Wayne Carl Nicholaison, petitioner, Appellant, vs. David Doth, Commissioner of Human Services, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-2146

Wayne Carl Nicholaison, petitioner,

Appellant,

vs.

David Doth, Commissioner of Human Services,

Respondent.

Filed April 28, 1998

Affirmed

Schumacher, Judge

Carlton County District Court

File No. C2961187

James S. Dahlquist, 270 Grain Exchange North Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Hubert H. Humphrey III, Attorney General, Steven J. Lokensgard, Assistant Attorney General, 900 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Michael O. Freeman, Hennepin County Attorney, Carolyn A. Peterson, Assistant County Attorney, Adult Services Section, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant Wayne Carl Nicholaison filed a petition for a writ of habeas corpus in district court challenging his commitment as a psychopathic personality. The court denied the petition. We affirm.

FACTS

In 1980, Nicholaison entered a woman's residence and raped her at knifepoint for three hours. He pleaded guilty and was sentenced to 50 months in prison. About 10 weeks after his October 1984 parole for the 1980 offense, he committed another violent sex offense. Nicholaison was convicted of criminal sexual conduct in the first degree and sentenced to serve 121 months. Nicholaison continued to exhibit sexual misconduct while in prison, sexually harassing prison personnel and a former prison guard.

A petition to commit Nicholaison as a psychopathic personality was filed in 1992. The district court (committing court) committed Nicholaison indeterminately as a psychopathic personality.

Nicholaison appealed his commitment to this court, which affirmed in an unpublished opinion. In re Nicolaison,[1] No. C1-92-613 (Minn. App. July 14, 1992). Nicholaison sought relief pursuant to a federal writ of habeas corpus. The eighth circuit upheld the federal district court's dismissal of the petition. Nicoliason v. Erickson, 65 F.3d 109 (8th Cir. 1995), cert. denied, 516 U.S. 1125 (1996). Nicholaison then sought discharge from his commitment. The district court denied his petition for discharge and this court affirmed. Nicolaison v. Gomez, C3-95-2586 (Minn. App. Apr. 30, 1996), review denied (Minn. July 10, 1996).

In 1997, Nicholaison filed a petition for writ of habeas corpus challenging his commitment. The district court dismissed his petition. Nicholaison appeals.

D E C I S I O N

A person who is restrained of liberty by reason of civil commitment may petition for a writ of habeas corpus to test the legality of the confinement. State ex rel. Anderson v. United States Veterans Hosp., 268 Minn. 213, 217, 128 N.W.2d 710, 714 (1964); see Minn. Stat. § 589.01 (1996) (regarding application for writ of habeas corpus). The court shall not construe the commitment chapter to abridge the right of any person to a writ of habeas corpus. Minn. Stat. § 253B.23, subd. 5 (1996). Appeals in habeas corpus proceedings are considered de novo; where no issues of fact are involved, the appellate court may determine the issues on the basis of the district court record. State ex rel. Hussman v. Hursh, 253 Minn. 578, 578 n.1, 92 N.W.2d 673, 673 n.1 (1958).

The scope of inquiry in a habeas case is limited. Anderson, 268 Minn. at 217, 128 N.W.2d at 714. The petitioner may challenge the jurisdiction of the court over the subject matter or person and may question whether the law was unconstitutional and therefore void and whether the continued detention violated the petitioner's constitutional rights, with particular attention to due process. Id. Habeas corpus may not be used as a substitute for an appeal or a cover for a collateral attack. State ex rel. Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959). Nor will a court reconsider issues addressed in an earlier appeal or habeas corpus action. See Thompson v. Wood, 272 N.W.2d 357, 358 (Minn. 1978) (holding petitioner, who had failed to file timely appeal from first order discharging writ of habeas corpus, may not relitigate issues in second petition).

Nicholaison first contends the committing court failed to make findings on one of the requisites for commitment: that he had an utter lack of power to control his sexual impulses. See State ex rel. Pearson v. Probate Court, 205 Minn. 545, 555, 287 N.W. 297, 302 (1939) (requiring habitual course of sexual misconduct, utter lack of power to control sexual impulses, and likelihood of causing harm in future for commitment as psychopathic personality), aff'd, 309 U.S. 270, 60 S. Ct. 523 (1940); Minn. Stat. § 253B.02, subd. 18b (Supp. 1997) (current version of sexual psychopathic personality statute). In ruling on Nicholaison's federal petition for habeas relief, the eighth circuit rejected this argument, and we decline to address it again. Nicolaison, 65 F.3d at 110.

Relying on Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780 (1992), Nicholaison next asserts that his commitment must be based on a finding of mental illness but contends that the committing court failed to make this finding. The Minnesota Supreme Court has rejected this argument and determined that commitments pursuant to the psychopathic personality statute comport with Foucha. In re Blodgett, 510 N.W.2d 910, 916 (Minn. 1994).

Nicholaison next contends that recent United States Supreme Court decisions show his commitment was unconstitutional as violating due process. He first relies on Kansas v. Hendricks, 117 S. Ct. 2072 (1997). But Hendricks cited the Pearson psychopathic personality standards with approval. Id. at 2080.

Nicholaison also cites In re Linehan, 557 N.W.2d 171 (Minn. 1996), vacated and remanded, 118 S. Ct. 596 (1997). Linehan is not relevant here because it addresses a challenge to the sexually dangerous person law, Minn. Stat. § 253B.02, subd. 18c(a) (Supp. 1997). Nicholaison was not committed as a sexually dangerous person.

Affirmed.

[ 1] In previous decisions, appellant's name was spelled without an "h." Papers submitted to this court in connection with this appeal, as well as the district court's order denying habeas corpus, include the "h." There is no explanation in the record before this court for this discrepancy.