                             This opinion will be unpublished and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
                                        A16-0499

                                    Darrel Mckee, petitioner,
                                           Appellant,

                                                vs.

                                         Steve Hammer,
                                          Respondent.

                                     Filed August 29, 2016
                                           Affirmed
                                         Larkin, Judge

                               Washington County District Court
                                   File No. 82-CV-16-653


Darrel Mckee, Bayport, Minnesota (pro se appellant)

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


          Considered and decided by Rodenberg, Presiding Judge; Larkin, Judge; and Smith,

Tracy M., Judge.

                            UNPUBLISHED OPINION

LARKIN, Judge

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

pauperis (IFP) and dismissal of his attendant petition for a writ of habeas corpus. We

affirm.
                                          FACTS

       In 2000, appellant Darrel Mckee pleaded guilty to second-degree murder in

Hennepin County District Court. When pronouncing Mckee’s sentence, the district court

stated: “You are, by sentence of this court, committed to the Commissioner of Corrections

for 300 months; 200 months to be served, and 100 months on supervised release, so long

as you become entitled to that through the prison rules.”

       In February 2016, Mckee filed an application to proceed IFP and a petition for a

writ of habeas corpus in Washington County District Court, based on the commissioner of

correction’s extension of his supervised-release date by 132 days. In his petition, Mckee

alleged that the district court did not adequately explain that the commissioner could extend

the prison portion of his sentence if he committed disciplinary offenses while in prison. He

asserted that the commissioner, as an executive officer, is constitutionally prohibited from

having any role in sentencing and thus lacks authority “to impose and enforce an extended

132 days ‘disciplinary confinement period’ . . . beyond the two-third minimum term of

imprisonment sentence imposed by the Court.” In an amended petition, Mckee further

asserted that the extended term of imprisonment is inconsistent with his plea agreement

and that the commissioner applied an inappropriate standard of proof when extending his

imprisonment based on minor disciplinary violations.1




1
 On appeal, Mckee does not argue that the commissioner used an improper standard of
proof; nor does he contend that his conduct did not violate prison disciplinary rules.

                                             2
       The district court ruled that the action was frivolous because the “[p]ronouncement

of [a] sentence is for [the] sentencing court” and dismissed the action with prejudice.

Mckee appeals.

                                      DECISION

       An inmate may proceed IFP if he satisfies specific statutory criteria. Minn. Stat.

§ 563.02, subd. 2 (2014). But if an inmate seeks to proceed as a plaintiff IFP in a frivolous

or malicious action, the district court must dismiss the action with prejudice. Minn. Stat.

§ 563.02, subd. 3(a) (2014). “In determining whether an action is frivolous or malicious,

the court may consider whether: . . . the claim has no arguable basis in law or fact . . . .”

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”).

              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).



                                              3
       “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).

       Mckee makes three arguments on appeal. First, Mckee argues that, because the

sentencing court did not properly explain the supervised-release portion of his sentence as

required under Minn. Stat. § 244.101, subd. 2 (1998), the supervised-release term of his

sentence is not conditioned on his compliance with disciplinary rules.

       When a district court pronounces an executed sentence for a felony, the court:

              shall explain . . . the amount of time the defendant will serve
              on supervised release, assuming the defendant commits no
              disciplinary offense in prison that results in the imposition of a
              disciplinary confinement period. The court shall also explain
              that the amount of time the defendant actually serves in prison
              may be extended by the commissioner if the defendant
              commits any disciplinary offenses in prison and that this
              extension could result in the defendant’s serving the entire
              executed sentence in prison. The court’s explanation shall be
              included in a written summary of the sentence.

Minn. Stat. § 244.101, subd. 2.

       Mckee contends that he may challenge the sentencing court’s explanation of his

sentence in a habeas action. He relies on State v. Schnagl, 859 N.W.2d 297, 303-04 (Minn.

2015), a case in which the supreme court held that an inmate may obtain judicial review of

the commissioner’s administrative decisions regarding implementation of a judicially

imposed sentence by filing a petition for a writ of habeas corpus. However, Mckee’s

challenge to the district court’s explanation of his sentence is essentially a challenge to the



                                              4
sentence itself, which cannot be raised in a habeas petition. See Utecht, 239 Minn. at 139-

40, 59 N.W.2d at 316 (stating that a writ of habeas corpus may not be used to collaterally

attack a sentence).

        Even if Mckee could challenge his sentence in this habeas proceeding, his challenge

would fail on the merits because he does not establish that a district court’s failure to

explain the supervised-release term of a sentence precisely as required under Minn. Stat. §

244.101, subd. 2(3), renders the sentence invalid. In fact, the statute that requires the

district court to explain the supervised-release term also provides that “[n]otwithstanding

the court’s explanation of the potential length of a defendant’s supervised release term, the

court’s explanation creates no right of a defendant to any specific, minimum length of a

supervised release term.” Minn. Stat. § 244.101, subd. 3 (1998). That language suggests

that a district court’s failure to provide the statutory advisory does not change the

conditional nature of a supervised-release term. See Carrillo v. Fabian, 701 N.W.2d 763,

773 (Minn. 2005) (concluding that although an inmate has a liberty interest in the inmate’s

supervised-release date, an inmate has no right to a particular supervised-release date).

Moreover, although the district court’s sentencing explanation could have been more

precise, the district court advised Mckee that the supervised-release portion of his sentence

was contingent on him “becom[ing] entitled to [it] through the prison rules.” That advisory

conveyed that failure to comply with prison rules could impact Mckee’s supervised-release

term.

        McKee’s second argument is that, because the commissioner has extended the

length of his imprisonment for disciplinary violations, the commissioner has imposed a


                                             5
sentence or extended his sentence in violation of the separation of powers under Minn.

Const. art. III, § 1. The commissioner’s extension of Mckee’s imprisonment does not

violate the separation of powers under Minn. Const. art. III, § 1. Minn. Stat. § 244.05,

subd. 1b(a) (2014), provides that an inmate shall not serve a supervised release term until

completion of the inmate’s term of imprisonment and “any disciplinary confinement period

imposed by the commissioner due to the inmate’s violation of any disciplinary rule adopted

by the commissioner.”       In State v. Schwartz, the supreme court held that the

commissioner’s statutory authority over supervised and conditional release does not violate

the separation of powers. 628 N.W.2d 134, 139, 141 (Minn. 2001). The supreme court

reasoned that in deciding to revoke conditional release and reincarcerate a parolee, the

commissioner “does not alter the sentence of the court or impose a new sentence, but

merely executes a condition within the parameters set by the court for [that person’s]

commitment to the commissioner.” Id. at 140.

       Similarly, the commissioner’s imposition of disciplinary confinement in this case

did not alter the underlying sentence or impose a new sentence, because Mckee’s 100-

month supervised-release term was conditioned on Mckee not having any prison

disciplinary violations that resulted in disciplinary confinement.           Because the

commissioner had the authority to delay Mckee’s supervised-release date under his power

to administer Mckee’s judicially imposed sentence, the commissioner did not violate the

separation of powers.

       Mckee’s third argument is that, because the sentencing court did not adequately

explain the supervised-release portion of his sentence, he did not understand that he may


                                            6
have to serve more than 200 months in prison if he violated prison disciplinary rules and

that his guilty plea was therefore unintelligent and invalid. Mckee’s attempt to challenge

the validity of his guilty plea is a challenge to his conviction, which cannot be raised in a

habeas petition. See Utecht, 239 Minn. at 139-40, 59 N.W.2d at 316 (stating that a writ of

habeas corpus may not be used to collaterally attack a judgment).

       Because Mckee’s habeas claim has no arguable basis in law or fact, the district court

did not abuse its discretion by determining that the action is frivolous.        Under the

circumstances, the district court was required to dismiss the action. See Minn. Stat.

§ 563.02, subd. 3(a) (providing that an action filed by an inmate seeking to proceed IFP

“shall be dismissed with prejudice if it is frivolous”). We therefore affirm.

       Affirmed.




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