Jerry Duwenhoegger, 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This opinion will be unpublished and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
A20-0180

Jerry Duwenhoegger,
Appellant,

vs.

Paul Schnell,
Respondent.

Filed July 27, 2020
Affirmed
Rodenberg, Judge

Washington County District Court
File No. 82-CV-19-4459

Jerry Duwenhoegger, Bayport, Minnesota (pro se appellant)

Keith Ellison, Attorney Genera l, Kelly S. Kemp, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Connolly, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Jerry Duwenhoegger appeals from the district court’s order denying his
petition for a writ of habeas corpus. Appellant argues that the district court should have
granted his petition because the Minnesota Depa rtment of Corrections (DOC) is illegally
extending his incarceration for prison discipline. We affirm.

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FACTS
On April 26, 1999, appellant was sentenced to consecutive sentences of 190 months
and 180 months in prison after he was convic ted of two counts of conspiracy to commit
first-degree murder. Both offenses were committed in 1998.
Appellant has been involved in num erous legal proceedings during his
incarceration. Duwenhoegger v. King , 561 F. App’x 581 (8th Cir. 2014) (affirming a
summary judgment dismissing appe llant’s 42 U.S.C. § 1983 action); Duwenhoegger v.
King, No. 10-3965, 2013 WL 646317 (D. Minn. Feb. 21 , 2013) (order adopting the
magistrate judge’s report and recommendati on that defendants’ motion for summary
judgment be granted and plaintiff’s third amended complaint be dismissed with prejudice);
Duwenhoegger v. King , No. 10-3965, 2013 WL 646235 (D. Minn. Jan. 28, 2013)
(recommending defendants’ motion for summar y judgment be granted and appellant’s
third amended complaint be dismissed with prejudice); Duwenhoegger v. King , No. 10-
3965, 2012 WL 1529300 (D. Minn. Apr. 30, 2012) (order denying appellant’s motion for
a restraining order, two protective orders, and declaratory judgment); Duwenhoegger v.
King, No. 10-3965, 2012 WL 1516865 (D. Minn. Feb. 13, 2012) (recommending denial of
appellant’s motion for a restraining orde r, two protective orders, and declaratory
judgment); State v. Duwenhoegger , No. C5-99-1237, 2000 WL 821483 (Minn. App.
June 27, 2000) (affirming appellant’s 1999 conviction).
On August 12, 2019, appellant petitioned the district court for a writ of habeas
corpus. In his petition, appellant allege d that the DOC “retaliated with malice
aforethought, bias, prejudice, persecution, and cruelly and unusually punished [appellant]

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with 363 days of illegal and unconstitutional extended incarceration.” Appellant alleged
that the DOC’s retaliation was motivated by appellant’s claim to be a sovereign citizen.
Appellant claimed that he was “repeatedly accu sed . . . of filing and threatening to file
‘false and fraudulent UCC liens’ against staff’” and that he was “cruelly and unusually
punished . . . using MN D.O.C. policy #301.0 30.” DOC policy 301.030 classifies certain
Uniform Commercial Code (UCC) materials as contraband. In his habeas petition,
appellant cites one specific instance of a 2 010 reprimand when appellant was accused of
threatening to file a UCC lie n against the DOC law librarian shortly after the librarian
“withheld some of [appellant]’s legal documents for review.” Appellant also alleged that
the DOC violated his rights to due process, his Eighth Amendment right to be free from
cruel and unusual punishment, and his right to restoration of “good time” under Minn. Stat.
§ 244.04 (2018).
On November 13, 2019, the district court ordered that the DOC respond to
appellant’s petition. On December 12, 2019 , the DOC filed its memorandum opposing
appellant’s petition. The DOC argued:
[Appellant]’s challenges to the extended incarceration he has
received since 2007 are either barred by res judicata, fail to
state a prima facie case for relief, or fail as a matter of law and
in light of official records, wh ich patently contradict his bare
assertions that he was sancti oned with extended incarceration
for actually filing false liens, that his discipline was imposed
in retaliation for his exercise of any constitutional right, and
that he was denied due process during his disciplinary
proceedings.

The DOC argued that appellant’s previous federal lawsuit challenging the DOC’s
“prohibition on the possession of UCC-relate d materials and the discipline [appellant]

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received between 2007 and 2010” precludes revi siting the issues reso lved in that earlier
case.
On January 8, 2020, the district court de nied appellant’s petition for habeas corpus
and dismissed the petition with pr ejudice. First, the district court determined that an
evidentiary hearing was not warranted because appellant “failed to state a prima facie case
for habeas relief,” “no disputed issues of material fact exist, ” and “the issues raised by
[appellant] can be decided as a matter of law.” Second, the district court concluded that
several of appellant’s challenges to the DOC’s contraband policy and disciplinary decisions
were barred by res judicata because of a prior federal lawsuit in which summary judgment
was granted to the DOC on the same or similar allegations by appellant. Third, the district
court found that appellant’s re maining claims for retaliation, denial of due process, and
cruel and unusual punishment failed for failure to state a prima facie case for relief and/or
“as a matter of law and in light of official re cords . . . which contradict many of the bare
and conclusory allegations in his petition.”
This appeal followed. 1
D E C I S I O N
Appellant argues that the district court erred by denying his habeas request because
he was “cruelly and unusually, illegally a nd unconstitutionally punished” when the DOC
extended his incarceration for prison discipline.

1 After filing his appeal, appellant moved to disqualify the Office of the Attorney General
from representing respondent. We denied appellant’s motion b ecause no basis for
disqualification exists.

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In the main, appellant’s briefing consists of sweeping generalizations and legal
assertions that have no support in any legal authority. To the extent that his arguments
concern his status as a sovereign citizen as entitling him to special privileges not available
to others, these sorts of arguments have been observed to have “no conceivable validity in
American law.” United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990). Most of
appellant’s briefing is unsuppo rted by comprehensible legal citation or analysis, and the
authorities he does cite almost uniformly fail to support his arguments.
Arguments are deemed waived when a “brief contains no argument or citation to
legal authority in support of the allegations.” State v. Krosch, 642 N.W.2d 713, 719 (Minn.
2002). Despite the insu fficiency of appellant’s briefing, we have done our best to
understand and analyze appellant’s arguments on their meager merits.
“A person imprisoned . . . may apply for a writ of habeas corpus to obtain relief
from imprisonment or restraint.” Minn. Stat. § 589.01 (2018). “A writ of habeas corpus
may also be used to raise claims involving fundamental constitutional rights and significant
restraints on a defendant’s liberty or to challenge the conditions of confinement.” State ex
rel. Guth v. Fabian , 716 N.W.2d 23, 26-27 (Minn. App. 2006), review denied (Minn.
Aug. 15, 2006). “The district court’s findings in support of a denial of a petition for a writ
of habeas corpus are entitled to great weight and will be upheld if reasonably supported by
the evidence.” Aziz v. Fabian, 791 N.W.2d 567, 569 (Minn. App. 2010). Questions of law
pertaining to a habeas petition are subject to de novo review. Id.
We interpret appellant’s brief as challe nging each of the district court’s legal
determinations denying him relief.

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I. Res judicata bars appellant’s cl aims concerning pre-2011 discipline.

Appellant previously filed an action in federal court under 42 U.S.C. § 1983 in
which summary judgment was granted against appellant and in favor of respondent’s
predecessor. See Duwenhoegger , 561 F. App’x at 581 (affi rming an adverse grant of
summary judgment in appellant’s 42 U.S.C. § 1983 action); Duwenhoegger, 2013 WL
646317, at *1 (order adopting the magistra te judge’s report and recommendation that
defendants’ motion for summary judgment be granted and appellant’s third amended
complaint in that action be dismissed with prejudice); Duwenhoegger, 2013 WL 646235,
at *32 (recommending defendants’ motion for summary judgment be granted and
appellant’s third amended complaint be dismissed with prejudice).
Appellant argues that the district court e rred when it applied res judicata to his
habeas claims. Appellant conte nds that “[n]o part of the pr evious action had anything to
do with petitioning for the dismissal of the cruel and unusual, illegal and unconstitutional
extended incarceration.” Appellant also argues that “[t]he final judgment on the lawsuit
was not an adjudication on the merits of the Habeas Corpus which is an action seeking an
absolutely different form of re lief in the Law and cannot be incorporated as part of the
former civil lawsuit.”
The district court did not appl y res judicata to all of appellant’s habeas claims. In
denying appellant’s petition, the district court concluded that appellant’s “challenges to the
DOC’s contraband policy and his claims about those 226 days of extended incarceration
[that appellant challenged in federal court] are barred by res judicata, because [of the

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earlier] federal lawsuit, which resulted in a grant of summary judgment for the DOC
defendants.”
Res judicata bars a subsequent claim when “(1) the earlier claim involved the same
set of factual circumstances; (2) the earlier claim involved the same parties or their privies;
(3) there was a final judgment on the merits; (4) the estopp ed party had a full and fair
opportunity to litigate the matter.” Hauschildt v. Beckingham , 686 N.W.2d 829, 840
(Minn. 2004). “All four prongs must be met for res judicata to apply.” Id. “Res judicata
applies equally to claims actually litigated and to claims that could have been litigated in
the earlier action.” Brown-Wilbert, Inc. v. Copeland Buhl & Co. , 732 N.W.2d 209, 220
(Minn. 2007). “We review the appli cation of res judicata de novo.” Rucker v. Schmidt,
794 N.W.2d 114, 117 (Minn. 2011).
Under the first element, the earlier claim must have involved the same set of factual
circumstances as the later claim. Hauschildt, 686 N.W.2d at 840. Two claims involve the
same set of factual circumstances if “the same evidence will sustain both actions.”
McMenomy v. Ryden , 148 N.W.2d 804, 807 (Minn. 1967 ). Appellant’s federal lawsuit
challenged his extended incarceration, his possession of UCC materials, and claimed
retaliation against him for his status as a sovereign citizen for the period of time from 2006
through 2011. Duwenhoegger, 2013 WL 646235, at *1. To the extent that appellant now
challenges the DOC’s imposition of discipline during the relevant time period, the same
set of factual circumstances are involved in both this case and the earlier federal litigation.
For example, one of appellant’s claims of unlawful incarcer ation in his federal lawsuit

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specifically related to the law librarian, as does his current habeas petition. Id. at *4. This
element is satisfied.
Under the second element, both claims must involve the same parties or their privies
in order to have preclusive effect. Hauschildt, 686 N.W.2d at 840. “[C]ourts will find
persons in privity with anothe r party when (1) they control an action despite not being
named a party to it, (2) a party represents th eir interests in an action, or (3) they are
successors in interest to persons with derivative claims.” Ward v. El Rancho Manana, Inc.,
__ N.W.2d __, __, 2020 WL 2517082, at *5 (M inn. App. May 18, 2020). Appellant’s
federal lawsuit was brought against many MNDOC employees in their official capacities.
Duwenhoegger, 2013 WL 646235, at *1. This in cluded then-DOC Commissioner Joan
Fabian. Duwenhoegger, 561 F. App’x at 581. Appell ant’s habeas petition named the
current DOC Commissioner as a respondent and alleged claims against him in his official
capacity. This element is satisfied.
Under the third element, there must have been a final judgment on the merits in the
earlier claim in order for it to have preclusive effect. Hauschildt, 686 N.W.2d at 840. “A
final judgment ends the litigation on the merits and leaves nothing for the court to do but
execute the judgment.” T.A. Schifsky & Sons, Inc. v. Bahr. Constr., LLC, 773 N.W.2d 783,
788 (Minn. 2009) (quota tion omitted). The federal district court granted, and the Eighth
Circuit Court of Appeals a ffirmed, the DOC employees’ motion for summary judgment
and dismissed appellant’s complaint in its entirety with prejudice. Duwenhoegger, 561
F. App’x 581; Duwenhoegger, 2013 WL 646317. A dismissa l with prejudice is a final

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judgment. Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 583 (Minn. 2010). This element is
satisfied.
Under the fourth element, appellant must have had a full and fair opportunity to
litigate the earlier claims. Hauschildt, 686 N.W.2d at 840. Appellant’s federal lawsuit has
a lengthy history and included at least three amended complaints. Duwenhoegger, 2013
WL 646235, at *1. The federal court “poured over [appellant’s] epistle ad nauseam” and
addressed appellant’s “several recurring challenges.” Id. Appellant certainly had a full
and fair opportunity to litigate in federal court the same claims he now brings in his habeas
petition for periods of time before 2011. This element is satisfied.
The district court did not err in applyi ng res judicata to appellant’s habeas petition
to bar appellant from relitigating his challe nge to discipline imposed by the MNDOC
before 2011.
Because res judicata bars only appella nt’s arguments conc erning his pre-2011
discipline, we address the balance of appella nt’s post-2011 arguments on the merits and
without regard to any preclusive effect of the earlier litigation.
II. Appellant’s retalia tion claim fails.

In his petition, appellant alleged that th e DOC “accused [him] of violating a MN
D.O.C. discipline rule due to the FACT th at [appellant] filed his [Sovereign/American]
Nationality in accordance to ST ATE, Federal and Internati onal authorities.” Appellant
generally cites allegations concerning the filing of UCC liens, but provides specific
allegations concerning an incident of discip line involving the law librarian. Appellant

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alleges that he was “exercising [his] God-given and Constitutionally secured and protected
rights” and that he committed no misconduct.
The district court determined that appellant’s “retaliation claim . . . fails as a matter
of law, because his official disciplinary r ecords show that his extended incarceration was
imposed for actually violating prison rules, including the prohibition on possessing UCC-
related materials, and that the hearing officers’ decisions were supported by at least some
evidence.” The district court also found appellant’s assertions of sovereign nationality to
be “legally frivolous.”
“A prima facie case of retaliatory discipline requires a showing that: (1) the prisoner
exercised a constitutionally protected right; (2) prison officials disc iplined the prisoner;
and (3) exercising the right was th e motivation for the discipline.” Meuir v. Greene Cty.
Jail Emps., 487 F.3d 1115, 1119 (8th Cir. 2007). When a claim of retaliatory discipline is
made, the DOC “must simply prove that there was ‘some evidence’ supporting their
decision to discipline [the inmate], for if the contested discipline was imposed for an actual
violation of prison rules, the retaliatory discipline claim must fail.” Goff v. Burton, 91 F.3d
1188, 1191 (8th Cir. 1996).
Appellant argues that “all of the extended incarceration he has received was due to
his exercise of his sovereign nationality.” Appellant contends that “[a]ll of the discipline
had a relation in some form or manner of re lating to [appellant]’s exercise of his God-
given, Constitutional, civil, human and Birthr ight to declare and exercise his Nationality,
regardless of the different violation codes or names that the Respondent used.”

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The district court correctly determined th at appellant failed to make even a prima
facie case, because appellant’s claim of sovereign nationality is not constitutionally
protected. Courts have found such claims to be invalid and frivolous. See Schneider, 910
F.2d at 1570.
The district court also correctly determin ed that, even if appellant made a prima
facie showing of having exerci sed a constitutionally protecte d right, appellant failed to
demonstrate that he was disciplined for exercising that right.
The record supports the district court’s determination that, of the 143 days of
extended incarceration, post-2011, none were imposed for his having actually filed false
lien claims. Appellant’s arguments concer ning this issue either misapprehend or
misrepresent the factual record.
III. Appellant was not denied procedural due process.

In his petition, appellant alleged that he was denied procedural due process at the
disciplinary hearings because he requested that certain witnesses be present and they were
not, the hearing officer refused to call the Minnesota Secretary of State’s office to confirm
or deny the filing of a UCC lien on the law lib rarian, the hearing officer applied a “some
evidence” standard, and the hearing officer was biased.
The district court found that appellant “fail[ed] to identify specifically what
evidence or testimony he was prevented from presenting,” that the hearing officers applied
the correct standard, that appellant made no factual showing of bias, and that “the hearing
officer’s decisions were supported by at least some evidence.”

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“Inmates are entitled to some degree of protection under the Due Process Clause;
thus, prison authorities must provide inmate s with an appropriate level of due process
before they are deprived of a protected liberty interest.” Carrillo v. Fabian, 701 N.W.2d
763, 768 (Minn. 2005). When the result of the prison-di scipline process is extended
incarceration, an inmate has a protected liberty interest. See Johnson v. Fabian , 735
N.W.2d 295, 302 (Minn. 2007); Carrillo, 701 N.W.2d at 773. In that instance, an inmate
must receive:
(1) advance written notice of the disciplinary charges; (2) an
opportunity, when consistent with institutional safety and
correctional goals, to call witn esses and present documentary
evidence in his defense; and (3) a written statement by the
factfinder of the evidence relied on and the reasons for the
disciplinary action.

Superintendent v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773 (1985) (citing Wolff v.
McDonnell, 418 U.S. 539, 563-67, 94 S. Ct. 2963, 2978-80 (1974)).

Appellant’s appellate brief specifically mentions only the incident involving the law
librarian. To the extent that appellant claims a procedural-due-process violation for other
instances of discipline after 2011, appellant provided the district court with no evidence to
support his claims.
Appellant also argues that “[t]he ‘some evidence’ standard is unconstitutional and
unlawful and cannot be used to impose punish ment by the Respondent or the COURT.”
Appellant further argues that “[t]he use of the ‘some evidence’ sta ndard results in the
alleged verbal accusations of a government employee being more sound and sufficient than

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the verbal denials and proof of the Responden t with total violati on of any and all Due
Process of Law.”
Minnesota law requires more than “some evidence.” It requires that “a DOC hearing
officer must find by a preponderance of th e evidence that [an in mate] has committed a
disciplinary offense before the commissioner can extend the date of his supervised release.”
Carrillo, 701 N.W.2d at 777. The record reflects that the hearing officer did apply the
appropriate preponderance standard. The warden, when considering appellant’s appeal of
the hearing officer’s decision, confirmed that the hearing officer used the appropriate
standard. The preponderance-of-the-evidence standard requires more proof than the some-
evidence standard. Id. at 775-76. Because of this, we do not further address whether the
some-evidence standard is unfair or unconstitutional, because it is not the standard that was
used in appellant’s case.
Appellant also fails to understand the difference between the burden of proof needed
to convict and the burden required to be met in order to impose prison discipline. There is
no authority to support appellant’s argument that prison discipline requires proof beyond a
reasonable doubt or, as appellant puts it, pr oof “above and beyond all reasonable doubt.”
Here again, appellant’s arguments on appeal are utterly without merit.
IV. Appellant’s Eighth Amendment claim fails.

In his petition, appellant repeatedly asse rts that he was “cruelly and unusually,
illegally and unconstitutionally” punished by having his incarceration extended.

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The district court found that, “[b]ecause extending the prison portion of an
offender’s sentence does not involve the unnecessary and wonton infliction of pain,
[appellant]’s Eighth Amendment claim fails.”
Habeas corpus is an appropriate remedy fo r an Eighth Amendment violation if the
petitioner “establish[es] presen t and continuing mistreatment amounting to cruel and
unusual punishment.” Kelsey v. State ex rel. Erickson, 320 N.W.2d 438, 439 (Minn. 1982).
Prison officials “may adopt reasonable restrictions governing the conduct of the inmates.”
Wilkinson v. McManus , 214 N.W.2d 671, 672 (Minn. 1974). “The Eighth Amendment
comes into play only if the institutional restrictions are of such a character as to shock the
general conscious of the community or are intolerable in fundamental fairness.” Id.
Appellant argues that he “was cruelly and unusually, illegally and unconstitutionally
punished by the [DOC] when [the commissioner] issued extended incarceration upon
[appellant] due to [appellant]’s exercise of his protected and secured Constitutional
Rights.”
Appellant has not alleged any conduct by the DOC that would “shock the general
conscious of the community” or be considered intolerable. See id. The DOC is authorized
by statute to extend appellant ’s incarceration for violati ng prison rules and therefore
shorten his period of supervised release. Minn. Stat. § 24 4.101, subds. 2, 3 (2018).
Notwithstanding appellant’s unsupported rambli ngs to the contrary, the district court
correctly determined that appellant’s claim does not implicate the Eighth Amendment.
V. Minn. Stat. § 244.04, s ubd. 3 (2018), does not apply to appellant’s case.

In his petition, appellant states:

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[Appellant] acted in accordance to MN D.O.C. Policy
#106.202 “Good Ti me Administration” and petitioned the
Warden Eddie Miles, Jr., for restoration of all of the cruel and
unusual, illegal and unconstitutio nal extended incarceration,
loss of good time in accordance to Proc. C, which states:
“Restoration of time as required per Minn. Stat. § 244.04, subd.
2—good time earned prior to a discipline violation may not be
taken away. Extended incarceration as a result of discipline
may be vacated/restored on recommendation of the facility
warden to the deputy commissioner of facility services.[”]

Here again, it is unclear to us what appellant is attempting to argue.
The district court interpreted this to be a claim by appellant “that the DOC violated
Minnesota’s good-time statute, Minn. Stat. § 244.04, by failing to include a provision for
the ‘restoration’ of his extended incarceration.”
Section 244.04 does not apply to appellant . “The provisions of [section 244.04] do
not apply . . . to persons whose crimes were committed on or after August 1, 1993.” Minn.
Stat. § 244.04, subd. 3. Appellant committe d his crimes in 1998 and was sentenced for
them in 1999. As the district court correct ly noted, appellant’s sentence is governed by
Minn. Stat. § 244.05, subd. 1b (2018). Under that section, “[t]he amount of time an inmate
serves on supervised release shall be equal in length to the amount of time remaining in the
inmate’s executed sentence after the inmate has served the term of imprisonment and any
disciplinary confinement period imposed by the commissioner.”
The district court did not err in construing and rejecting this argument.
VI. Appellant’s argument concer ning the filing of oaths fails.

Appellant argues that the district court judge erred because “there was no Oath filed
by the alleged attorneys” in this case. Appellant cites no authority for the notion that judges

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and attorneys must file oaths and licenses in each district court case in which they become
involved. And we can find none.
VI. Appellant was not entitled to hearing on his habeas petition.

Because appellant appears to argue throughout his brief that he made a prima facie
case for habeas relief, we pres ume that appellant believes that the district court ought to
have held an evidentiary hearing on his petition.
The district court found that an evidentiary hearing was not warranted on appellant’s
petition because appellant “(1) failed to state a prima facie case for habeas relief; (2) that
no disputed issues of material fact exist; and (3) that the issues raised by [appellant] can be
decided as a matter of law.”
“[A] habeas corpus hearing is not ne eded when the petitioner has not alleged
sufficient facts to constitute a prima facie case for relief.” Case v. Pung, 413 N.W.2d 261,
263 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).
No evidentiary hearing was necessary on appellant’s habeas petition. The record
definitively establishes that appellant is not entitled to habeas relief.
VIII. Appellant’s remaining arguments fail.

Appellant’s brief makes additional argumen ts that—try as we might—we cannot
understand. To say the least, the concepts expressed are foreign to any traditional
understanding of law. See Schneider, 910 F.2d at 1570.
We have considered all of appellant’s arguments to the ex tent that we can
understand them and conclude that they have no merit.
Affirmed.