Rask v. State

Jacob Karl Rask, petitioner, Appellant, v. State of Minnesota, Department of Human Services, et al., Respondents.

A13-2076

STATE OF MINNESOTA IN COURT OF APPEALS

Filed June 2, 2014

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

Affirmed

Larkin, Judge

Carlton County District Court

File No. 09-CV-13-1359

Jacob Rask, Moose Lake, Minnesota (pro se appellant)

Lori Swanson, Attorney General, Matthew Frank, Assistant Attorney General, St. Paul, Minnesota (for respondents)

Considered and decided by Worke, Presiding Judge; Cleary, Chief Judge; and Larkin, Judge.

UNPUBLISHED OPINION

LARKIN, Judge

Appellant challenges the district court's summary denial of his petition for a writ of habeas corpus. We affirm.

FACTS

In 2008, the district court civilly committed appellant Jacob Karl Rask to the Minnesota Sex Offender Program (MSOP) as a sexually dangerous person (SDP) and as a sexual psychopathic personality (SPP). This court affirmed the commitment. In re Civil Commitment of Rask, 2009 WL 511943, No. A08-1551 (Minn. App. Feb. 26, 2009).

On July 3, 2013, Rask petitioned the district court for a writ of habeas corpus. Rask alleged that he is illegally confined based on (1) ineffective assistance of counsel; (2) violation of his constitutional rights to due process under the Fourteenth Amendment; and (3) violation of his protection against cruel and unusual punishment under the Eighth Amendment. He requested appointment of counsel to represent him in the habeas proceedings. The district court denied Rask's petition without holding an evidentiary hearing. This appeal follows.

DECISION

A writ of habeas corpus is a statutory civil remedy available "to obtain relief from [unlawful] imprisonment or restraint." Minn. Stat. § 589.01 (2012). "Committed persons may challenge the legality of their commitment through habeas corpus." Joelson v. O'Keefe, 594 N.W.2d 905, 908 (Minn. App. 1999), review denied (Minn. July 28, 1999). "But the only issues the district court will consider are constitutional and jurisdictional challenges." Id.; see also Beaulieu v. Minn. Dep't of Human Servs., 798 N.W.2d 542, 547-48 (Minn. App. 2011) (Beaulieu I) (stating that "the supreme court regards habeas as a remedy only for a jurisdictional defect or a constitutional violation" and that "[t]he supreme court has refrained from expanding the scope of the writ of habeas corpus toencompass statutory violations that give rise to unlawful restraint"), aff'd, 825 N.W.2d 716 (Minn. 2013) (Beaulieu II). "Further, appellants are not entitled to obtain review of an issue previously raised." Joelson, 594 N.W.2d at 908. "[H]abeas corpus may not be used as a substitute for a writ of error or appeal or as a cover for a collateral attack upon a judgment of a competent tribunal which had jurisdiction of the subject matter and of the person of the defendant." State ex rel Thomas v. Rigg, 255 Minn. 227, 234, 96 N.W.2d 252, 257 (1959).

"A petitioner is entitled to an evidentiary hearing only if a factual dispute is shown by the petition." Seifert v. Erickson, 420 N.W.2d 917, 920 (Minn. App. 1988), review denied (Minn. May 18, 1988). "The district court's findings in support of a denial of a petition for a writ of habeas corpus are entitled to great weight and will be upheld if reasonably supported by the evidence." Aziz v. Fabian, 791 N.W.2d 567, 569 (Minn. App. 2010). Questions of law pertaining to a habeas petition are reviewed de novo. Id.

Rask assigns several errors to the district court's denial of his habeas petition. We address each in turn. But we first note that Rask argues throughout his brief that the district court erred by denying his petition without an evidentiary hearing. Because Rask does not allege a factual dispute, he was not entitled to an evidentiary hearing in district court. See Seifert, 420 N.W.2d at 920.

I.

Rask argues that the district court "abused its discretion in denying [him] an evidentiary hearing on the issue that [his] [c]ounsel was ineffective, as [his] [c]ounsel failed to [p]etition to the Minnesota Supreme Court issues wrongfully [d]ecided by theMinnesota Court of Appeals." This court has previously indicated that an ineffective-assistance-of-counsel claim is not properly raised in a habeas petition. See Beaulieu I, 798 N.W.2d at 551 (holding that an ineffective-assistance-of-counsel claim was not properly raised in a habeas corpus petition because it failed to allege a constitutional violation); see also Beaulieu II, 825 N.W.2d at 717 n.1 (refusing to decide "whether a person has a right to the effective assistance of counsel on appeal from an indeterminate civil commitment, and . . . if so, whether filing of a petition for a writ of habeas corpus is the proper procedure for asserting an ineffective-assistance-of-appellate-counsel claim" because the petitioner's substantive claims "fail[ed] on the merits or were waived"). Once again, a district court may only consider constitutional and jurisdictional challenges in a habeas corpus petition. Joelson, 594 N.W.2d at 908. And the right to counsel in the civil-commitment context is statutory, not constitutional. Compare U.S. Const. amend. VI (providing right to counsel in criminal cases), with Minn. Stat. § 253B.07, subd. 2c (2012) (providing right to counsel in civil-commitment proceedings).

Rask had an alternative method of challenging his attorney's performance. The supreme court has stated that "Minn. R. Civ. P. 60.02 provides a mechanism by which an indeterminately civilly committed individual can raise ineffective-assistance-of-counsel claims." Beaulieu II, 825 N.W.2d at 721 n.7. Rask argues that "[t]he problem . . . is that a motion under Rule 60.02 would not be timely." But Rask cannot obtain relief that is not clearly available under a habeas corpus petition simply because he failed to timely move the district court for relief under rule 60.02.

Moreover, Rask's ineffective-assistance-of-counsel claim fails on the merits. When analyzing an ineffective-assistance-of-counsel claim in a civil-commitment case, Minnesota courts apply the same standard that is used to analyze such claims in criminal cases, i.e. the Strickland test. In re Dibley, 400 N.W.2d 186, 190 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). To establish ineffective assistance of counsel under the Strickland test, a defendant must demonstrate that counsel's representation was "deficient" or "fell below an objective standard of reasonableness," and that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984). There is a strong presumption that counsel's representation was reasonable. State v. Pearson, 775 N.W.2d 155, 165 (Minn. 2009).

Appointed counsel in a civil commitment case "is not required to file an appeal . . . if, in the opinion of counsel, there is an insufficient basis for proceeding." Minn. Spec. R. Commit. & Treat. Act 9. And supreme court review of a civil-commitment order is entirely discretionary. Minn. R. Civ. App. P. 117, subd. 2. The district court made extensive findings of fact to support its conclusion that Rask met the criteria for commitment. On appeal to this court, Rask argued that his antisocial personality disorder was not a sufficient basis for his commitment. Rask, 2009 WL 511943, at *4. We rejected that claim, citing the court-appointed examiners and In re Linehan, 594 N.W.2d 867, 877-78 (Minn. 1999), in which the supreme court held that an antisocial personality disorder qualifies as a mental disorder for commitment purposes. Under these circumstances, it is unlikely that the supreme court would have granted a petition forreview. Rask therefore has not shown that his attorney's decision to forego a petition for further review by the supreme court "fell below an objective standard of reasonableness," and the district court did not err by denying Rask habeas relief on this issue.

Rask also argues that he "should be appointed effective counsel to represent him in these proceedings." Rask does not cite relevant legal authority to support his request for appointed counsel in this habeas corpus proceeding. An assignment of error in a brief based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997). For the reasons that follow, we discern no error.

Although "[a] patient has the right to be represented by counsel at any proceeding under [the Civil Commitment Act]," the right applies in civil-commitment cases only. Minn. Stat. § 253B.07, subd. 2c; see also In re Civil Commitment of Moen, 837 N.W.2d 40, 51 (Minn. App. 2013) (concluding that petitioner was not entitled to appointed counsel because "a rule 60.02 motion is not a 'proceeding' under the Commitment Act, as that term is used in section 253B.07, subdivision 2c"), review denied (Minn. Oct. 15, 2013). The statutes that govern habeas corpus proceedings do not provide for court-appointed counsel. See Minn. Stat. §§ 589.01-.35 (2012) (governing habeas corpus proceedings), 611.14 (2012) (listing the persons entitled to representation by public defender). And because habeas corpus is a civil matter, habeas corpus petitioners do not have a right to appointed counsel on appeal. See Stevens v. Redwing, 146 F.3d 538, 546 (8th Cir. 1998) (stating that pro se litigant has no constitutional right to counsel in civil case); Breeding v. Swenson, 240 Minn. 93, 96, 60 N.W.2d 4, 7 (1953) (holding thathabeas corpus "is a civil remedy, separate and apart from the criminal action"); Fratzke v. Pung, 378 N.W.2d 112, 114 (Minn. App. 1985) ("Neither the United States Supreme Court, the Minnesota Supreme Court, nor any Minnesota statutory authority grants habeas corpus petitioners a right to appointed counsel for appeals."), ...