Robert Louis Bellanger Fohrenkam, 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This opinion will be unpublished and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
A20-0677

Robert Louis Bellanger Fohrenkam,
Appellant,

vs.

Paul Schnell,
Respondent.

Filed November 23, 2020
Affirmed
Cleary, Judge*

Rice County District Court
File No. 66-CV-20-341

Robert Louis Bellanger Fohrenkam, Faribault, Minnesota (pro se appellant)

Keith Ellison, Attorney Genera l, Corinne Wright-MacLeod, A ssistant Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decided by Frisch, Presid ing Judge; Johnson, Judge; and Cleary,
Judge.

* Retired judge of the Minnesota Court of Ap peals, 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
CLEARY, Judge
Appellant challenges the denial of his petition for writ of habeas corpus, arguing
that the Minnesota Department of Corrections (DOC) violated his due-process and equal-
protection rights by refusing to let him participate in the Challenge Incarceration Program
under Minn. Stat. § 244.171 (2018). We affirm.
FACTS
On August 20, 2018, the district court se ntenced appellant Robert Louis Bellanger
Fohrenkam, who had pleaded guilty to a first-degree controlled-substance crime, to a 110-
month presumptive prison sentence. Once in custody at the Minnesota Correctional
Facility-St. Cloud, Bellanger Fohrenkam applied for the Challenge Incarceration Program
(CIP).
CIP is a three-phase program created by th e legislature “to prepare the offender for
successful reintegration into society” thro ugh educational programs, a rigorous physical
program, and vocational training. Minn. Stat . § 244.171. Each phase lasts “at least six
months.” Minn. Stat. § 244.172 (2018). During phase I of CI P, offenders remain at the
correctional facility to receive training. Id. To advance to phase II, the offender must
complete all intensive treatm ent, education, and work pr ograms as set by the DOC. Id.,
subd. 1. Phase II consists of intensive supervision, which may require daily reporting,
while the offender is in the community. Id., subd. 2. Finally, the DOC determines at phase
III whether the offender has succe ssfully completed the program. Id., subd. 3. If so, the
offender may be placed on supervised release for the remainder of the sentence. Id.

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On November 13, 2018, th e DOC denied Bellanger Fohrenkam admission to CIP.
On November 30, 2018, a program director notified Bellanger Fohrenkam that the decision
was “final and cannot be appealed.” On November 5, 2019, Bellanger Fohrenkam received
another notice from CIP that his file was sent to the assistant commissioner of corrections
and that his request to enter CIP was again denied.
On February 11, 2020, Bellanger Fohrenkam filed a habeas corpus petition with the
district court, alleging he was denied admission to CIP because he “sold heroin laced with
Fentanyl and the substance allegedly caused an overdose death of one of [his] customers.”
On February 26, 2020, the district cour t denied Bellanger Fo hrenkam’s habeas
corpus petition without furthe r hearing. Relying on Hines v. Fabian , the district court
determined that offenders do not have a c onstitutionally-protected liberty interest in
admission to CIP because admi ssion is entirely discretiona ry. 764 N.W. 2d 849 (Minn.
App. 2009), review denied (Minn. July 22, 2009). The district court did not address
Bellanger Fohrenkam’s equal-protection claim. This appeal follows.
D E C I S I O N
I. The DOC did not violate Bellanger Fohrenkam’s due-process rights.
Questions of law pertaining to a habeas corpus petition are subject to de novo
review. Aziz v. Fabian, 791 N.W.2d 567, 569 (Minn. App. 2010). Whether a given case
requires due process is a question of law, which this court reviews de novo. Carrillo v.
Fabian, 701 N.W.2d 763, 768 (Minn. 2005). The due-process analysis requires two
inquiries: (1) whether the complainant has a liberty or property interest with which the state
has interfered, and (2) if the court finds a de privation of such an interest, whether the

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procedures attendant upon that deprivation were constitutionally sufficient. Id. The burden
rests on the petitioner to establish a violation of his rights at the habeas corpus proceeding.
Payne v. Erickson, 399 N.W.2d 126, 127 (Minn. App. 1987).
As to the first inquiry of the due-process analysis, Bellanger Fohrenkam asserts that
admission to CIP is a liberty interest with which the state has interfered. We answered this
question directly in Hines. 764 N.W.2d at 855. In Hines, this court distinguished a
supervised release date from the provisions of CIP. Id. at 854-56; see Carrillo, 701 N.W.2d
at 773 (recognizing a supervised release da te as a constitutionally protected liberty
interest). First, CIP has three phases, each with contingencies that prevent mere admission
into the program from “inevitably” affecting the length of the offender’s imprisonment.
Hines, 764 N.W.2d at 853. Second, the DOC’ s “initial decision regarding an inmate’s
admission into the CIP is entirely discretionary.” Id. (noting the DOC has discretion to
deny admission to offenders who meet all admi ssion criteria). Third, none of the three
phases of CIP has a fixed duration. Id. at 850, 853 (“at leas t six months”). Fourth,
Minnesota’s sentencing scheme provides an expectation for mandated supervised-release
dates at the time of sentencing, whereas CIP provides a mere possibility of an accelerated
release date. Id. at 854. Fifth, CIP is a rehabilitative program, which this court previously
held did not create a protected liberty interest. Id. (citing State ex rel. McMaster v. Young,
476 N.W.2d 670, 674 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991)).
Bellanger Fohrenkam apparently concedes Hines controls, instead arguing
Heilman v. Courtney, 926 N.W.2d 387 (Minn. 2019), overrules Hines because it recognizes
CIP as an exception to the general statutory scheme of the mandatory two-thirds minimum

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term of imprisonment. In Heilman, the Minnesota Supreme Court addressed a narrow
statutory construction issue to conclude an offender is “released from prison” at the
beginning of phase II of CIP. 926 N.W.2d at 395 (interpreti ng the term “release” in the
context of first-degree DWI conditional release and CIP). The Minnesota Supreme Court
only addressed phase II of the CIP, where offenders are under intensive supervision in the
community. Id. Because Bellanger Fohrenkam was ne ither admitted to CIP, nor had he
begun phase II of CIP, Heilman does not control. It is al so worth noting the court in
Heilman did not address due-process claims or cite to Hines at any point. For these reasons,
we are not convinced that Heilman overrules Hines, or that Heilman controls.
Next, Bellanger Fohrenkam asserts that the mandatory language in the CIP statute
contradicts this court’s conclusion in Hines that admission is “entirely discretionary.” The
United States Supreme Court expressed disapp roval of the emphasis courts were placing
on “shall,” “must,” and other words expressing mandatory actions in determining whether
a state has created a liberty interest. Sandin v. Conner, 515 U.S. 472, 479-84, 115 S. Ct.
2293, 2298-2301 (1995 ). Instead, the Court focused on th e “nature of deprivation” to
determine which interests ar e constitutionally protected. Id. Because our framework in
Hines focused on five aspects of the nature of deprivation under CIP, we are unpersuaded
by Bellanger Fohrenkam’s argument. 764 N.W.2d at 853-55.
Bellanger Fohrenkam then asks us to overrule our own precedent arguing that Hines
is “fundamentally flawed as a matter of law” and violates the Supremacy Clause as contrary
to Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1, 11, 99 S. Ct. 2100,
2105 (1979). In Greenholtz, the United States Supreme Court held the possibility of parole

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“provides no more than a mere hope that th e benefit will be obtained,” which does not
amount to a constitutionally-protected liberty interest. Id. Parole revocation, on the other
hand, provides a liberty interest to participate in normal life outside of prison. Id. at 9, 99
S. Ct. at 2105. “A constitutionally-protected liberty interest arises from a legitimate claim
of entitlement rather than simply an abstract need or desire or a unilateral expectation.”
Carrillo, 701 N.W.2d at 768. Because Bellanger Fohrenkam remains at the correctional
facility and has not been afforded any sort of freedom akin to that of a parolee, he has only
an anticipatory interest that is not afforded due process under Hines or Greenholtz. Hines,
764 N.W.2d at 855; Greenholtz, 442 U.S. at 10-11, 99 S. Ct. at 2105. As such, Hines is
consistent with federal case law and Bella nger Fohrenkam has not offered compelling
reasons to overrule our own precedent.
We conclude Bellanger Fohrenkam has no constitutionally-protected liberty interest
in admission to CIP. As such, we do not re ach the second inquiry of our due-process
analysis.
II. The DOC did not violate Bellanger Fohrenkam’s right to equal protection.

The federal and state constitutions guarantee equal protection under the law. U.S.
Const. amend. XIV, § 1; Minn . Const. art. 1, § 2. “An essential element of an equal
protection claim is that the persons claiming disparate treatment must be similarly situated
to those to whom they compare themselves. Similarly situated groups must be alike in all
relevant respects.” St. Cloud Police Relief Ass’n v. City of St. Cloud, 555 N.W.2d 318, 320
(Minn. App. 1996) (quotation and citations omitted), review denied (Minn. Jan. 7, 1997).
Because Bellanger Fohrenkam’s equal-protecti on claim does not involve a member of a

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suspect class or violation of a fundamental constitutional right, we ask whether there is a
rational basis for treating persons differently. Kolton v. County of Anoka, 645 N.W.2d 403,
411 (Minn. 2002).
Bellanger Fohrenkam appeared to allege in his habeas corpus petition that his right
to equal protection was violated as the DOC did not “treat him similarly to those who have
participated in CIP with first-degree cont rolled-substance convictions.” Bellanger
Fohrenkam repeats similar claims on appeal “due to the fact that other offenders have been
allowed to participate in the program for the same crime raises equal protection concerns.”
We understand Bellanger Fohrenkam’s argument to be that because other offenders with
the same crime have been admitted to CIP, he too should have b een admitted. As a
preliminary matter, Bellanger Fohrenkam has not provided us with the initial denial from
the DOC, or the two other denial notices he alleges CIP provided. Because the burden rests
on the challenger to demonstrate there is no rational basis for the discrimination, Bellanger
Fohrenkam has not met his burden. State v. Frazier, 649 N.W.2d 828, 832-34, 837 (Minn.
2002).
Even accepting Bellanger Fohrenkam’s proffered reasons for denial, those reasons
still fit within the DOC’s statutor y discretion for several reasons. Hines, 764 N.W.2d at
853 (noting discretionary criteria include: pr ior treatment program failures, correctional
facility adjustment and discipline record, supervision failures, criminal history,
documented aggravated-o ffense characteristics, victim im pact or community concern,
upward durational departures, residential ties to the state, mental health status, and health
and fitness status). Because of the myriad of discretionary factors, an equal-protection

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claim based merely on a group sharing the same type of offense is too general to qualify as
a “similarly situated group” under CIP. Si milarly situated groups must be alike in all
relevant aspects. St. Cloud Police Relief Ass’n , 555 N.W.2d at 320. Whether Bellanger
Fohrenkam’s first-degree controlled-substance offense presents community concerns is
essential to his equal-protection claim. Here, Bellanger Fohrenkam’s proffered reasons for
denial give rise to the community concern criterion because his first-degree controlled-
substance crime allegedly resulted in death for one of his customers. Bellanger Fohrenkam
also has an extensive criminal history and co rrectional facility discipline record. Any of
these criterion alone would have provided a ra tional basis for the DOC to exercise its
discretion to deny Bellanger Fohrenkam admission into CIP.
Affirmed.