State of Minnesota, ex rel. Wallace James Beaulieu, petitioner, Appellant, vs. Joan Fabian, Commissioner of Corrections, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-589

 

State of Minnesota, ex rel. Wallace James Beaulieu, petitioner,

Appellant,

 

vs.

 

Joan Fabian, Commissioner of Corrections,

Respondent.

 

Filed December 14, 2004

Reversed and remanded

Kalitowski, Judge

 

Anoka County District Court

File No. C2-03-9278

 

John M. Stuart, State Public Defender, Benjamin J. Butler, Assistant Public Defender, 2221 University Avenue Southeast, Suite 425, Minneapolis, MN 55414 (for appellant)

 

Mike Hatch, Attorney General, Omar A. Syed, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, MN 55101 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Wallace James Beaulieu challenges the district court's decision denying his petition for a writ of habeas corpus without an evidentiary hearing.  Appellant contends that his right against self-incrimination was implicated when he was mandated by the Department of Corrections to either complete a Sex Offender Treatment Program (SOTP) while his conviction for failure to register as a sex offender was pending on appeal, or be penalized by an extended incarceration of 150 days.  We remand for an evidentiary hearing to determine if appellant's right against self-incrimination was implicated by the SOTP.

D E C I S I O N

            The text of the Fifth Amendment provides that no person "shall be compelled in any criminal case to be a witness against himself."  U.S. Const., amend. V.  The prohibition

not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also "privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."

 

Minnesota v. Murphy, 465 U.S. 420, 426, 104 S. Ct. 1136, 1141 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 322 (1973)).  "Prison inmatesincluding sex offendersdo not forfeit the privilege at the jailhouse gate."  McKune v. Lile, 536 U.S. 24, 55, 122 S. Ct. 2017, 2036 (2002). 

            In 2002, the United States Supreme Court heard a challenge to the Sexual Abuse Treatment Program (SATP) run by the Kansas Department of Corrections.  Id. at 31-32, 122 S. Ct. at 2023-24.  As part of SATP, participating inmates were required to complete and sign an "Admission of Responsibility" form, in which they accepted responsibility for their criminal convictions, and completed a sexual history detailing all prior sexual activities, regardless of whether the activities constituted uncharged criminal offenses.  Id. at 30, 122 S. Ct. at 2023.  The information obtained was not privileged and could be used against participants in subsequent criminal proceedings.  Id.

            If an inmate refused to participate in SATP, the inmate would lose his privilege status.  Id.  The loss of status meant a reduction in privileges including reduction in visitation rights, earnings, work opportunities, ability to send money to family, canteen expenditures, and access to a personal television, and a transfer from a medium-security prison to a maximum-security prison.  Id. at 31, 122 S. Ct. at 2023.

            Justice Kennedy, writing for a plurality, determined that SATP was supported by a legitimate penological objective of rehabilitation and that the consequences for nonparticipation in it do not combine to create a compulsion sufficient to burden the inmate's Fifth Amendment right.  Id. at 36, 42, 122 S. Ct. at 2026, 2029.  Justice Kennedy followed the standard used in due process challenges to prison conditions to evaluate the habeas corpus petition:  penalties must constitute "atypical and significant hardship[s] on [inmates] in relation to the ordinary incidents of prison life."  Id. at 37, 122 S. Ct. at 2026.  Finally, Justice Kennedy stated that consequences for failure to participate in SATP did not include extended incarceration or impact on eligibility for good time credits or parole.  Id. at 38, 122 S. Ct. at 2027.

            Justice O'Connor, in casting the deciding vote, disagreed with the plurality's "atypical and significant hardship" standard for compulsion but concurred in the judgment because she did not believe that the consequences the inmate faced rose to the level of an unconstitutional compulsion.  Id. at 48-49, 122 S. Ct. at 2032-33.  She cautioned however, that "[t]he penalties potentially faced in these caseslonger incarceration and executionare far greater than those we have already held to constitute unconstitutional compulsion in the penalty cases.  Indeed, the imposition of such outcomes as a penalty for refusing to incriminate oneself would surely implicate a ‘liberty interest.'"  Id. at 52, 122 S. Ct. at 2034-35.

            Justice Stevens, writing for the dissent, characterized the penalty of moving the inmate to a maximum security prison once he refused to participate in SATP, as "unquestionably" violative of the inmate's Fifth Amendment right.  Id. at 56, 122 S. Ct. at 2036.  Justice Stevens noted that an order from the state to participate in SATP was "inherently coercive" and that the penalty was a "mandated official response to the assertion of the privilege."  Id. at 60, 122 S. Ct. at 2039.

            The McKune Court determined that participation in the Kansas SATP did not violate McKune's privilege against self-incrimination.  Id. at 48, 122 S. Ct. at 2032.  But, by our reading of McKune, a majority of the justices on the Supreme Court have concluded that extended incarceration is an unconstitutional sanction when an inmate violates a prison disciplinary rule as a result of the prisoner's assertion of his privilege against self-incrimination.  Id. at 38, 122 S. Ct. at 2027.

              Here, the district court denied appellant's motion to vacate the 150-day sentence concluding that appellant's right against self-incrimination was not implicated by the SOTP.  Appellant contends that the district court erred in denying his request for an evidentiary hearing because a factual dispute exists as to whether his right against self-incrimination is implicated.  We agree.

            A writ of habeas corpus, although a writ of right, does not issue as a matter of course, and it is incumbent upon relator to set forth in his petition sufficient facts to establish a prima facie case for discharge.  State ex rel. Fife v. Tahash, 261 Minn. 270, 271, 111 N.W.2d 619, 620(1961).  A prima facie case is established when a party produces "enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor."  Black's Law Dictionary 1209 (7th ed. 1999).  But these allegations must be "‘more than argumentative assertions without factual support.'"  Beltowski v. State, 289 Minn. 215, 217, 183 N.W.2d 563, 564 (1971). 

            Here, appellant alleged that he knew, based on a previous experience in SOTP, that he would be required to discuss the facts surrounding his failure to register conviction.  Appellant also contended that the SOTP program would require him to incriminate himself because the SOTP director noted in an affidavit that one of the goals of the program is for inmates to identify, challenge, and change abusive, criminal, and dysfunctional thoughts and behaviors.  Respondent submitted an affidavit of the SOTP program director that contradicted appellant by alleging that appellant's participation in the SOTP would focus on his past sexually abusive offenses rather than his failure-to-register offense.  The district court concluded that respondent's affidavit was conclusive of the issue and denied appellant's request for an evidentiary hearing.

            The findings of a trial court considering a petition for writ of habeas corpus are entitled to great weight.  State ex rel. Holecek v. Ross, 472 N.W.2d 185, 186 (Minn. App. 1991) (citing State ex rel. Kons v. Tahash, 281 Minn. 467, 474-75, 161 N.W.2d 826, 832 (1968)).  But an "evidentiary hearing is required whenever material facts are in dispute which have not been resolved in the proceedings resulting in conviction and which must be resolved in order to determine the issues raised on the merits."  State ex rel. Roy v. Tahash, 277 Minn. 238, 244,152 N.W.2d 301, 305 (1967).  A petition that alleges defects of some substance should not be summarily dismissed merely because of what may clearly appear in the record to the contrary.  State ex rel. Dinneen v. Tahash, 272 Minn. 7, 15, 136 N.W.2d 847, 852 (1965).  Appellant supports his petition based on his own knowledge and experiences in SOTP and on evidence regarding the goals of SOTP.  While respondent may dispute appellant's allegations, a fact issue remains that appellant's right against self-incrimination may be implicated by SOTP. 

            In light of the fact that a majority of the McKune Court stated that extended incarceration constituted an unconstitutional compulsion, we conclude that appellant's allegations raise a factual dispute as to the implication of appellant's privilege against self-incrimination by his participation in SOTP.  Therefore, appellant is entitled to an evidentiary hearing and we reverse the district court's denial of appellant's motion to vacate the 150-day sentence and remand this matter for an evidentiary hearing.

            Reversed and remanded.