Joseph Edwin Harju, Petitioner, vs. Joan Fabian, Commissioner, et al., Respondents.

Joseph Edwin Harju, Petitioner, vs. Joan Fabian, Commissioner, et al., Respondents. A05-1820, Court of Appeals Unpublished, August 8, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1820

 

Joseph Edwin Harju,

Petitioner,

 

vs.

 

Joan Fabian, Commissioner, et al.,

Respondents.

 

Filed August 8, 2006

Affirmed

Ross, Judge

 

Washington County District Court

File No. C4-05-2899

 

Mike Hatch, Minnesota Attorney General, 1800 North Central Life Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Richard L. Varco, Jr., Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101-2127 (for respondent)

 

Joseph Edwin Harju, OID #205468, MCF-Stillwater, 970 Pickett Street North, Bayport, MN 55003-1490 (pro se)

 

            Considered and decided by Wright, Presiding Judge; Shumaker, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

Appellant Joseph Harju challenges the revocation of his conditional release in this appeal from an order denying his petition for a writ of habeas corpus.  Because we conclude that the district court properly denied Harju's petition for a writ of habeas corpus, we affirm.

FACTS

Joseph Harju pleaded guilty to two counts of third-degree criminal sexual conduct in May 2000.  The district court imposed two consecutive 36-month sentences of incarceration.  The state conditionally discharged Harju from prison and placed him under intensive supervised release on March 22, 2004.  The terms of his conditional release prohibited Harju from having "direct or indirect contact with minors without prior documented approval" and from "purchas[ing] or possess[ing] sexually explicit materials."

Harju went to the Duluth Clinic for a medical appointment on the second floor in August 2004.  He included the appointment on his required weekly activity schedule, which he submitted to his supervised-release officer for authorization.  Harju, without legitimate purpose, stepped off an elevator on the fourth floor of the clinic, where the pediatric unit is located, and children were present on the floor.  Supervised-release officers went to Harju's apartment to question him about being on the pediatric floor, and they found a National Geographic magazine that contained at least one photograph of nude boys bathing each other.  A hearings-and-release officer of the Minnesota Department of Corrections conducted a hearing and found that Harju violated the terms of his conditional release by having indirect contact with minors without approval (being in the pediatric unit) and by possessing sexually explicit material (having the magazine photograph).  The officer revoked Harju's conditional release.

Harju petitioned the district court for a writ of habeas corpus, challenging his guilty plea, his sentence, and the revocation of his conditional release.  The district court denied Harju's petition.  Harju's appeal follows.

 

D E C I S I O N

Harju challenges the district court's denial of his petition for a writ of habeas corpus regarding the revocation of his conditional release.  Appellate courts reviewing a decision to revoke an offender's probationary release must determine whether there has been a clear abuse of discretion.  State v. Austin, 295 N.W.2d 246, 24950 (Minn. 1980).  We will not substitute our judgment for that of the revocation officer if the revocation officer's findings are properly supported by the record.  Vicker v. Starkey, 265 Minn. 464, 470, 122 N.W.2d 169, 173 (1963). 

An offender whose conditional release has been revoked may seek review of the revocation by petitioning the district court for a writ of habeas corpus.  See State v. Schwartz, 628 N.W.2d 134, 141 n.3 (Minn. 2001).  A denial of a writ of habeas corpus may be directly appealed.  Minn. Stat. § 589.30 (2004).  When reviewing a denial of a petition for a writ of habeas corpus, this court gives great weight to a district court's findings and will uphold those findings if they are reasonably supported by the evidence.  Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn. App. 1998), review denied (Minn. Nov. 17, 1998); State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991).

Harju argues that his conditional release was revoked in violation of his due-process rights because the hearings-and-release officer did not provide him with a copy of his weekly activity schedule, which he argues proves that he did not violate the terms of his conditional release.  Harju's argument is premised on his apparent misconception that his conditional release was revoked because he acted outside the terms of his activity schedule.  Nothing in the record indicates that the weekly activity schedule was submitted to or relied on by the hearings-and-release officer.  Instead, the hearings-and-release officer revoked Harju's conditional release because he had indirect contact with minors without authorization.

Harju admitted to being on the fourth floor of the Duluth Clinic where the pediatric unit is located, and the record shows that children were present.  Harju's argument regarding his due-process rights is unpersuasive; his rights have not been violated.  We conclude that the district court did not err by denying Harju's habeas petition for violating the no-contact provision of his conditional release.

Harju next argues that his possession of a National Geographic magazine that contains a photograph of nude boys bathing each other does not violate the term of his conditional release that prohibits him from purchasing or possessing sexually explicit material.  The hearings-and-release officer determined that "in this circumstance," the magazine constitutes sexually explicit material.  The district court's order denying Harju's habeas petition did not specifically address whether possession of the National Geographic magazine violates the terms of Harju's conditional release.  The state maintains that the photo of naked boys constitutes sexually explicit material, apparently because Harju is a convicted pedophile on intensive supervised release.

Because the district court did not address or make findings regarding the photograph in the National Geographic magazine, we decline to review whether it constitutes sexually explicit material for purposes of Harju's conditional release.  We note, however, that if it was the district court's intent that possession of any nude photos of children in any settingincluding otherwise generally inoffensive anthropological photographs in a National Geographic magazinewould constitute sexually explicit material and form the basis for revocation of conditional release, the terms of Harju's conditional release could have provided a broader description of the material he was prohibited from possessing.

Affirmed.