Michael D. Perseke, 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This opinion will be unpublished and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
A20-0651

Michael D. Perseke,
Appellant,

vs.

Jodi Harpstead, et al.,
Respondents,

Paul Schnell,
Respondent.

Filed December 21, 2020
Affirmed
Smith, Tracy M., Judge

Carlton County District Court
File No. 09-CV-19-2363

Michael D. Perseke, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney General, Anthony R. Noss, Assistant Attorney General, St. Paul,
Minnesota (for respondents Jodi Harpstead and Nancy Johnston)

Keith Ellison Attorney General, Rachel Bell-Munger, Assistant Attorney General, St. Paul,
Minnesota (for respondent Paul Schnell)

Considered and decided by Hooten, Pres iding Judge; Smith, Tracy M., Judge; and
Halbrooks, Judge.


 Retired judge of the Minnesota Court of A ppeals, serving by appoi ntment 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
SMITH, TRACY M., Judge
In this appeal from the denial of a petiti on for a writ of habeas corpus, appellant
Michael D. Perseke argues that the district court erred by denyin g his petition because
respondent Commissioner of the Minnes ota Department of Corrections (DOC) 1
miscalculated his conditional-release term, violated his due-process rights, and violated the
prohibition against ex post facto laws. Perseke al so argues that the district court erred by
not holding an evidentiary hearing. We affirm.
FACTS
In 2003, Perseke pleaded guilty to one count of burglary in the first degree and one
count of criminal sexual condu ct in the third degree. He was sentenced to consecutive
prison terms of 98 months on the burglary conviction and 46 months on the criminal-
sexual-conduct conviction, as well as to ten years of conditional release under Minn. Stat.
§ 609.109, subd. 7(a) (2002), based on the sex offense.2
When Perseke was sentenced, DOC calculated the expiration date of an offender’s
sentence according to the prin ciple—supported by then-cu rrent Minnesota Court of
Appeals caselaw—that a conditional-release term runs concurrently with a supervised-

1 Other respondents are officials with the Minnesota Department of Human Services
(DHS). Perseke is currently committed to DHS’s Minnesota Sex Offender Program
(MSOP). The DHS respondents did not file a brief because Perseke does not challenge the
lawfulness of the MSOP confinement.

2 The statutory provision for conditional-rele ase terms based on sex offenses has been
recodified a number of times since 2002; the current provision is found in Minn. Stat.
§ 609.3455, subd. 6 (2013).

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release term. See State v. Koperski , 611 N.W.2d 569, 573 (Minn. App. 2000)
(“[S]upervised release and conditional release periods must run concurrently.”), abrogated
by State ex rel. Pollard v. Roy, 878 N.W.2d 341 (Minn. App. 2016), vacated and remanded
(Minn. Dec. 27, 2016), aff’d on similar grounds, 2017 WL 1833209 (M inn. App. May 8,
2017), review denied (Minn. July 18, 2017). Applying this principle to Perseke’s sentence,
DOC projected that Perseke’s conditional-release term would expire in 2016.3
In September 2012, DOC sent Perseke a memorandum informing him that it had
recalculated the projected expiration date of his conditional-release term. DOC explained
that it was recalculating sentences for all offenders sentenced to conditional-release terms
in light of two recent decisions from this court. In State ex rel. Peterson v. Fabian, we held
that a conditional-release term imposed on a predatory offender under Minn. Stat.
§ 243.166 (2008) for failure to register runs consecutively to, rather than concurrently with,
the offender’s supervised-release term. 784 N.W.2d 843, 846 (Minn. App. 2010). In State
ex rel. Cote v. Roy , in a nonprecedential order opinion, we conc luded that consecutive
calculation also applied to a conditional-rel ease term for a sex offender imposed under
Minn. Stat. § 609.109, subd. 7(a). No. A1 1-0727 (Minn. App. Nov. 15, 2011), review
denied (Minn. Jan. 25, 2012).
Based on these cases, DOC clarified that Perseke’s conditional-release term would
begin after his supervised-release term c oncluded in 2015 and projected that his

3 In April 2012, DOC sent Pe rseke a memorandum explaining that Perseke’s consecutive
sentences had been entered in the wrong order and that, upon correction of that mistake,
the expiration date of his conditional release term would be April 15, 2022. Perseke does
not challenge this action, nor does it affect our analysis here.

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conditional-release term would expire in April 2025. DOC explained that Perseke would
receive credit against his conditional-release term for each day that he served on supervised
release. DOC gave Perseke 1,086 days of credit against his conditional-release term and,
following another correction not at issue here , recalculated the e xpiration date of his
conditional release to be April 15, 2022.
Perseke petitioned for a writ of habeas corpus, arguing that DOC erroneously
calculated his conditional-release term. The di strict court denied his petition without a
hearing because it determined that, as a ma tter of law, DOC properly calculated his
conditional-release term in accordance with our decisions in Peterson and Cote.
This appeal follows.
D E C I S I O N
A writ of habeas corpus is a statutory ci vil remedy available to obtain relief from
unlawful imprisonment or restraint. Minn. Stat. § 589.01 (2018). On review of a denial of
a petition for a writ of habeas corpus, the district court’s findings “are entitled to great
weight and will be upheld if reasona bly supported by the evidence.” Aziz v. Fabian, 791
N.W.2d 567, 569 (Minn. App. 2010). We review questions of law de novo. Id.
I. The district court did not err by co ncluding that DOC pr operly calculated
Perseke’s conditional-relea se term to run consecut ively to his supervised
release.

Perseke contends that DOC miscalculate d his conditional-release term. He argues
that Peterson does not apply to him because that case involved conditional release imposed
under Minn. Stat. § 2 43.166, subd. 5(a) (2 008), while Pereske’s conditional release was
imposed under Minn. Stat. § 609.109, subd. 7(a). His argument fails.

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In Peterson, we held that “a conditional-rele ase term for failure-to-register
[predatory] offenders under Minn. Stat. § 243.166, subd. 5(a), is consecutive to a
supervised-release term.” 784 N.W.2d at 846. The basis for our conclusion was our
interpretation of the plain language of Minn. Stat. § 243.166, subd. 5(a), which stated that
“the court shall provide that after the person has comple ted the sentence imposed , the
commissioner shall place the person on conditional release for ten years.” Id. (emphasis
added). We concluded that, because “a sent ence includes both the te rm of imprisonment
and the term of supervised release, th e conditional-release te rm under Minn. Stat.
§ 243.166, subd. 5(a), does not commence until after both the term of imprisonment and
the term of supervised release are completed.” Id. (citations omitted).
In Cote, we extended Peterson’s holding to a sex offender subject to a conditional-
release term imposed under Minn . Stat. § 609.109, subd. 7(a). Cote, No. A11-0727. That
statute, like the version of section 243.166 analyzed in Peterson, stated that conditional
release begins “ after the person has comple ted the sentence imposed .” Minn. Stat.
§ 609.109, subd. 7(a) (emphasis added). The relevant statutory language at issue in
Peterson and Cote is nearly identical. Compare Minn. Stat. § 243.166, subd. 5(a) (“[A]fter
the person has completed the sentence impos ed, the commissioner shall place the person
on conditional release.”), with Minn. Stat. § 609.109, subd. 7(a) (“[A]fter the person has
completed the sentence impos ed, the commissioner of correc tions shall place the person
on conditional release.”). Both statutes stated that conditional release begins after the
sentence is served, and our holding in Peterson depended on this clear statutory language.
See Peterson, 784 N.W.2d at 846 (“[W]e apply th e clear language of section 243.166,

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subdivision 5a, that ‘the court shall provide that after the person has completed the sentence
imposed, the commissioner shall place the pe rson on conditional releas e for ten years.’”
(emphasis omitted)). We concluded in Cote that we could discern no reason for a different
outcome from the one in Peterson simply because Cote’s conditional-release term was
imposed under Minn. Stat. § 609.109, subd. 7(a), rather than Minn. Stat. § 243.166, subd.
5(a).
Pereske’s conditional-release term was impos ed under the same st atute as that at
issue in Cote. As in Cote, we can discern no reason for a different outcome from Peterson.
Moreover, post-Cote cases support the conclusion that consecutive calculation applies. See
State ex rel. Duncan v. Roy, 887 N.W.2d 271, 274 (Minn. 2016) (upholding DOC’s 2012
recalculation of a conditional-release term impos ed under Minn. Stat. § 609.109, subd. 7,
to run consecutively in light of Peterson and Cote); Pollard, 878 N.W.2d at 349-50
(abrogating Koperski’s holding that supervised release and conditional release periods run
concurrently when addressing a conditional -release term imposed under Minn. Stat.
§ 609.3455, subd. 6).
Perseke also relies on an unpublished decision, Thundercloud v. Harpstead ,
No. A19-0529, 2019 WL 5541493 (Minn. App. Oct. 28, 2019), to argue that Peterson does
not apply to him. Unpublished decisions ar e not precedential, Minn. Stat. § 480A.08,
subd. 3(c) (2018), but, in any event, our decision in Thundercloud is easily distinguished.
In Thundercloud, the offender committed his crime before August 1993 when the
applicable statute provided that the conditional-release period would last for “the remainder
of the statutory maximum period or for ten years, whichever is longer.” Thundercloud,

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2019 WL 5541493, at *2 (quoting Minn. Stat. § 609.1352, subd. 5 (1992)) (emphasis and
internal quotation marks omitted). Thunderclou d’s conditional-release term was to begin
after he “completed the sentence imposed, less any good time.” Id. (quoting Minn. Stat.
§ 609.1352, subd. 5) (internal quotation marks omitted). We concluded that the pre-August
1993 “good time” statute differed from the statute in place at the time of the later Peterson
decision and that DOC had improperly applied Peterson to Thundercloud’s sentence. Id.
at *2 n.1. But, unlike in Thundercloud, and as we decided in Cote, the statutes that govern
Peterson’s and Perseke’s cond itional-release terms use the same plain language and are
therefore treated the same. Thus, Perseke’s conditional release begins after his sentence is
served, and DOC’s consecutive calculation was correct.
II. Perseke’s constitutional claims fail.

Perseke argues that DOC’s application of the Peterson and Cote decisions to him
violates the prohibition against ex post facto laws and his due-process rights.
We begin with Perseke’s ex post facto claim. Both the United States and Minnesota
State Constitutions contain ex post facto clauses that pr ohibit states from imposing
punishment for an act that was not punisha ble when it was committed or that imposes
additional punishment than pres cribed. U.S. Const. art. I, § 10; Minn. Const. art. I, § 11;
Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964 (1981); Rew v. Bergstrom, 845
N.W.2d 764, 790 (Minn. 2014). To constitute an ex post facto law, a statute must be a
criminal or penal law, it must not be “mer ely procedural,” it must “apply to events
occurring before its enactment, and it must disadvantage the offender affected by it.”

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Graham, 450 U.S. at 29 n.12, 101 S. Ct. at 964 n.12; State v. Moon, 463 N.W.2d 517, 521
(Minn. 1990).
Perseke does not challenge a statute imposing a new punishment. Rather, he
challenges DOC’s application of decisions by this court interpreting the plain language of
statutory provisions imposing conditional-rel ease terms. The plain language that we
interpreted is the same language that govern ed Perseke’s conditional-release term at the
time of his court-imposed criminal sentence . Our court decisions simply clarified the
meaning of the existing statutory language, including in section 609.109, and DOC applied
that clarification to Perseke. No statute imposed new punishment, and Perseke’s ex post
facto argument lacks merit.
As to Perseke’s due-process claim, to th e extent that it is based on Perseke’s
objection to DOC’s recalculation in light of the Peterson and Cote decisions, his argument
is the same as his ex post facto argument an d again fails because no new punishment was
imposed on Perseke. To the extent that Perseke’s due -process claim is based on the
contention that he was entitle d to notice before DOC recalcu lated his conditional-release
term, that procedural-due-process claim is forfeited because Perseke makes it for the first
time on appeal. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996). In any event, the
argument fails on its merits because Perseke does not identify any due-process interest that
is violated by DOC recalculating his conditional-release term based on intervening caselaw
without advance notice or any state law or authority requiring DOC to hold a hearing before
recalculating it. See Carrillo v. Fabian , 701 N.W.2d 763, 768 (M inn. 2005) (explaining
that, to establish a procedural-due-process violation by DOC, an offender must establish a

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protected liberty interest and that DOC lack ed a procedure to adequately protect that
interest).
III. The district court did not err by decidi ng Perseke’s habeas petition without an
evidentiary hearing.

An evidentiary hearing on a habeas petiti on is unnecessary if a petitioner fails to
allege sufficient facts to establish a prima fa cie case for relief or if the petition does not
show a factual dispute. Seifert v. Erickson , 420 N.W.2d 917, 920 (Minn. App. 1988).
Because Perseke failed to allege sufficient fact s to establish a prima facie case for relief
and he did not identify a factual dispute, Perseke’s petition could be decided as a matter of
law and no evidentiary hearing was necessary. The district court did not err by deciding
Perseke’s habeas petition without an evidentiary hearing.
Affirmed.