Michael John Husten, 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This opinion will be unpublished and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
A17-0775

Michael John Husten, petitioner,
Appellant,

vs.

Tom Roy,
Commissioner of Corrections,
Respondent.

Filed November 27, 2017
Affirmed
Klaphake, Judge*

Washington County District Court
File No. 82-CV-16-5494

Michael John Husten, Stillwater, Minnesota (pro se appellant)

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

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Klaphake,
Judge.

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

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U N P U B L I S H E D O P I N I O N
KLAPHAKE, Judge
Appellant Michael John Husten challenges the district court’s denial of his petition
for a writ of habeas corpus. Because there is no evidence in the record that respondent the
Minnesota Department of Corrections (DOC) failed to properly administer Husten’s
sentence or violated Husten’s constitutional rights, we affirm.
D E C I S I O N
Avenue for Relief
The state constitution guarantees individuals the right of filing a writ of habeas
corpus. Minn. Const. art. I, § 7. The legislature has codified the right, permitting
individuals who are “imprisoned or otherwise restrained of liberty” to seek “relief fr om
imprisonment or restraint” by applying for a writ of habeas corpus. Minn. Stat. § 589.01
(2016). A writ of habeas corpus also may be used to challenge conditions of confinement
or to raise claims involving fundamental constitutional rights or sign ificant restraints on
liberty. State ex rel. Guth v. Fabian, 716 N.W.2d 23, 26 -27 (Minn. App. 2006), review
denied (Minn. Aug. 15, 2006). We review the district court’s findings on a denial of a
habeas petition to determine if they are reasonably supported b y evidence, but we r eview
questions of law de novo. Id. at 26. The petitioner bears the burden of proving unlawful
detention. Bedell v. Roy, 853 N.W.2d 827, 829 (Minn. App. 2014), review denied (Minn.
Oct. 28, 2014).
The grounds for a petition for habeas corpus are limited to constitutional issues and
jurisdictional challenges. Id. In his petition, Husten challenged the DOC’s administration
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of his 20-year indeterminate sentence.1 Despite the DOC’s assertion otherwise, a habeas
corpus petitioner may obtain judicial review of the DOC’s implementation of a sentence.
See State v. Schnagl, 859 N.W.2d 297, 303 (Minn. 2015).
Due Process Violation

Husten’s petition for a writ of habeas corpus contained a broad allegation that the
DOC violated Husten’s due process rights. In 2012, Husten was convicted of second -
degree murder for an offense that took place in 1975. Accordingly, Husten was sentenced
to an indeterminate sentence of up to 20 years under Minn. Stat. § 609.19 (1974). Although
Husten has not provided support for this claim, Husten alleges that DOC documents show
that the DOC is applying current, determinate sentencing practices to his sentence, with a
mandatory two-thirds of his sentence served in custody and the remaining one-third served
in the community. See Minn. Stat. § 244.101, subd. 1 (201 0). Husten argues that the
correct statutory authority for determining parole for his indeterminate sentence is Minn.
Stat. § 609.12 (1974), which states that an offender may be paroled “at any time.” Husten
alleges that the DOC’s “incorrect” calculation of his incarceration resulted in a denial of
his right to due process.
When engaging in a due process analysis, this cour t conducts a two -step inquiry.
Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005). “First, the court must determine

1 Husten’s appellate brief and attachments included additional claims for relief and
materials that were not in the district court record. We decline to consider any issues not
considered by the district court, nor materials not part of the district court record. See
Thiele v. Stich , 425 N.W.2d 580, 582 -83 (Minn. 1988) ; see also Minn. R. Civ. App. P .
110.01.
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whether the complainant has a liberty or property interest with which the state has
interfered. Second, if the court finds a deprivation of such an interest, it must determine
whether the procedures attendant upon that deprivation were constitutionally sufficient.”
Id. (citation omitted).
Husten has failed to show that he has a constitutionally protected liberty interest in
being released from prison before the full expiration of his sentence. A liberty interest may
derive from the federal constitution itself or from a state law or policy. Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 2393 (2005). “There is no constitutional or inherent
right of a convicted person to be co nditionally released before the expiration of a valid
sentence.” Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 7, 99 S.
Ct. 2100, 210 4 (1979). Accordingly, the federal constitution does not allow Husten a
protected liberty interest in a particular release date.
A liberty interest based on state law must “arise[] from a legitimate claim of
entitlement rather than simply an abstract need or desire or a unilateral expectation .”
Carillo, 701 N.W.2d at 768. Minnesota Statute Section 609.12 (1974) provide s that a
person sentenced for an indeterminate sentence may be paroled at any time, when “in the
judgment of the M innesota corrections authority … would be most conducive to his
rehabilitation and would be in the public interest.” However, “the concept of
constitutionally protected liberty… does not include statutorily created relief that is subject
to the unfettered discretion of a governmental authority.” Nativi-Gomez v. Ashcroft, 344
F.3d 805, 809 (8th Cir. 2003).
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Under Minn. Stat. § 244.08, subd. 1 (2016), the commissioner has full discretion to make
decisions for inmates with indeterminate sentences. The statute provides that the
commissioner retains all powers and duties: to determine parole for inmates sentenced on
or before April 30, 1980. Id. As the district court noted, Husten may seek parole through
procedures established by the DOC, but has not yet done so. Because Husten has failed to
show a protected liberty interest under either the federal constitution or state law, he cannot
establish a prima facie case that his due process rights have been violated.
Ex Post Facto Clause
“Both the United States and Minnesota Constitutions prohibit the en actment of ex
post facto laws.” State v. Manning, 532 N.W.2d 244, 247 (Minn. App. 1995), review
denied (Minn. July 20, 1995). “The ex post facto prohibition forbids the Congress and the
States [from] enact[ing] any law which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment to that then
prescribed.” Weaver v. Graham , 450 U.S. 24, 28, 101 S. Ct. 960, 964 (1981) (quotation
omitted) .
Husten argues that his sentence is “being formally and unconstitutionally applied
and computed, in violation of the ex post facto doctrine.” Husten believes that the DOC’s
“incorrect” calculation of his incarceration has resulted in a retroactive enhancement of his
punishment. It is undisputed that Husten was properly sentenced to a 20 -year
indeterminate sentence. This sentence was authorized under the statute that applied to him
when he committed the second -degree murder in 1975 . Minn. Stat § 609.19. Husten
argues that under Minn. Stat. § 609.12, he may be paroled “at any time.” But that statute
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grants the commissioner full authority to make parole determinations. Id., see also Minn.
Stat. § 243.05, subd. 1(g) (201 0). The DOC is not imposing a punishment for an act that
was not punishable when it was committed, and is not imposing punishment in addition to
what was prescribed by the law at that time . The DOC is therefore acting within its
discretion to administer Husten’s sentence according to Minnesota law.
Affirmed.