Joseph R. Spikula, petitioner, Appellant, vs. Hoyt A. Brill, Respondent.

may not be cited except as provided by

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

 STATE OF MINNESOTA

 IN COURT OF APPEALS

C897-2085

Joseph R. Spikula, petitioner,

Appellant,

vs.

Hoyt A. Brill,

Respondent.

Filed May 26, 1998

Affirmed

Mulally, Judge*

Swift County District Court

File No. CX-97-305

Joseph R. Spikula, P.O. Box 500/1937, Appleton, MN 56208 (pro se appellant)

Jeff M. Zalasky, Erstad & Reimer, P.A., 1000 Northland Plaza, 3800 West 80th Street, Bloomington, MN 55431 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mulally, Judge.

Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

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

 MULALLY, Judge

Prisoner Joseph Spikula, who pleaded guilty to crimes in Colorado and is incarcerated in Minnesota pursuant to a contract between Colorado and the town of Appleton, Minnesota, appeals from the district court's denial of his petition for a writ of habeas corpus. We affirm.

FACTS

Joseph Spikula pleaded guilty in 1991 to three felony counts in Colorado: second-degree forgery, theft, and criminal impersonation.

In June 1995, Spikula was transferred to a penal facility in Texas. Representatives from the Texas facility took custody of Spikula from Colorado law enforcement officers in Texarkana, Arkansas. Two years later, Spikula was transferred to Minnesota. Employees of the private corporation that maintains the Prairie Correctional Facility in Appleton, Minnesota transported Spikula to the facility. Spikula is currently incarcerated there.

Spikula filed a petition for a writ of habeas corpus, a motion for a temporary restraining order, and a motion for appointment of counsel. The district court denied Spikula's requested relief, and Spikula appealed.

D E C I S I O N

  1. On review of a district court's denial of a petition for a writ of habeas corpus, an appellate court affords great deference to the district court's findings of fact, but reviews questions of law de novo. State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991). The petitioner has the burden of proof that his detention is illegal. Payne v. Erickson, 404 N.W.2d 277, 279 (Minn. 1987). Spikula contends that the contract between Colorado and Appleton, Minnesota, providing for incarceration of Colorado prisoners in Appleton, is invalid, and thus Colorado's transfer of him to Minnesota had the effect of a pardon or commutation. Spikula asserts that the contract was invalid in four respects - that the statute authorizing Colorado to make such contracts does not specify political subdivisions of other states, that the statute does not allow for placement in privately-operated prisons, that authorization arising from that statute conflicts with federal law, and that the contract interferes with a right to appear at a Colorado parole hearing in person.

Colorado Revised Statute § 17-1-105 reads:

(1) The executive director [of the Department of Corrections] shall have and exercise:

* * * *

(f) The authority to enter into contracts and agreements with other jurisdictions, including other states, the federal government, and political subdivisions of this state, for the confinement and maintenance of offenders sentenced to imprisonment by the courts of this state and the authority to reimburse such jurisdictions for the expenses incurred by such jurisdictions in the confinement and maintenance of said offenders.

Spikula asserts, without citation to authority, that the statute does not authorize agreements with political subdivisions of other states because they are not expressly listed as one of the "other jurisdictions."

The statute does authorize agreements with political subdivisions of other states. To find otherwise would render the words, "other jurisdictions, including" meaningless. That is, the statute does not limit the Colorado Department of Corrections to making agreements only with other states, the federal government, and political subdivisions of Colorado. Instead, those listed jurisdictions are examples of other jurisdictions. The city of Appleton is a political subdivision of Minnesota. It is an "other jurisdiction" within the meaning of Colo. Rev. Stat. § 17-1-105. Therefore the contract is not invalid as a contract outside the types of jurisdictions provided for in the statute, and thus Spikula's detention is not illegal on that basis.

Colo. Rev. Stat. § 17-1-105 does not prohibit placing prisoners in privately operated penal facilities. Therefore, Spikula's detention is not illegal for violating the statute in that respect.

Spikula also contends that the contract between Colorado and Appleton violates federal law and so is invalid. First, Spikula avers that 4 U.S.C. § 112 (1997) requires states to draft a compact to address the transfer of an inmate from a facility in one state to another, and that the transfer here lacked such a compact, and thus was invalid. 4 U.S.C. § 112, however, merely notes that Congress gives its consent to states to enter agreements or compacts to address crime prevention and enforcement of criminal laws. It does not place any conditions or restrictions on transfer of prisoners from one state to another. Thus, 4 U.S.C. § 112 does not render Spikula's detention illegal.

Second, Spikula contends that the transfer violated 18 U.S.C. § 3182 (1997) because it was completed without an "Extradition Proceeding," and later notes that without an indictment, 18 U.S.C. § 3182 requires determination of probable cause by a magistrate. Spikula was not extradited, however, since he was not present in Minnesota to answer to any charges in Minnesota, and thus 18 U.S.C. § 3182 does not apply, and so does not render Spikula's detention illegal.

Spikula alleges that he has a liberty interest in appearing in person at a parole hearing in Colorado, and that incarceration in Minnesota interferes with that right. Spikula notes that, while incarcerated in Minnesota, he is allowed to participate in Colorado parole hearings "via telephone." Colorado parole hearings occur in the locality where the inmate is incarcerated. Colo. Rev. Stat. § 17-2-201 (10). Colorado statutes do not specify that the inmate is entitled to an in-person hearing. The telephone conference satisfies Spikula's right to participate in a parole hearing. His detention does not interfere with that right, and thus his detention is not illegal on that basis.

2. Spikula alleges that the transport from Texas to Minnesota violated his rights under 4 U.S.C. § 112 and 18 U.S.C. § 3182, and amendments 4, 5, 9, and 14 to the constitution, and by doing so, amounted to a kidnapping.

None of the statutes or constitutional amendments referenced by Spikula indicate that interstate transfer of a prisoner must be performed by public employees, rather than private employees of a corporation that operates a facility in which the prisoner will eventually be detained. Spikula's transport did not violate his rights. We affirm the district court's denial of Spikula's habeas corpus petition.

3. The standard of review on appeal from an order denying a motion for a temporary restraining order is clear abuse of discretion. Earth Protector, Inc. v. City of Hopkins, 474 N.W.2d 454, 455 (Minn. App. 1991).

To warrant the grant of a temporary restraining order, a movant must show (1) the relationship between the parties before the dispute arose; (2) the harm movant may suffer if the order is denied, compared to the harm inflicted on defendant if the order is granted; (3) the likelihood that the movant will prevail on the merits; (4) public policy considerations; and (5) administrative burdens imposed on the court if the order issues. M.G.M. Liquor Warehouse Int'l, Inc. v. Forsland, 371 N.W.2d 75, 77 (Minn. App. 1985).

Spikula seeks an order temporarily restraining respondent, the corporation that employs respondent, and the Colorado Department of Corrections from any physical contact with him, and from removing him from the state of Minnesota. Spikula asserts that he has a substantial likelihood of success on the merits of his habeas petition.

Spikula's habeas petition does not have a substantial likelihood of success on the merits, as discussed above. We affirm the district court's denial of Spikula's motion.

4. A petitioner for habeas corpus relief is not entitled to appointed counsel. State ex rel. Baker v. Utecht, 218 Minn. 553, 554-55, 16 N.W.2d 750, 751-52 (Minn. 1944). Whether to grant a request for appointment of counsel is a decision within the trial court's discretion. Id. at 555, 16 N.W.2d at 752.

The statute governing petitions for post-conviction relief provides for appointment of counsel for indigent petitioners. Minn. Stat. § 590.05 (1996). The statute governing petitions for writs of habeas corpus does not so provide. Minn. Stat. § 589.01-.35 (1996).

Spikula was not entitled to appointment of counsel, and so the district court clearly acted within its discretion in denying Spikula's motion.

Affirmed.