority.” That statute provides, “If the
commissioner revokes the supervised releas e of a person whose release on the current
offense has not previously been revoked, the commissioner may order the person to be
incarcerated for no more than 90 days or until the expiration of the person’s sentence,
whichever is less.” Minn. Stat. § 244.30(a). Again, “supervised release” is statutorily
defined to include the release of inmates se rving life sentences. Minn. Stat. §§ 244.01,
subd. 7, .05, subd. 5. And while offenders on supervised release for criminal sexual conduct
or criminal sexual predatory conduct are spec ifically excepted from the statute’s reach,
Minn. Stat. § 244.30(b), no mention is made of offenders on supervised release from life
sentences.
In sum, we see little support for the commissioner’s arguments that the above-
discussed statutes and regulations do not li mit his discretion as to the revocation of
supervised release from a life sentence. Ne ither can we validate, on the record and
arguments now before us, the commissioner’s apparent practice of treating a life-sentence
offender whose supervised release is revok ed as though he neve r received supervised
release at all. See Minn. R. 2940.1800, subps. 2 (providing that an inmate serving a life
sentence is entitled to a “review . . . three years prior to the in mate’s parole or supervised
release eligibility dates”), 5 (requiring the commi ssioner to “establish a projected release
date . . . or continue the case to a future review date” after any review hearing) (2015).
But Bergeron’s brief is void of any argument that the alleged statutory violations
result in a jurisdictional defect or a constituti onal violation. As to the alleged regulatory
violations, Bergeron asserts that “the Minnesota legislature has explicitly stated the rules

13
are Due Process for Revocation,” citing Minn. Stat. § 244.05, subd. 2, and arguing that
“[a]ny violation of the rules is then a viol ation of Due Process.” Bergeron is incorrect.
While the cited statute directs the commissioner to “adopt by rule standards and procedures
for the revocation of supervis ed or conditional release” and acknowledges that those
procedures and standards must “provide due process of law for the inmate,” Minn. Stat.
§ 244.05, subd. 2, the statute does not, and indeed cannot, equate the violation of an adopted
procedural rule with the denial of due process. Cf. Swipies v. Kofka, 419 F.3d 709, 717 (8th
Cir. 2005) (“Violation of a state statutory pr ovision necessarily establishes a procedural
due process violation only if th e statutory provision requires the same process as federal
law, and no more.”).
We conclude that Bergeron has failed to es tablish that any of the alleged statutory
and regulatory violations rises to the level of a jurisdictional defect or a constitutional
violation. See Bedell, 853 N.W.2d at 829 (“ The burden is on the petitioner to show the
illegality of his detention.” (quotation omitted)); Beaulieu, 798 N.W.2d at 548 (holding
that “a habeas petition must allege either a lack of jurisdiction or a violation of a
constitutional right”). We therefore affirm the dist rict court’s denial of habeas claims (1),
(2), (4), (5), (6), and (7) on that ground. See State v. Fellegy, 819 N.W.2d 700, 707 (Minn.
App. 2012) (“We may affirm the district court on any ground, including one not relied on
by the district court.”), review denied (Minn. Oct. 16, 2012).
Claim (3), the only remaining habeas claim, alleges violations of Bergeron’s federal
due-process right to revocation by a neutral and detached hearing body. According to
Bergeron, because the commissioner issued the DOC warrant for his arrest, the

14
commissioner was “Constitutionally . . . barre d” from making the decision whether to
revoke Bergeron’s supervised release. Berg eron also asserts that the final revocation
hearing was a “sham,” pointing to a statem ent allegedly made by the commissioner in
February 2013 as evidence that the commissioner’s “mind [was] made up already” prior to
the final hearing. Lastly, Bergeron argues th at the commissioner must have been biased,
because he revoked Bergeron’s supervised release despite Bergeron’s attorney’s advocacy,
Bergeron’s supervising agent’s recommendations, “the many mitigating factors involved,
. . . and the relatively minor nature of the violation.”
The record does not indicate who issued the DOC warrant, a lthough Bergeron is
correct that only the commissioner had lega l authority to issue such a warrant. See Minn.
R. 2940.0400 (delegating to executive officer commi ssioner’s authority to, among other
things, “issue warrants for the apprehension of parolees, supervised releasees, and work
releasees,” but “with the exception of those in mates under life sentences”). In any event,
the issuer of a DOC warrant for a releasee’s arrest is not thereby recommending revocation
of his release; in fact, the issuer does not ne ed so much as probable cause to believe that
the releasee has violated th e conditions of his release. See Minn. R. 2940.3000 (2015)
(providing that “[w]arrants may be issued for the apprehension and detention of parolees,
supervised releasees, and wo rk releasees who are . . . alleged to have violated the
conditions of their release” (emphasis added)). We conclude that, even if the commissioner
issued the DOC warrant for Bergeron’s arrest, the commissioner was not thereby
constitutionally disqualified from later partic ipation in the revocation decision-making
process. See Morrissey , 408 U.S. at 485–86, 92 S. Ct . at 2602–03 (characterizing as

15
sufficiently “independent” to satisfy due process a decision-maker “such as a parole officer
other than the one who has made the report of parole violations or has recommended
revocation”).
As to the commissioner’s alleged statement in February 2013, th e record contains
no evidence of such a statemen t. And the district court f ound that neither the alleged
statement nor the commissioner’s ultimate deci sion to revoke Bergeron’s supervised
release showed that the commissioner was bi ased against Bergeron, noting that “[t]he
Commissioner was not required to follow the [supervising] agent’s recommendations.”
That finding is entitled to “great weight,” Maiers, 847 N.W.2d at 527 (quotation omitted),
and we uphold it. Accordingly, we conclude that Bergeron did not meet his burden to prove
a violation of his due-process right to revo cation by a neutral and detached hearing body.
See Bedell, 853 N.W.2d at 829 (“The burden is on the petitioner to show the illegality of
his detention.” (quotation omitted)).
Affirmed.