                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-0817

                            Jerry Duwenhoegger, Sr., petitioner,
                                       Appellant,

                                            vs.

                                    State of Minnesota,
                                       Respondent.

                                 Filed December 21, 2015
                                        Affirmed
                                      Larkin, Judge

                             Washington County District Court
                                File No. 82-CV-15-1723


Jerry Duwenhoegger, Sr., Bayport, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul,
Minnesota (for respondent)


         Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Bjorkman,

Judge.



                          UNPUBLISHED OPINION

LARKIN, Judge

         Appellant challenges the district court’s denial of his application to proceed in

forma pauperis and his accompanying petition for a writ of habeas corpus. We affirm.
                                         FACTS

       Appellant Jerry Duwenhoegger, Sr. was convicted of two counts of conspiracy to

commit first-degree murder and sentenced to consecutive prison terms of 190 and 180

months.    Duwenhoegger appealed to this court, raising several issues, including

ineffective assistance of counsel. State v. Duwenhoegger, No. C5-99-1237, 2000 WL

821483, at *1 (Minn. App. June 27, 2000), review denied (Minn. Sept. 13, 2000). This

court affirmed Duwenhoegger’s convictions, but declined to reach the merits of his

ineffective-assistance-of-counsel claim because “[t]he record before us does not explain

the decisions of Duwenhoegger’s trial counsel.”         Id. at *5.   This court preserved

Duwenhoegger’s right to pursue a claim of ineffective assistance of counsel in a petition

for postconviction relief. Id. Eight years later, this court issued an opinion affirming a

denial of postconviction relief.    Duwenhoegger v. State, No. A07-1484, 2008 WL

2966852, at *1 (Minn. App. Aug. 5, 2008), review denied (Minn. Oct. 21, 2008). In that

case, Duwenhoegger “argue[d] that the district court erred by (1) imposing separate

sentences for each count of conspiracy because his actions constituted a single behavioral

incident with a single criminal objective and (2) failing to make written findings.” Id.

       In another case, Duwenhoegger was convicted of burglary, interference with a 911

call, and trespass. In his direct appeal, Duwenhoegger argued that “the jury instructions

on the interference with a 911 call deprived him of his right to a unanimous verdict by

allowing the jury to convict based on alternate theories of guilt.” State v. Duwenhoegger,

No. C3-99-569, 2000 WL 108903, at *1 (Minn. App. Feb. 1, 2000), review denied (Minn.

Mar. 14, 2000).     This court affirmed Duwenhoegger’s convictions.          Id.   In 2008,


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Duwenhoegger filed a motion to dismiss the charges, arguing that the district court did

not have subject-matter jurisdiction.        In a 2009 order opinion, this court treated

Duwenhoegger’s motion as a request for postconviction relief and affirmed the district

court’s order denying his motion. Duwenhoegger v. State, No. A08-0852 (Minn. App.

Apr. 13, 2009).

       In April 2015, Duwenhoegger filed an application to proceed in forma pauperis

(IFP) and a petition for a writ of habeas corpus.             In his petition, Duwenhoegger

challenged both his conspiracy convictions and his burglary conviction, arguing that his

trial counsel was ineffective because counsel failed to inform him of a plea offer from the

state in the conspiracy case and failed to prepare for the burglary case. Duwenhoegger

made several other arguments, including that the district court judge violated the rules of

criminal procedure by failing to inquire regarding whether Duwenhoegger was aware of

the plea offer; the judge improperly threatened to sequester the jury; the judge fell asleep

during trial; the prosecutor and Duwenhoegger’s trial attorney “conspired to deny

[Duwenhoegger] of any & all witnesses & physical documentary evidence”; the judge

made erroneous evidentiary rulings during trial; the prosecutor fabricated evidence; he

was entrapped; a state’s witness committed perjury; and that his felony-level offenses

should have been charged by indictment.

       The district court issued a form order entitled, “Order Dismissing or Restricting

Inmate In Forma Pauperis Action,” finding that the action “is frivolous or malicious”

because “[i]t has no arguable basis in law or in fact, or . . . [i]t is substantially similar to a

previous claim brought against the same party that resulted in an adjudication on the


                                                3
merits.” The district court dismissed the action with prejudice. Duwenhoegger appealed.

By order, this court found that although “[t]he district court did not actually deny the

habeas petition,” the “denial of Duwenhoegger’s application [to proceed in forma

pauperis] effectively determined the action, and a judgment of dismissal was entered on

April 21, 2015.” This court therefore construes this appeal as one taken from final

judgment.

                                      DECISION

       An inmate may proceed IFP if the inmate satisfies specific statutory criteria.

Minn. Stat. § 563.02, subd. 2 (2014). But the district court must dismiss an action in

which an inmate seeks to proceed as a plaintiff IFP with prejudice if it is frivolous or

malicious. Minn. Stat. § 563.02, subd. 3(a) (2014).

              In determining whether an action is frivolous or malicious,
              the court may consider whether: (1) the claim has no arguable
              basis in law or fact; or (2) the claim is substantially similar to
              a previous claim that was brought against the same party,
              arises from the same operative facts, and in which there was
              an action that operated as an adjudication on the merits.

Id., subd. 3(b) (2014). A district court has broad discretion to grant IFP relief and will

not be reversed absent an abuse of discretion. Maddox v. Dep’t of Human Servs., 400

N.W.2d 136, 139 (Minn. App. 1987).

       A writ of habeas corpus is a civil remedy by which a person can obtain relief from

unlawful restraint or imprisonment. See Minn. Stat. §§ 589.01-.35 (2014); see also

Breeding v. Swenson, 240 Minn. 93, 96, 60 N.W.2d 4, 7 (1953) (stating that habeas

corpus “is a civil remedy, separate and apart from the criminal action”).



                                              4
             Ordinarily, the only questions open to review on habeas
             corpus after conviction of a crime are whether the court had
             jurisdiction of the crime and the defendant; whether the
             sentence was authorized by law; and, in certain cases,
             whether [the] defendant was denied fundamental
             constitutional rights. The writ may not be used as a substitute
             for a writ of error or appeal or a motion to correct, amend, or
             vacate nor as a means to collaterally attack the judgment.

Breeding v. Utecht, 239 Minn. 137, 139-40, 59 N.W.2d 314, 316 (1953). “The burden is

on the petitioner to show the illegality of his detention.” Case v. Pung, 413 N.W.2d 261,

262 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). On review of a district

court’s denial of a petition for a writ of habeas corpus, questions of law are reviewed de

novo. Aziz v. Fabian, 791 N.W.2d 567, 569 (Minn. App. 2010).

      Duwenhoegger argues that the district court should have granted his IFP

application because his habeas claims are not frivolous and have not previously been

adjudicated on the merits. Duwenhoegger primarily argues that his trial counsel was

ineffective in his conspiracy case for failing to inform him of the state’s plea offer.

Duwenhoegger contends that this claim has a basis in law. He relies on Lafler v. Cooper,

which involved “ineffective assistance of counsel [that] caused the rejection of a plea

leading to a trial and a more severe sentence,” 132 S. Ct. 1376, 1388 (2012), and

Missouri v. Frye, which held that “defense counsel has the duty to communicate formal

offers from the prosecution to accept a plea on terms and conditions that may be

favorable to the accused.” 132 S. Ct. 1399, 1408 (2012). An ineffective-assistance-of-

counsel claim may be raised in a habeas petition. See Rompilla v. Beard, 545 U.S. 374,

380, 125 S. Ct. 2456, 2462 (2005) (reviewing a claim of ineffective assistance of counsel



                                            5
raised by petition for writ of habeas corpus under the federal habeas statute); State ex rel.

Adams v. Tahash, 276 Minn. 545, 545, 148 N.W.2d 562, 563 (1967) (reviewing a claim

that relator was denied competent counsel at his trial raised by petition for writ of habeas

corpus).

       Although Duwenhoegger’s ineffective-assistance-of-counsel claim has a basis in

law, the district court also reasoned that the claim has no basis in fact. We agree. This

court declined to reach the merits of Duwenhoegger’s ineffective-assistance-of-counsel

claim in his 2000 conspiracy appeal because the factual record was inadequate.

Duwenhoegger, 2000 WL 821483, at *5.                    However, this court preserved

Duwenhoegger’s right to pursue a claim of ineffective assistance of counsel in a petition

for postconviction relief. Id. There is nothing in the record to show that Duwenhoegger

exercised that right and thereby developed a factual record that would enable

consideration of his ineffective-assistance-of-counsel claim. Thus, the district court did

not err by finding that Duwenhoegger’s claim of ineffective assistance of counsel in his

conspiracy case has no basis in fact.

       Duwenhoegger also argues that he was denied due process, the district court judge

failed to confirm that Duwenhoegger knew about the plea offer, the district court judge

fell asleep during trial, the district court judge improperly threatened to sequester the

jury, the district court judge made erroneous evidentiary rulings during trial, he was

entrapped, he is being cruelly and unusually punished, and an indictment was necessary

for the felony-level offenses. Duwenhoegger’s assignment of nonconstitutional error is

an improper collateral attack on his underlying criminal conviction. See Breeding, 239


                                             6
Minn. at 139-40, 59 N.W.2d at 316. We have considered Duwenhoegger’s remaining

assignments of constitutional error and determine that they do not provide a basis for

relief. See Ture v. State, 681 N.W.2d 9, 20 (Minn. 2004) (rejecting pro se arguments

without detailing consideration of each argument).

         Lastly, we address Duwenhoegger’s argument that he should be granted relief “in

the interest of justice.” Duwenhoegger does not support his request with legal authority

or explain why the interest of justice requires relief in this case. He cites Rompilla v.

Beard, but that case does not address relief in the interest of justice. 545 U.S. at 380, 125

S. Ct. at 2462 (stating that “Rompilla’s entitlement to federal habeas relief [under the

federal habeas corpus statute] turns on showing that the state court’s resolution of his

claim of ineffective assistance of counsel . . . resulted in a decision that was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” (quotation omitted)). We do not

discern a basis to grant Duwenhoegger’s unsupported request for review in the interest of

justice. See Minn. R. Civ. App. P. 103.04 (stating that appellate courts “may review any

other matter as the interest of justice may require”).

         Duwenhoegger has submitted numerous documents demanding his immediate

release from prison and other relief, but those filings are not authorized by the appellate

rules and Duwenhoegger has not established that he is entitled to any relief from this

court.

         Affirmed.




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