Joseph Bergeron, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0733

Joseph Bergeron, petitioner,
Appellant,

vs.

Commissioner of Corrections, Tom Roy, et al.,
Respondents.

Filed January 14, 2019
Affirmed
Johnson, Judge

Washington County District Court
File No. 82-CV-17-5365

Joseph Bergeron, Stillwater, Minnesota (pro se appellant)

Keith M. Ellison, Attorney General, Rachel Bell, Kelly Kemp, Assistant Attorney s
General, St. Paul, Minnesota (for respondents)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and John P.
Smith, Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
Joseph Bergeron is serving a life sentence at the Stillwater correctional facility for
a 1988 murder in Hennepin County. In December 2017 , he petitioned the Washington

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

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County District Court for a writ of mandamus that would require the commissioner of
corrections to release him from prison and place him on supervised release. The district
court dismissed the petition. We affirm.
FACTS
Before describin g the procedural history of this particular case, we will briefly
review the history of Bergeron’s crime and his incarceration.
In September 1988, Bergeron burglarized a man’s home in Minneapolis and stabbed
him with a knife eight times, causing him to bleed to death. After a jury found him guilty
of first-degree murder while committing or attempting to commit burglary, the district
court imposed a mandatory life sentence. See Minn. Stat. § 609.185(3) (1988) . The
supreme court affirmed. See S tate v. Bergeron, 452 N.W.2d 918 (Minn. 1990)
(Bergeron I).
In February 2011, the commissioner of corrections placed Bergeron on intensive
supervised release, with conditions. Bergeron was eligible for supervised release because
he had been imprisoned for more than 17 years. See Minn. Stat. § 244.05, subds. 4, 5
(1988). B ergeron violated the terms of his supervised release in 2011 and 2012 . After
each violation, the commissioner continued his supervised release with restructured terms,
including a requirement that he not use or possess alcohol.
In October 2014, Bergeron was charged in Hennepin County with driving while
impaired, fleeing a peace officer, and obstructing legal process. In December 2014 , the
commissioner revoked Bergeron’s supervised release.

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In October 2015, Bergeron petitioned the Washington County District Court for a
writ of habeas corpus . He claimed that he was being unlawfully detained on the ground
that his life sentence had expired after 25 years. The district court dismissed his petition,
stating that his “life sentence is still in effect and he remains under the control of the
Commissioner of Corrections” and that “the Commissioner of Corrections had the
authority to rescind his parole upon violation of the co nditions of release .” Bergeron v.
Roy, No. A16-0351, 2016 WL 4421554, at *2 (Minn. App. Aug. 22, 2016) ( Bergeron II).
This court affirmed. Id. at 3.
In June 2016, Bergeron again petitioned the Washington County District Court for
a writ of habeas corpus . Bergeron asserted multiple claims, including a claim that “the
period of revocation of [his] supervised release exceeds 90 days, in violation of Minn. Stat.
§ 244.30(a).” Bergeron v. Roy, No. A16-1999, 2017 WL 2920297, at *4 (Minn. App. July
10, 2017) (Bergeron III), review denied (Minn. Aug. 30, 2017) , cert. denied, 138 S. Ct.
1007 (2018). The district court dismissed the petition on the ground that the commissioner
had not violated any of Bergeron’s “statutory or due process rights.” This court affirmed
on the grounds that Bergeron had “failed to establish that any of the alleged statutory and
regulatory violations rises to the level of a jurisdictional defect or a constitutional violation”
and that he could not demonstrate a violation of his due-process rights. Id. at *6-7.
With that background in mind, we turn to this case. In December 2017, Bergeron
petitioned the Washington County D istrict Court for a writ of mandamus (not a writ of
habeas corpus) . In his pro se petition, he claim ed that the commissioner ha s a
nondiscretionary duty to release him from prison, and he s ought a writ of mandamus to

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compel the commissioner to release him. He argued to the district court that “[a]ll of the
legal issues” were “decided against” the c ommissioner in this court’s 2017 opinion. In
April 2018, the district court dismissed Bergeron’s petition. The district court reasoned
that Bergeron had an alternative remedy in the habeas corpus statute, that the Bergeron III
opinion had not concluded that he was entitled to release, and that the commissioner had
determined that Bergeron’s incarceration is necessary for the sake of public safety.
Bergeron appeals.
D E C I S I O N
Bergeron argues that the district court erred by dismissing his petition for a writ of
mandamus.
A writ of mandamus “may be issued to any inferior tribunal, corporation, board, or
person to compel the performance of an act which the law specially enjoins as a duty
resulting from an office, trus t, or station.” Minn. Stat. § 586.01 (201 8). The writ of
mandamus is an extraordinary legal remedy. State v. Pero, 590 N.W.2d 319, 323 (Minn.
1999). To obtain a writ of mandamus, a petitioner must show that three conditions are
present: (1) the respondent has failed to perform an official duty that is clearly imposed by
law; (2) the official’s failure to perform the official duty has caused injury to the petitioner;
and (3) there is no other adequate legal remedy. Breza v. City of Minnetrista, 725 N.W.2d
106, 109-10 (Minn. 2006). “Mandamus may issue against a public officer only to compel
a ministerial act and not when the official has discretion with respect to the act in question.”
Duncan v. Roy , 830 N.W.2d 48, 51 (Minn. App. 2013), review denie d (Minn. Jul y 16,
2013) (quotation omitted). A writ of mandamus may not issue to direct how a n official

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duty must be performed or how discretion must be exercised. See S tate v. Davis , 592
N.W.2d 457, 459 (Minn. 1999); State ex rel. Spurck v. Civil Serv. Bd., 42 N.W.2d 729, 730
(Minn. 1950). A district court’s grant of mandamus is only for the “rare cases that the
officials act in so clearly an arbitrary and capricious a manner that their action may be
reviewed on mandamus.” Mendota Golf, LLP v. City of Mendota Heights , 708 N.W.2d
162, 176 (Minn. 2006) (quotation omitted).
The petitioner in a mandamus action bears the burden of demonstrating “every
material fact necessary to show the existence of the plain duty to act with respect to the
relief sought.” Id. at 179; see also Ebenezer Soc’y v. Minn. State Bd. of Health, 223 N.W.2d
385, 388 (Minn. 1974). This court applies a de novo standard of review to a district court’s
denial of a petition for a writ of mandamus if th e decision is “based solely on a legal
determination.” Breza, 725 N.W.2d at 110.
In this case , Bergeron contends that the commissioner has failed to perform an
official duty arising from the following statute:
(a) If the commissioner revokes the supervised
release 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.

(b) This section does not a pply to offenders on
supervised release for a violation of section 609.342, 609.343,
609.344, 609.345, 609.3451, or 609.3453.

(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 the longer incarceration period is
necessary to protect the public.

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Minn. Stat. § 244.30 (2018). Bergeron specifically contends that the commissioner has
held him in incarceration for more than 90 days, in violation of paragraph (a).
In response, the commissioner presents several arguments. The commissioner first
argues that section 244.30 does not apply to a prisoner such as Bergeron , who was
sentenced to life in prison. The commissioner argues that supervised release for a prisoner
with a life sentence is governed by section 244.05. The commissioner’s first argument is
somewhat in tension with this court’s 2017 opinion , in which we questioned similar
arguments but ultimately did not resolve them. See Bergeron III, at *5. Bergeron contends
that our 2017 opinion is “binding ” in this case . Our 2017 opinion is an unpublished
opinion, which means that it is not binding precedent. See Minn. Stat. § 480A.08, subd.
3(c) (2018); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (Minn. 2004); State v.
Porte, 832 N.W.2d 303, 312 n.1 (Minn. App. 2013). But the opinion was issued in a case
with the same parties as the parties in this case, which gives rise to the possibility that the
commissioner’s first argument is precluded by the doctrine of collateral estoppel. See State
v. Lemmer , 736 N.W.2d 650, 658 -64 (Minn. 2007) ; Hauschildt v. Beckingham , 686
N.W.2d 829, 837-40 (Minn. 2004); Haavisto v. Perpich, 520 N.W.2d 727, 731-32 (Minn.
1994). The commissioner recognizes this possibility and makes an alternative argument
that the collateral-estoppel doctrine does not apply. The commissioner also argues in the
alternative that, even if section 244.30 applies, Bergeron has not demonstrated a right to
relief because the commissioner has made the determination described in paragraph (c) ,

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which justifies Bergeron’s incarceration beyond the 90-day period specified in paragraph
(a).
We need not address all of the issues raised in the parties’ briefs. Bergeron’s petition
is based on one legal theory : that the commissioner has failed to comply with the
requirements of paragraph (a) of section 244.30. Assuming without deciding that section
244.30 applies to Bergeron, it naturally follows that all paragraphs of section 244.30 would
apply. Accordingly, Bergeron would be entitled to relief on his chosen legal theory only
if the commissioner had not complied with paragraph (c) of section 244.30.
The commissioner has reviewed Bergeron’s life sentence on three occasions since
the revocation of his supervised release . In January 2015, the commissioner informed
Bergeron by letter that he would remain in prison for another year, at which time his
sentence would be reviewed again. The commissioner wrote that Bergeron had engaged
in deceptive behavior and had “not taken ownership of [his] behavior.” The commissioner
also wrote that his d ecision to continue the review was based in part on a concern for
“public safety.”
In January 2016, the commissioner informed Bergeron by letter that the review of
his life sentence would be continued for two more years. The commissioner wrote , “This
decision reflects our concern for public safety interests due to the fact that you continue to
demonstrate a lack of personal responsibility for your behavior while on community
supervision and subsequent return to custody following your revocation of supervision.”
In January 2018, the commissioner informed Bergeron by letter that the review of
his life sentence would be continued again for two more years. The commissioner wrote,

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“I must be confident that the release [of any person to community supervision ] will not
jeopardize public safety .” The commissioner also wrote , “Because of your continued
refusal to cooperate with the review process and to address your chemical use/abuse, I have
concluded that continuing your incarceration is necessary to protect the public.”
The commissioner’s decisions in 2015, 2016, and 2018 that Bergeron would remain
in prison were expressly based on the commissioner’s concerns about public safety. In
each letter to Bergeron, the commissioner identified reasons for his decision that are
“substantial and compelling.” See Minn. Stat. § 244.30(c). Thus, the commissioner has
satisfied the requirements of paragraph (c) of section 244.30. Assuming without deciding
that section 244.30 applies to Be rgeron, he is not entitled to relief under paragraph (a)
because the commissioner has complied with paragraph (c). In light of that conclusion, we
need not address the commissioner’s other arguments for affirmance of the district court’s
decision.
In sum, the district court did not err by dismissing Bergeron’s petition for a writ of
mandamus.
Affirmed.