State of Minnesota ex rel. Gerald Browneagle, Appellant, vs.

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0766

State of Minnesota ex rel. Gerald Browneagle,
Appellant,
vs.

Paul Schnell, Commissioner of Corrections,
Respondent.

Filed March 15, 2021
Affirmed
Johnson, Judge

Anoka County District Court
File No. 02-CV-19-6205

Cathryn Middlebrook, Chief Appellate Public Defender, Amy Lawler, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Keith Ellison, Attorney General, Steven R. Forrest, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Bjorkman, Pres iding Judge; Johnson, Judge; and Larkin,
Judge.
SYLLABUS
An offender whose conditiona l release has been revo ked does not have an
entitlement under state law to again be rele ased from prison to th e community if his
difficulty in finding agent-approved housing is due to reasons that are not largely outside
his control, he has not yet reached the end of the revocation period, and his caseworker is
making efforts to find an appropriate residence.

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OPINION
JOHNSON, Judge
Gerald Browneagle’s conditional release wa s revoked for 365 days or less after he
violated multiple conditions of his release. He was required to engage in chemical-
dependency treatment. Approximately four months before the end of the revocation
period, after he had completed treatment, he petitioned the district court for a writ of habeas
corpus, arguing that the commissioner had an obligation to release him from prison and
supervise him in the community. The district court denied the petition. We conclude that
the commissioner was not required by state la w to release Browneagle at the time he
petitioned for habeas relief. We also conc lude that the commissioner did not violate
Browneagle’s federal constitutional right to due process of law. Therefore, we affirm.
FACTS
In 2011, Browneagle pleaded guilty in Be ltrami County to four th-degree criminal
sexual conduct, in violation of Minn. Stat. § 609.34 5, subd. 1(c) (2006). The conviction
was Browneagle’s second conviction of criminal sexual conduct because he previously had
been convicted of first-degree criminal se xual conduct in Hennepin County in 1994. In
April 2011, the Beltrami County District Cour t imposed a sentence of 102 months of
imprisonment and a 99-year term of conditional release.
Browneagle was in prison until December 2014, when he was placed on intensive
supervised release (ISR). While on ISR, he was required to comply with various
conditions, including the condi tion that he maintain a residence approved by his

3
supervising agent. Because Browneagle had been designated a risk-level-III offender, he
was required to register as a predatory offender.
When Browneagle was first placed on ISR, he was released to a group residence
known as the Bemidji House, which is l eased and operated by the department of
corrections. In the summer of 2015, Brown eagle moved from the Bemidji House to a
private residence. In February 2016, his release was revoked for 179 days after he admitted
to four violations of his release conditions: leaving his residence without agent permission,
consuming alcohol at a bar, be ing terminated from sex-offende r treatment, and failing to
comply with certain other ISR conditions.
In August 2016, Br owneagle was released to the Bemidji House a second time.
Only one month later, however, his release was revoked for 150 days after he admitted to
another violation of his rele ase conditions: having two gues ts without his supervising
agent’s approval.
In January 2017, Browneagle’s prison sentence expired, and he began his
conditional-release term. One month later, he was released to the Bemidji House for a third
time. Two months after that, however, Browneagle’s release again was revoked when he
was found to have committed five violations of the conditions of his release: possessing
explicit photographs of a female friend on his cell phone, possessing a cell phone with
internet access, making contact with a minor without approval or s upervision, failing to
inform his agent of his activ ities, and possessing alcohol a nd marijuana at the Bemidji
House. This revocation was for 365 days. In July 2018, his revocation was extended for
“60 days or less” to “accommodate release planning.” The hearing officer’s written report

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stated that Browneagle would be placed in a department-leased residence when a vacancy
arose.
In August 2018, Browneagle was released to the Bemid ji House for a fourth time.
In February 2019, Browneagle ’s release again was revoked after he was found to have
committed five violations of the conditions of his release: possessing explicit photographs
of a female friend on his cell phone, hiding an unapproved guest in his closet, possessing
a mood-altering medication that had not been prescribed to him, possessing a dangerous
weapon (a knife), and failing to follow his ag ent’s instructions. The hearing officer
revoked his release for “365 days or less with credit from the date of arrest,” February 27,
2019, which implies a projected release date of February 27, 2020. The hearing officer
required Browneagle to comp lete chemical-dependency tr eatment if he was deemed
eligible. The hearing officer also found that Browneagle was “unamenable to supervision
and an ongoing risk to the public.”
Browneagle completed ch emical-dependency treatm ent on July 30, 2019.
Thereafter, a caseworker made efforts to find ap propriate housing for him. On July 31,
2019, the caseworker noted that she had asked a Ramsey County ISR supervisor to assume
supervision of Browneagle at a particular apartment in St. Paul. The Ramsey County
supervisor denied the request on the grounds that the apartment is a sober home and is
across the street from three schools. The Ramsey County supervisor noted that the location
would not be suitable even for a risk-level-III sex offender from Ramsey County.
In August 2019, the casewo rker contacted a corrections agent at the Bemidji House
to ask whether Browneagle coul d reside there again. The co rrections agent responded in

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the negative, stating that Browneagle “has burn t that bridge and was told last time that it
was his last opportunity.” In September 2019, Browneagle’s caseworker asked a Hennepin
County ISR supervisor to assume supervis ion of Browneagle. The Hennepin County
supervisor denied the request on the grounds that the proposed residence was within 500
feet of a school and is transitional in natu re. In October 2019, the caseworker contacted
Hennepin County again to request supervision of Brow neagle. The Hennepin County
supervisor denied the request on the grounds that the area of the proposed residence already
had too high of a concentration of risk-level-III sex offenders and that Browneagle did not
have “valid historical ties.”
Meanwhile, on September 10, 2019, Brown eagle’s attorney re quested a review
hearing before a department of corrections hearing officer because Browneagle had
completed chemical-dependency treatment. The hearing offi cer denied the request for a
hearing because Browneagle did not yet have an agent-approved release plan. The hearing
officer stated that a hearing would occur at or near the end of the 365-day revocation period
and that, until then, Browneag le should continue to work with his caseworker on
developing a release plan.
On November 4, 2019, Browneagle, with the assistance of a public defender,
petitioned the Anoka County District Court for a writ of habeas corpus. In an
accompanying memorandum, he presented two ar guments. First, he argued that his
continued incarceration at the Lino Lakes prison was in viola tion of his right under state
law to be released to the community because the commissioner was obligated to approve a
residence in the community and supervise him there. Second, he argued that his continued

6
incarceration at the Lino Lakes prison was in vi olation of his rights to procedural due
process and substantive due process under the Fourteenth Amendment to the United States
Constitution.
On November 20, 2019, the department re leased Browneagle to the Bemidji House
for a fifth time. In February 2020, the commi ssioner responded to Browneagle’s habeas
petition by arguing, in part, that his petition was moot be cause Browneagle had been
released from prison. In a reply memorandum, Browneagle argued, in part, that the district
court should not dismiss the petition as moot because of certain exceptions to the mootness
doctrine. In March 2020, the district court denied Browneagle’s petition on the ground that
it is moot, without resolving the merits of Browneagle’s arguments.
Browneagle appeals. He makes three argum ents. First, he argues that the district
court erred by dismissing the habeas petition as moot. Second, he renews the argument he
made to the district court that his incarcer ation at the Lino Lakes prison on November 4,
2019, violated his right under state law to be released to the community and supervised
there. Third, he renews the argument he made to the district court that his incarceration at
the Lino Lakes prison on Novemb er 4, 2019, violated his fe deral constitutional rights to
procedural due process and substantive due process.
ISSUES
I. Did the district court err by dismis sing Browneagle’s habeas petition on the
ground that it is moot?
II. When he filed his habeas petition, wa s Browneagle incarcerated in violation
of his right under state law to be released to the community?

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III. When he filed his habeas petition, wa s Browneagle incarcerated in violation
of his federal constitutional right to due process?
ANALYSIS
I.
Browneagle first argues that the district court erred by dismissing his habeas petition
as moot.
“An appeal is moot when ‘a decision on the merits is no longer necessary or an
award of effective relief is no longer possible.’” State ex rel. Ford v. Schnell, 933 N.W.2d
393, 401 (Minn. 2019) (quoting Dean v. City of Winona, 868 N.W.2d 1, 5 (Minn. 2015)).
But the mootness doctrine is a “‘flexible disc retionary doctrine,’” not a mechanical rule
that automatically results in dismissal. Dean, 868 N.W.2d at 4 (quoting State v. Rud, 359
N.W.2d 573, 576 (Minn. 1984)). For example, an appellate court may consider the merits
of an appeal that is technica lly moot if it “is ‘functionally justiciable’ and presents an
important question of ‘statewide significanc e that should be decided immediately.’” Id.
at 6 (quoting Rud, 359 N.W.2d at 576). “[A]n issue is functionally justiciable when the
record contains the raw materi al traditionally associated with effective judicial decision-
making, including a full presentation of both sides of the issues raised.” Ford, 933 N.W.2d
at 403-04. An appellate court applies a de novo standard of review to a district court’s
decision as to whether a petition for a writ of habeas corpus is moot. Id. at 404.
The supreme court’s opinion in Ford is instructive because the nature of the habeas
claim and the procedural history are fairly similar to this case. In Ford, the habeas
petitioner had been placed on su pervised release, but his release was revoked because he

8
violated his release conditions. Id. at 397. He later was placed on conditional release, but
he was transferred to a county jail because he did not have agent-approved housing in the
county in which he had been convicted. Id. His release was revoked and he was returned
to prison, where he remained for approximately one and one-half years, except for a two-
month period in a treatment program in a county jail. See id. at 397-98. He then petitioned
for a writ of habeas corpus. Id. at 398. While the case was pending in the district court
awaiting an evidentiary hearing, the commissioner released Ford to an approved residence
in Hennepin County, and the commissioner then argued that Ford’s release made his habeas
action moot. Id. The district court disagreed, considered the merits of the petition, and
granted relief. Id. at 398. This court reversed the di strict court on the ground that Ford’s
petition was moot. State ex rel. Ford v. Roy , No. A17-1895, 2018 WL 3097717, at *8
(Minn. App. June 25, 2018). But the supreme court granted review and, after briefing and
argument, determined that Ford’s petition was not moot and was ripe because his “release
is only temporary” and “he faces a nonspeculative threat of returning to prison.” Ford, 933
N.W.2d at 402-03. In additio n, the supreme court reasoned in the alternative that Ford’s
appeal satisfied one of the exceptions to the mootness doctrine because it presented “an
important issue of statewide significan ce” and was “functionally justiciable.” Id. at 403.
The supreme court rejected the commissioner’s request for a remand to the court of appeals,
saying, “To return this case for another round of appellate review would fully thwart the
very purpose of the writ,” which is “to speedily test the propriety of the restraint.” Id. at
406-07 (emphasis in original).

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In this case, the district court noted that Browneagle had been released after filing
his habeas petition and was residing at the Bemidji House. The district court analyzed the
mootness issue as follows:
Based on the record before this Court, there is no
indication that Petitioner’s return to prison is “imminent” or
“almost inevitable” or that he will be returned to prison and
held beyond his release date solely for the lack of an approved
residence. Rather, Petitioner is able to remain residing at
Bemidji House indefinitely or until he can locate other
housing, so long as he complie s with the conditions of ISR.
Petitioner’s release to the commun ity is only as temporary as
he chooses to make it, and not for lack of an approved
residence or through any fault of his agent, caseworker, or the
DOC.

Consequently, the district court concluded that Browne agle’s petition was moot and
dismissed the petition on that ground.
The district court’s analysis is in tensi on with the undisputed fact that Browneagle
had been released to the Bemidji House five times and had had his release revoked on four
occasions. Upon each revocation, Browneag le was required to obtain approval of a
residence before he could be released again. His caseworker had difficulty finding housing
that complied with all relevant criteria, as described above. The caseworker’s difficulty
arose in significant part from the fact that Browneagle repeatedly had violated the terms of
his release. But for purposes of the issue of mootness, the key question is whether effective
relief is possible, not whether relief is warranted. See Ford, 933 N.W.2d at 401.
We need not determine whether the di strict court erred by determining that
Browneagle’s petition was technically moot. Ev en if effective relief was not possible at
the time of the district court’s decision, the circumstances presented a compelling case for

10
application of the same exception that the supreme court invoked in Ford. Because
Browneagle has alleged a claim that is similar to the claim alleged in Ford, this case also
presents an issue of statewide importance. And because Browneagle’s asserted right to
release was fully briefed in the district c ourt and has been fully briefed on appeal, the
important issue is functionally justiciable. In addition, remanding the case to the district
court would tend to “thwart the very purpose of the writ,” which is “to speedily test the
propriety of the restraint.” Id. at 406-07 (emphasis in orig inal). Furthermore, for the
reasons stated below, Browneagle’s claims do not depend on an evidentiary hearing or on
fact-finding by the district court.
Thus, the district court erred by dismissi ng Browneagle’s habeas petition as moot.
Because the appeal is functionally justiciable, we will proceed to consider the merits of the
appeal instead of remanding it to the district court.1 See id.
II.
Browneagle argues that, in November 2019 , he was entitled to habeas relief on the
ground that he was being imprisoned in violation of his right under state law to be released
to the community in agent- approved housing. Specif ically, he argues that the
commissioner has a statutory obligation to supervise him in the community while he is on
conditional release and that th e commissioner must ensure his placement in approved

1We also are mindful that the supreme c ourt granted review, received briefs, and
heard oral arguments in State ex rel. Young v. Schnell , No. A17-1741, 2020 WL 614249
(Minn. App. Feb. 10, 2020), after this court twice had de termined that the petitioner’s
habeas claim had been mooted by his release from prison. See id. at *1-4; see also State
ex rel. Young v. Roy , No. A17-1741, 2018 WL 2407259, at *1-2 (Minn. App. May 29,
2018), stay vacated, rev’d and remanded (Minn. Oct. 15, 2019).

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housing instead of continuing to imprison him on the ground that approved housing is not
available. In response, th e commissioner argues that Br owneagle was not entitled to
release because he had not secured an a pproved residence and because the commissioner
was not holding him past his projected release date of February 27, 2020.
“A person imprisoned or othe rwise restrained of liberty . . . may apply for a writ of
habeas corpus to obtain relief from impris onment or restraint.” Minn. Stat. § 589.01
(2018). A habeas petition is an appropriat e means by which an incarcerated person may
“obtain relief regarding the custody imposed, or the length of confinement in a given case.”
State v. Schnagl, 859 N.W.2d 297, 301 (Minn. 2015). More specifically, a habeas petition
may be used to challenge the revocation of conditional release. See Ford, 933 N.W.2d at
405; State v. Schwartz, 628 N.W.2d 134, 138, 142 (Minn. 2001). At an evidentiary hearing
on a habeas petition, the district court “shall proceed, in a summary way, to hear allegations
and admit relevant evidence in support or ag ainst imprisonment or de tention and, at the
conclusion of the hearing, disp ose of the petitioner in accordan ce with law.” Minn. Stat.
§ 589.19 (2018). But an evidentiary hearing is not required if “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).
A.
Browneagle’s petition implicates the statut es and administrative rules that govern
conditional release of a person who is subject to a lifetime term of conditional release and
has been deemed a risk-lev el-III sex offender. The supr eme court has explained the
applicable general principles:

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Generally, a prison sentence in Minnesota consists of two
terms. The “term of imprisonment” is typically the first two-
thirds of the sentence, with a supervised-release term
comprising the remaining one-third of the sentence. See Minn.
Stat. § 244.101, subd. 1 (2018); see also Heilman v. Courtney,
926 N.W.2d 387, 394 (Minn. 20 19) (explaining that “felons
generally serve sentences in two parts”). Certain classes of
offenders, including some sex offenders, also must complete
an additional term of “conditional release.” See, e.g., Minn.
Stat. § 609.3455, subds. 6-7 (2018). “[C]onditional release of
sex offenders is governed by provisions relating to supervised
release.” Id., subd. 8(a) (2018); see also State ex rel. Duncan
v. Roy, 887 N.W.2d 271, 272 n.1 (Minn. 2016) (“Functionally,
conditional release is identical to supervised release.”).

Ford, 933 N.W.2d at 396-97.
If a person who has been convicted of crim inal sexual conduct “has a previous or
prior sex offense conviction,” the district court, at sentencing, “shall provide that, after the
offender has been released from prison, th e commissioner shall place the offender on
conditional release for the remainder of the offender’s life.” Minn. Stat. § 609.3455,
subd. 7(b) (2018). In that ev ent, the person’s release is subject to conditions that “may
include successful completion of treatment and aftercare in a program approved by the
commissioner, satisfaction of the release conditions specified in section 244.05,
subdivision 6, and any other conditions the commissioner considers appropriate.” Id.,
subd. 8(b). If the person “fa ils to meet any condition of release, the commissioner may
revoke the offender’s conditional release and orde r that the offender serve all or a part of
the remaining portion of the conditional release term in prison.” Id., subd. 8(c).
The commissioner of corrections is genera lly authorized to impose a wide variety
of conditions on conditional release. Minn. Stat. § 244.05, subd. 6(b), (c) (2018). The

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commissioner has promulgated administrative rules that specify general requirements for
all persons on supervised rel ease and provide for the possib ility of special conditions for
certain persons. Minn. R. 2940.2000-.2300. In general, if a person violates a condition of
conditional release, “the commissioner shall impose sanctions.” Minn. Stat. § 244.05,
subd. 6(d). When impo sing sanctions, the commissioner “may . . . continue the inmate’s
supervised release term, with or without modifying or enlarging the conditions imposed on
the inmate; or . . . revoke the inmate’s supervised release and reimprison the inmate for the
appropriate period of time.” Id., subd. 3; see also Ford , 933 N.W.2d at 397. Upon
reimprisonment, the person “shall be a ssigned a release date and a term of
reimprisonment.” Minn. R. 2940.3800. The term of reimprisonment may be as long as six
months if the violation is not a criminal offense, is a misdemeanor, or is a gross
misdemeanor, id., subp. A.-B., and it may be longer than six months if the violation is a
felony offense, if “there is a finding of risk to the public,” or if “repeated violations of the
conditions of release occur and the releas ee is determined to be unamenable to
supervision,” id., subp. C.-D.
A “projected release date” is “a date in th e future at which an inmate will be released
providing the inmate’s behavior is satisfactory ” and “the inmate is not considered to be a
risk to the public at the time of release.” Minn. R. 2940.0100, subp. 21. Administrative
rules require department person nel to begin planning for an offender’s release 120 days
before the projected release date. Minn. R. 2940.1200, subp. 1. A caseworker must assist
the offender in preparing a release plan, which allows for the assignment of a supervising
agent, who must “verify the appropriateness” of the plan. Minn. R. 2940.1200, subps. 1-3.

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“Within 45 to 60 days” of the projected release date, the caseworker shall schedule a review
of the release plan by a “program review team.” Id., subp. 4. The recommended release
plan “shall be reviewed by the executive officer of the hearings and release unit at least 30
days prior to the inmate’s established release date.” Minn. R. 2940.1300, subp. 1.
B.
Browneagle’s petition also implicates th e caselaw that governs the commissioner’s
discretion to revoke a person’s conditional release and continue to imprison him.
In State ex rel. Marlowe v. Fabian, 755 N.W.2d 792 (Minn. App. 2008), the habeas
petitioner, a risk-level-II sex offender, was placed on ISR after serving two-thirds of his
sentence. Id. at 793. He was released without pre-approved housing arrangements and
was unsuccessful in finding housing in the days immediately following his release. Id. His
release was revoked. Id. at 794. His ISR agent attempted to find suitable housing in various
counties but was unsuccessful, in part because local corrections agen cies were not fully
cooperative. Id. at 793. Marlowe petitioned for habeas relief, and the district court denied
his petition. Id. at 794. This court reversed and remanded. Id. at 797. We observed that,
in light of the commissioner’s administrative rules, prison officials have “authority to
restructure an offender’s conditions of release when the original conditions are
unworkable.” Id. at 796. We noted that it was “clear that a suitable residential placement
is available in a neighboring county.” Id. We reasoned that, “At the very least, when a
condition becomes unworkable at the time of release due to circumstances largely outside
the control of an offender, th e DOC must consider a restruct ure or modification of those
conditions.” Id. at 796-97. We concluded that “the DOC is required to reconsider its

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decision to revoke Marlowe’s release” and, specifically, that it “must consider restructuring
Marlowe’s release plan and must seek to develop a plan that can achieve Marlowe’s release
from prison and placement in a suitable and a pproved residence, whether in Washington
County or in a neighboring county.” Id. at 797.
In Ford, the habeas petitioner, a risk-lev el-III sex offender, was placed on
supervised release after serving two-thirds of his sentence. 933 N.W.2d at 397. He initially
was released to an agent-appr oved residence in the county of his conviction, and he
relocated to a private residence a few months later. Id. His release was revoked after he
violated the conditions of his supervised release. Id. After his prison term expired, he was
placed on conditional release but was transferre d to the county jail in the county of his
conviction because he did not have agent-approved housing. Id. His release was revoked
again, and he was returned to prison, initially for 90 days and later for another 90 days
because he did not have approved housing. Id. He was released to a county jail for two
months of chemical-dep endency treatment, but then was returned to prison, initially for
179 days and later for another 150 days, during which time the department unsuccessfully
attempted to find suitable housing. Id. at 397-98. Ford petitioned for habeas relief. Id. at
398. The district court denied his petition, but this court reversed and remanded. Id. (citing
State ex rel. Ford v. Roy, No. A16-1769 (Minn. App. Feb. 1, 2017) (order)). On remand,
the district court conducted an evidentiary hearing and c oncluded that the commissioner
had violated its own internal policies and this court’s Marlowe opinion. Id. at 400. The
district court granted relief in the form of an order that the commissioner “fully comply
with its policy and the dictates of Marlowe by treating [counties ot her than the county of

16
conviction] as Ford’s presumptive release jurisdiction” and to either “‘provide supervision
in that county, or modify Ford’s conditions of release.’” Id.
On appeal, the supreme court considered “whether the Department failed to adhere
to the law set forth in Marlowe, and if so, whether the relief granted is suited to the scope
of the violation.” Id. at 405-06 (quotations omitted). The supreme court recited this court’s
holding in Marlowe, with emphasis on our statement that the department “‘must consider
restructuring Marlowe’s releas e plan and must seek to d evelop a plan that can achieve
Marlowe’s release from prison and placement in a suitable and approved residence.’” Id.
at 406 (quoting Marlowe, 755 N.W.2d at 797) (emphasis in Ford). The supreme court also
noted this court’s statement that “the Department ‘has an obligation to fashion conditions
of release that are workable an d not impossible to satisfy.’” Id. (quoting Marlowe, 755
N.W.2d at 793). The supreme court affirmed the district court’s order, concluding that
“[t]he scope of the district court’s order co rresponds to the scope of the Department’s
violation of Marlowe.” Id. at 407-08.
C.
Browneagle relies primarily on the supreme court’s opinion in Ford and this court’s
opinion in Marlowe. The commissioner argues in respons e that the difficulty in securing
agent-approved housing was due to Browneagle ’s own conduct and that the obligations
imposed by those opinions had not yet arisen when Browneagle filed his habeas petition.
The central holding of Marlowe, which was reiterated in Ford, consists of three
principles. First, as a general matter, the depa rtment of corrections “‘has an obligation to
fashion conditions of release that are workable and not impossible to satisfy.’” Ford, 933

17
N.W.2d at 406 (quoting Marlowe, 755 N.W.2d at 793). Second, more specifically, “‘when
a condition [of release] become s unworkable at the time of release due to circumstances
largely outside the control of an offender, the [department] must consider a restructure or
modification of those conditions.’” Id. at 406 (emphasis omitted) (quoting Marlowe, 755
N.W.2d at 796-97). Third, if an offender’s release is frustrated by difficulties in finding an
appropriate residence and a supervising agent, “‘the [department] is required to reconsider
its decision to revoke [the offender’s] release’” and “‘ must consider restructuring [the
offender’s] release plan and mu st seek to develop a plan t hat can achieve [his] release
from prison and placement in a suitable and approved residence,’” either in the county of
conviction or another county. Id. at 406 (quoting Marlowe, 755 N.W.2d at 796-97)
(emphasis in Ford).
In this case, the department did not violate Marlowe and Ford for three reasons.
First, the difficulty in finding appr opriate housing for Browneagle was not “‘due to
circumstances largely outside [his] control.’” See id. at 406 (quoting Marlowe, 755
N.W.2d at 797). As described above, Browneagle was released to agent-approved housing
upon the expiration of his sentence. His conditional release was revoked four times
because he violated multiple conditions of his release othe r than the condition requiring
agent-approved housing. Unlike the offenders in Marlowe and Ford, Browneagle’s
difficulty in obtaining agent-approved housing as of November 2019 was due to his own
misconduct. Accordingly, the department’s obligation to “‘consider a restructure or
modification’” of Browneagle’s conditio ns of release was not triggered. See id. at 406
(quoting Marlowe, 755 N.W.2d at 796-97).

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Second, Browneagle had not yet reached the end of the revocation period when he
filed his habeas petition in November 2019. The department’s obligation under Marlowe
and Ford to “‘consider a restructure or modifi cation’” of Browneag le’s conditions of
release arises only if “‘a condition [of release] becomes unworkable at the time of release.’”
Id. at 406 (emphasis added) (quoting Marlowe, 755 N.W.2d at 796-9 7). Browneagle’s
conditional release was revoked for 365 days or less, effective February 27, 2019, which
meant that his projected release date was Fe bruary 27, 2020. Br owneagle petitioned for
habeas relief in early November 2019, more than three months before his projected release
date. Browneagle petitioned for habeas relie f before the time when his caseworker was
required to assign a supervising agent or schedule a review of his release plan. See Minn.
R. 2940.1200, subp. 2, 4. Browneagle asserts that, be cause he completed chemical-
dependency treatment on July 30, 2019, he was eligible to be released, and thus entitled to
be released, at that time. But his release was revoked for as long as 365 days, which means
that he was not entitled to be released soon er than 365 days. This case is unlike Ford, in
which the offender’s revocatio n was extended beyond the in itial projected release date,
without any apparent reconsideration of the conditions of the offender’s release. See Ford,
933 N.W.2d at 397-98. Because Browneagle had not yet reached “the time of release” in
November 2019, he cannot prove that the department was in violation of Marlowe and
Ford at that time. See Ford, 933 N.W.2d at 406.
Third, the relevant pe rsons in the department were in fact “‘reconsider[ing] its
decision to revoke [Browneagle’s] release,’” “‘consider[ing] restructuring [Browneagle’s]
release plan,’” and “‘seek[ing] to develop a plan that can achieve [his] release from prison

19
and placement in a suitable and approved residence,’” either in Beltrami County or in other
counties, such as Hennepin County and Ramsey County. See id. at 406 (emphasis omitted)
(quoting Marlowe, 755 N.W.2d at 796-97). As described above, Browneagle’s caseworker
sent multiple inquiries to ag ents in Beltrami County, He nnepin County, and Ramsey
County. During that time period, the caseworker was in communication with Browneagle
and his attorney and assisted them in submitting proposed plans. Browneagle asserts that
the department was not fulfilling its duty because a hearing officer stated that the hearings
unit would not “intervene with placement is sues” and would review his release planning
only at the end of the revocation period. That statement is consistent with the applicable
administrative rule. See Minn. R. 2940.1300, subp. 1.
Thus, Browneagle cannot pr ove that he is entitled to habeas relief on the ground
that, in November 2019, he was being imprisoned in violation of a right under state law to
be released to the community to agent-approved housing.
III.
Browneagle last argues that, in November 2019, he was entitled to habeas relief on
the ground that he was being imprisoned in violation of his federal constitutional rights to
procedural due process and su bstantive due process. The Fourteenth Amendment to the
United States Constitution provid es that no person ma y be deprived of “life, liberty, or
property without due process of law.” U.S. Const. amend. XIV, § 1.
A.
We begin by considering Browneagle’s claim of a violation of his federal
constitutional right to procedural due proce ss. To determine whether an imprisoned

20
offender has received due process, it is necessary to as k two questions: (1) “whether the
complainant has a liberty or pr operty interest with which the state has interfered” and, if
so, (2) “whether the procedures attendant upon that deprivation were constitutionally
sufficient.” Carrillo v. Fabian, 701 N.W.2d 763, 768 (Minn. 2005).
Browneagle argues that he was imprisoned in violation of his right to procedural
due process because, after he completed chemical-dependency treatment on July 30, 2019,
the department did not give him a “fair oppor tunity to contest his extended imprisonment
at an adversarial hearing.” Browneagle had had an adversar ial hearing in March 2019 in
connection with the latest re vocation of his cond itional release. He was given written
notice of his alleged violations, an eviden tiary hearing before a hearing officer,
representation by an attorney, and a revocation decision that is refl ected in a five-page
document, which stated that Browneagle’s conditional release was revoked for “365 days
or less.” In September 2019, he requested a review hearing, which was denied on the
ground that it was premature. The first question is whether Br owneagle’s federal
constitutional right to procedur al due process entitled him to an adversarial hearing in
September or November of 2019, before the end of the 365-day revocation period.
In Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 25 93 (1972), the United States
Supreme Court held that an offender whos e parole was subject to revocation had a
protected liberty interest that triggered a right to procedural due process. Id. at 487-89, 92
S. Ct. at 2603-04. In Marlowe, this court held that an o ffender whose conditional release
had been revoked for failure to have an approved residence and whose revocation period
had been extended beyond his projected release date had a pr otected liberty interest that

21
triggered a right to procedural due process. 755 N.W.2d at 794-95. Neither of those two
opinions speaks directly to th e situation in this case, in which an offender had his
conditional release revoked for misconduc t and was being impr isoned during the
revocation period without yet having reached his projected release date.
Browneagle’s interest in being released from prison is similar to the offenders in
Greenholtz v. Inmates of Nebras ka Penal & Correctional Complex, 442 U.S. 1, 99 S. Ct.
2100 (1979), who sought release on parole. Id. at 4-5, 7, 99 S. Ct. at 2102, 2104. The
Court stated that, to have a protected liberty interest, “a person clearly must have more than
an abstract need or desire fo r it” and “must have more than a unilateral expectation of it”
but, rather, must “have a legitimate claim of entitlement to it.” Id. at 7, 99 S. Ct. at 2103-04
(quoting Board of Regents v. Roth , 408 U.S. 564, 577, 92 S. Ct. 2701, 2709 (1972)). To
determine whether the offender had a protecte d liberty interest, the Court conducted two
inquiries. It first inquired into the nature of the interest and the nature of the decision-
making process. Id. at 7, 99 S. Ct. at 2103. The Court stated that “parole release and
parole revocation are quite different” from each othe r because “[t]here is a crucial
distinction between being deprived of a liberty one has, as in parole, and being denied a
conditional liberty that one desires.” Id. at 9, 99 S. Ct. at 2105. The Court reasoned that a
parole-revocation decision relies in significant part on “whether the parolee in fact acted in
violation of one or more co nditions of parole” while a parole-release decision “is more
subtle and depends on an am algam of elements, some of which are factual but many of
which are purely subjective appraisals by the Board members based upon their experience
with the difficult and sensitive task of evaluating the advisability of parole release.” Id. at

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9-10, 99 S. Ct. at 2105. The Court determined that the na ture of a release decision, by
itself, did not give rise to a protected liberty interest. Id. at 9-10, 99 S. Ct. at 2105.
The Greenholtz Court also inquired into the la nguage used in the state statute
governing parole release. Id. at 11-12, 99 S. Ct. at 2106. The statute in that case provided,
“Whenever the Board of Parole considers th e release of a committed offender who is
eligible for release on parole, it shall order his release unless it is of the opinion that his
release should be deferred because” of one of four specified reasons. Id. at 11, 99 S. Ct. at
2106. The Court determined that this language ga ve rise to a protected liberty interest
because “the expectancy of release provided in this statute is entitled to some measure of
constitutional protection,” but the Court “emphasize[d] that this statute has unique structure
and language” and that the issue “must be decided on a case-by-case basis.” Id. at 12, 99
S. Ct. at 2106. In a subsequent opinion, the Court explained the second inquiry as whether
state law uses “‘explicitly mandatory language ,’ in connection with the establishment of
‘specified substantive predicates’ to limit disc retion,” in which event state law gives rise
to a protected liberty interest. Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454,
463, 109 S. Ct. 1904, 1910 (1989) (quotations omitted).
In this case, the first Greenholtz inquiry is concerned with the nature of the interest
and the nature of the decision-making process. Greenholtz, 442 U.S. at 7, 99 S. Ct. at 2103.
Browneagle’s interest in release from reimprisonment is similar to Greenholtz’s interest in
being released on parole. See id. at 9, 99 S. Ct. at 2105. Likewise, the department’s
release-planning process “is more subtle and depends on an amalgam of elements,”
including “the difficult and sensitive task of evaluating the advisability of . . . release.” See

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id. at 9-10, 99 S. Ct. at 2105. Thus, the nature of Browneagle’s interest in being released
from reimprisonment and the nature of the deci sion do not give rise to a protected liberty
interest. See id.
The second Greenholtz inquiry is concerned with whether state law creates a
protected liberty interest, id. at 11-12, 99 S. Ct. at 2106, which depends on whether state
law uses “explicitly mandatory language in connection with the establishment of specified
substantive predicates to limit discretion,” Thompson, 490 U.S. at 463, 109 S. Ct. at 1910
(quotation omitted). As stated above, if a Minnesota offender’s conditional release has
been revoked, a hearing officer is not required to review the offender’s release plan until
30 days before the projected release date. Minn. 2940.1300, subp. 1. Thus, under state
law, Browneagle would not have had a protected liberty interest in a review hearing until
January 2020.
Thus, in November 2019, Browneagle did not have a protected liberty interest in
being released. In light of that determination, he did not have a procedural-due-process
right to a review hearing at that time. Therefore, he cannot establish a violation of a right
to procedural due process.2

2We are mindful of caselaw questioning whether the Greenholtz analysis still is
valid after Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293 (1995), which criticized and
cast some doubt on the second part of Greenholtz. See id. at 479-8, 115 S. Ct. at 2298-
2300; see also Carrillo, 701 N.W.2d at 770-72. We are persuaded that both parts of the
Greenholtz analysis retain their vitality in cases concerning release or revocation because
the Sandin analysis is limited to cases concerni ng prison discipline or internal prison
regulations. See, e.g., Carver v. Lehman, 558 F.3d 869, 872-73 n.5 (9th Cir. 2009), cert.
denied, 558 U.S. 973 (2009); Ellis v. District of Columbia , 84 F.3d 1413, 1417-18 (D.C.
Cir. 1996). In any event, it makes no differen ce in this case becaus e we have concluded

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B.
We next consider Browneagle’s claim of a violation of his federal constitutional
right to substantive due process. The doct rine of substantive due process “protects
individuals from certain arbitrary, wrongful government actions regardless of the fairness
of the procedures used to implement them.” In re Linehan, 594 N.W.2d 867, 872 (Minn.
1999) (quotations omitted). The supreme court has noted that it is “reluctant to expand the
concept of substantive due process because guideposts for responsible decision-making in
this unchartered area are scarce and open-ended.” State v. Hill, 871 N.W.2d 900, 905-06
(Minn. 2015) (quotation omitted).
If a person challenges the conduct of an executive-branch offi cer, the relevant
question is whether the officer’s co nduct “‘shocks the conscience,’ Rochin v. California, 342 U.S. 165, 172, 72 S. Ct . 205, 209 (1952), or interferes with rights ‘implicit in the
concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325-26, 58 S. Ct. 149, 152
(1937).’” Hill, 871 N.W.2d at 906 (quoting United States v. Salerno, 481 U.S. 739, 746,
107 S. Ct. 2095, 2101 (1987)). “[O]nly the most extreme instances of governmental
misconduct can satisfy the exacting shocks-the-conscience standard, with these acts often
evincing deliberate and unjustif iable injurious intent.” Id. (quotations and alterations
omitted).
In this case, the department held Browne agle in prison after his conditional release
had been revoked. The department did so pursuant to a decision of a hearing officer, which

that neither part of the Greenholtz analysis leads to a determination that Browneagle had a
protected liberty interest in a review hearing in November 2019.

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was based on evidence presented at an evidentiary hearing. At that hearing, Browneagle
admitted to violating the conditions of his release by possessing explicit photographs of a
female friend on his cell phone, hiding an unap proved guest in his closet, possessing a
mood-altering medication that had not been prescribed to him, and failing to follow his
agent’s instructions, and the hearing office r found that he also possessed a dangerous
weapon. As a consequence, the hearing officer revoked Browneagle’s conditional release
for 365 days or less. During the revoca tion period, Browneagle ’s caseworker was
attempting to find him suitable housing in the community. Browneagle did not have a right
under state law to a review he aring until 30 days before the end of the revocation period,
which would have been in late January 20 20. The imprisonment of Browneagle in
November 2019 in these circumstances does not shock the conscience and is not a betrayal
of rights implicit with ordered liberty. See Hill, 871 N.W.2d at 906.
Thus, Browneagle cannot establish a viol ation of his right to substantive due
process.
DECISION
Browneagle did not have a right in Novemb er 2019 to be released from prison and
live in the community in agent-approved housing.
Affirmed.