State ex rel. Marlowe v. Fabian, No. A08-0927.

• Decision Date: 16 September 2008
• Docket Number: No. A08-0927.
• Citation: 755 N.W.2d 792
• Parties: STATE of Minnesota, ex rel. Brian MARLOWE, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.
• Court: Minnesota Court of Appeals

755 N.W.2d 792

STATE of Minnesota, ex rel. Brian MARLOWE, petitioner, Appellant, v. Joan FABIAN, Commissioner of Corrections, Respondent.

No. A08-0927.

Court of Appeals of Minnesota.

September 16, 2008.

Lawrence Hammerling, Chief Appellate Public Defender, Richard A. Schmitz, Assistant Public Defender, St. Paul, MN, for appellant.

Lori Swanson, Attorney General, Ann K. Bloodhart, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by TOUSSAINT, Chief Judge; SHUMAKER, Judge; and STONEBURNER, Judge.

OPINION

TOUSSAINT, Chief Judge.

This expedited appeal is from a district court order denying the petition of appellant Brian Marlowe for a writ of habeas corpus challenging his continued incarceration after he reached his supervised release date. Because respondent Joan Fabian, Commissioner of Corrections, has an obligation to fashion conditions of release that are workable and not impossible to satisfy, we reverse and remand for further proceedings consistent with this opinion.

FACTS

Marlowe was sentenced in 2002 in Washington County to 108 months imprisonment for first-degree criminal sexual conduct. He reached his supervised-release date on December 6, 2007. As a level II sex offender, Marlowe was released on intensive supervised release (ISR). One of his conditions of release requires him to reside at an approved residence.

Several months prior to his scheduled release date, Marlowe made numerous attempts to secure suitable housing through classified advertisements, family, community agencies, and churches. But all attempts were unsuccessful, with some options falling through due to the possible presence of children. Marlowe's ISR agent also contacted two halfway houses in Stillwater, but neither would accept a level II sex offender.

Thus, when Marlowe was released from the Minnesota Correctional Facility in Rush City on December 6, 2007, he had no approved residence. On release, Marlowe was picked up by his ISR agent, who allowed him to cash a check, took him to eat at a fast-food restaurant, gave him the use of a cell phone, and provided him with a telephone book. Marlowe contacted two possible residences, but both rejected him. Marlowe also called his aunt, who lives in West St. Paul, but she declined to provide housing for him. When Marlowe told his ISR agent that he had no further options, the agent transported him to the Washington County jail.

Marlowe was thereafter charged with violating the conditions of his release, and a revocation hearing was held before a hearings and release unit (HRU) officer on December 18, 2007. Marlowe's ISR agent explained to the HRU officer that "the back up plan upon release was originally to send a supervision transfer to Ramsey County so that [Marlowe] could reside at [ReEntry Services] Eden where a bed had been previously approved for him," but that a Ramsey County ISR supervisor had rejected the plan. Marlowe's ISR agent, the HRU officer, and Marlowe's attorney each commented on the difficulty of finding a suitable residence for a sex offender placed on ISR in Washington County.

Marlowe's ISR agent, who is employed by the department of corrections (DOC) and supervises offenders in other metro-area counties, could not explain why he was not allowed to supervise Marlowe at a halfway house in Ramsey County. The agent indicated that he and his colleagues had "been given directives not to be supervising across county lines." Several statements were also made at the hearing to suggest that if Marlowe had been convicted in Anoka or Dakota County, he could have obtained placement at a halfway house in Ramsey County. Marlowe's attorney suggested that the HRU officer had the authority to allow Marlowe to reside in a DOC halfway house in another county and requested that Marlowe be transferred to such a facility. Marlowe's attorney further requested "restructure to a correctional halfway house."

The HRU officer found that Marlowe violated the terms of his release and that revocation was necessary because Marlowe "has no approved residence, and is a considerable risk to the public if he remains in the community with no housing" and that he "cannot be supervise[d] effectively if [he] has no residence." But the officer also admitted on the record: "I'd love to release you to a correctional half way house in another county, but I can't — my hands are tied."

On February 1, 2008, Marlowe filed a petition for a writ of habeas corpus, claiming deprivation of protected liberty interests because he was found in violation of an impossible condition. He further claimed that the DOC continued to violate his due-process rights by holding him in prison when halfway-house beds were available in neighboring metro-area counties. He requested that the district court immediately release him from custody to a DOC-funded halfway house. The district court denied Marlowe's petition, finding no due-process violations.

ISSUE

Must the DOC consider a restructuring of Marlowe's release plan?

ANALYSIS

On review of an order denying a petition for a writ of habeas corpus, this court gives great weight to the district court's findings of fact and will uphold the findings if they are reasonably supported by the evidence. Northwest v. LaFleur, 583 N.W.2d 589, 591 (Minn.App.1998), review denied (Minn. Nov. 17, 1998). Questions of law, however, are reviewed de novo. State ex rel. Guth v. Fabian, 716 N.W.2d 23, 26 (Minn.App.2006), review denied (Minn. Aug. 15, 2006). In general, this court will review the decision to revoke an offender's release for a clear abuse of discretion. Id. at 27.

A writ of habeas corpus is a statutory civil remedy available to obtain relief from unlawful imprisonment or restraint. Minn.Stat. § 589.01 (2006); Loyd v. Fabian, 682 N.W.2d 688, 690 (Minn.App.2004), review denied (Minn. Oct. 19, 2004). "A writ of habeas corpus may also be used to raise claims involving fundamental constitutional rights and significant restraints on a defendant's liberty or to challenge the conditions of confinement." Guth, 716 N.W.2d at 26-27.

An inmate in Minnesota has a liberty interest in his or her supervised release date that is protected by due process. See Carrillo v. Fabian, 701 N.W.2d 763, 773 (Minn.2005) (holding that DOC hearing officer must find by preponderance of evidence that offender committed disciplinary offense before date of supervised release can be extended). In general, due process requires notice and a meaningful opportunity to be heard before a fair and impartial decisionmaker. See Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972) (discussing due-process requirements for parole-revocation proceedings).

Marlowe argues that the DOC violated his due-process rights by finding him in violation of his conditions of release, by revoking his supervised release, and by not releasing him into the community on his release date but instead taking him to the Washington County jail.¹ But as the commissioner notes, there is a key difference between Marlowe's imprisonment for the underlying offense and the confinement that he is currently experiencing; namely, if he can find an approved residence, he will be released.

By statute, the DOC must release offenders after they serve their term of imprisonment and must supervise offenders during their period of supervised release. Minn.Stat. §§ 244.101, subds. 1, 2; 244.05, subd. 1; 243.05, subds. 2, 6 (2006). Marlowe asserts that in order to fulfill these responsibilities, the DOC must assist an offender in finding suitable housing, or at least provide an offender with a workable release plan that includes viable options for suitable housing. Marlowe claims that the DOC has shifted its responsibilities to offenders by requiring them to develop their own workable release plan.

The commissioner counters that the DOC has broad authority to impose conditions upon a predatory offender who is placed on ISR and released into the community. Minn.Stat. § 244.05, subd. 6. The commissioner asserts that the DOC is under no obligation to "omit such conditions merely because an offender cannot find a suitable residence outside of prison."

But the DOC's own policies and rules suggest that it has an obligation to assist an offender in finding residential placement. Minnesota Department of Corrections policy 203.010 C.2., which is entitled "Release Planning," requires an offender's case manager to "establish and document the jurisdiction where the initial request for agent will be sent" and requires that specific "release criteria must be addressed in ... sequential order." The last release criterion states:

If the offender has none of the community support systems or options listed in a) through d) above [which include a confirmed residence and confirmed...