This opinion will be unpublished and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

A15-1349

State of Minnesota, ex rel.

Demetris L. Duncan, petitioner,

Appellant,

vs. 

Tom Roy, Commissioner of Corrections,

Respondent.

Filed November 9, 2015

Affirmed

Chutich, Judge

Chisago County District Court

File No. 13-CV-14-865

Lori Swanson, Attorney General, Kelly S. Kemp, Assistant Attorney General, St. Paul, 

Minnesota; and

Jean M. Whitney, Department of Corrections, St. Paul, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer L. Lauermann, 

Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin, 

Judge. 
2

U N P U B L I S H E D O P I N I O N

CHUTICH, Judge

This expedited appeal is from an order denying a petition for a writ of habeas 

corpus that was filed by appellant Demetrius Duncan in Chisago County. The district 

court rejected Duncan’s claim that the respondent commissioner of corrections 

miscalculated his conditional release term by failing to reduce it by the entire supervised 

release term, whether he served that term in prison or in the community. In so ruling, the 

district court relied on this court’s decision in State v. Ward, 847 N.W.2d 29 (Minn. App. 

2014) (holding that an offender is not entitled to reduction of conditional release term by 

time served in custody after supervised release revoked), review granted and stayed 

(Minn. June 17, 2014), stay vacated and review denied (Minn. Mar. 17, 2015). Because 

the district court did not err in its decision to apply Ward and in its review of the 

commissioner’s administrative decision implementing Duncan’s sentence, we affirm.

FACTS1

Duncan was convicted of first-degree criminal sexual conduct, in violation of 

Minn. Stat. § 609.342 (1998), for an offense he committed in July 2000. See State v. 

Duncan, No. CX-01-1400, 2002 WL 378146 (Minn. App. Mar. 12, 2002), review denied

(Minn. May 14, 2002). He was sentenced on May 24, 2001, to 196 months in prison and 

five years of conditional release, as mandated by Minn. Stat. § 609.109, subd. 7(a) 

(1998).

 

1

The facts appear undisputed, and Duncan does not challenge the findings made by the 

district court in its June 22, 2015 order denying his habeas petition. Only the relevant 

facts are repeated here.
3

Duncan was released from custody on his scheduled supervised release date, 

August 18, 2011. Because he could not find an approved residence that satisfied the 

conditions of his release, he was returned to custody and his release was revoked. Based 

on his continued inability to secure an approved residence, he remained in custody and 

served only one day of supervised release in the community. By letter dated

September 4, 2012, the Department of Corrections notified Duncan that his conditional 

release date was extended from August 18, 2016, to December 30, 2021.

Duncan filed this petition for a writ of habeas corpus in Chisago County on 

September 24, 2014. In November 2014, Duncan located approved housing, and on 

December 11, 2014, he was released in the community, where it appears he has remained.

On June 22, 2015, the district court issued an order denying Duncan’s petition for 

a writ of habeas corpus, based on this court’s decision in Ward. The court concluded 

that, as in Ward, the time that Duncan spent in prison during his supervised release term 

may not be subtracted from his conditional release term and that the commissioner 

properly calculated Duncan’s conditional release term. Duncan appeals.

D E C I S I O N

As a threshold matter, the commissioner urges this court to hold that Duncan’s 

current claims are precluded by res judicata. The commissioner contends that Duncan’s 

claims regarding the calculation of his conditional release term were considered on the 

merits and rejected by the district court in an order filed on January 3, 2013, denying an 

earlier habeas petition filed by Duncan. See Duncan v. Roy, No. 13-CV-12-1007 (Minn. 

Dist. Ct. Jan. 3, 2013). We reject this contention for the following reasons.
4

Res judicata may preclude a petitioner from re-litigating issues decided against 

him in a previous habeas proceeding. See Thompson v. Wood, 272 N.W.2d 357, 358 

(Minn. 1978) (citing State ex rel. DuFault v. Utecht, 220 Minn. 431, 19 N.W.2d 706 

(1945)). But res judicata is a defense that must be raised in pleadings, see Minn. R. Civ. 

P. 8.03, and a failure to raise the affirmative defense may operate as a waiver. Beutz v. 

A.O. Smith Harvestore Prods., Inc., 431 N.W.2d 528, 532 n.3 (Minn. 1988). We decline 

to apply the doctrine of res judicata here because it was not raised or considered in the 

district court and was first raised in the respondent’s brief. It is also unclear whether the 

claims addressed by the district court in the prior order are identical to the claims raised 

in the current habeas petition. The case law has changed since 2013, with the supreme 

court’s decision in State v. Schnagl, 859 N.W.2d 297 (Minn. 2015) and this court’s 

decision in Ward, and Duncan has not had an opportunity to respond to the 

commissioner’s assertion of the defense.

Regarding the merits of his habeas claim, Duncan contends that he is entitled to a 

reduction of his conditional release term by his supervised release term, whether he 

served that time in custody or in the community. The controlling conditional release 

statute provides that “after the person has completed the sentence imposed . . . the person 

shall be placed on conditional release for five years, minus the time the person served on 

supervised release.” Minn. Stat. § 609.109, subd. 7(a) (1998).2 We review the district 

 

2 While this provision requiring conditional release for sex offenders has been 

renumbered several times, the statutory language reducing the conditional release term by 

the “time the person served on supervised release” has been in effect since 1993. See

1993 Minn. Laws ch. 326, art. 9, § 9, at 2089 (adding conditional release to section 
5

court’s interpretation and application of a statute de novo. Rud v. Fabian, 743 N.W.2d 

295, 298 (Minn. App. 2007), review denied (Minn. Mar. 26, 2008). 

The district court denied Duncan’s petition, relying on this court’s decision in 

State v. Ward. Ward involved an appeal by the state from an order granting the 

defendant’s motion for correction of sentence under Minn. R. Crim. P. 27.03, subd. 9. 

This court held that when an offender’s supervised release is revoked and he is returned 

to prison, he is not actually on supervised release and therefore not entitled to a reduction 

of conditional release by the time spent in custody after revocation. Ward, 847 N.W.2d 

at 34.

The supreme court granted Ward’s petition for further review and stayed further 

proceedings pending its decision in Schnagl. After Schnagl was released,3the supreme 

court issued an order in Ward vacating its previous grant of review and denying further 

review “without prejudice to the filing of a petition for a writ of habeas corpus in the 

district court.”

 

609.346, subd. 5); 1998 Minn. Laws ch. 367, art. 6, § 6, at 731 (renumbering conditional 

release provision as section 609.109, subdivision 7(a)); 2005 Minn. Laws ch. 136, art. 2, 

§ 21, at 931 (renumbering conditional release provision as section 609.3455, subdivision 

6, and increasing term to ten years). 

3

In Schnagl, the supreme court specifically declined to reach the merits of Schnagl’s 

claim that he was entitled to a reduction of his conditional release term by time spent on 

supervised release, whether he served that time in custody or in the community. Rather, 

the decision narrowly held that the proper procedure to obtain judicial review of an 

administrative decision regarding the expiration date of an offender’s supervised or 

conditional release term is by a petition for a writ of habeas corpus. Schnagl, 859 

N.W.2d at 303–04, 304 n.9.
6

Given this language in the supreme court’s order denying further review, both 

parties question the continuing viability of Ward. Duncan contends that Ward’s analysis

runs counter to the plain language of the relevant statutes and cites several reasons why 

its reasoning is incorrect. The commissioner, on the other hand, urges this court to follow 

Ward, but he also submits additional legal arguments to bolster his position and to 

support the result ultimately reached in Ward. 

After carefully considering each party’s arguments concerning the continuing 

viability of the Ward decision, we conclude that Ward was correctly decided and that its 

reasoning applies to the arguments raised by Duncan in this habeas proceeding. Because 

the supreme court did not reach or comment on the merits of Ward, this court’s holding 

in Ward remains undisturbed. Accordingly, we are bound to follow Ward, a published 

decision of this court involving the same statutory language at issue in this case. See 

State v. M.L.A., 785 N.W.2d 763, 767 (Minn. App. 2010) (stating that the court of 

appeals “is bound by supreme court precedent and the published opinions of the court of 

appeals”), review denied (Minn. Sept. 21, 2010). 

In Ward, this court concluded that “the reference in [the statute] to time ‘served on 

supervised release’ is ambiguous because [Ward] served his term of imprisonment and 

began serving his supervised release, but his supervised release was revoked and he was 

returned to prison.” 847 N.W.2d at 33. Ward explained that “[u]nder these 

circumstances, time ‘served on supervised release’ could be reasonably interpreted to 

mean either all of the time remaining in [Ward’s] executed sentence after he began 
7

serving his supervised release or only the time when [Ward] was released from prison 

before his supervised release was revoked.” Id. 

This court then applied statutory rules of construction to ascertain legislative 

intent, including “the purpose of the law, the consequences of a particular interpretation, 

legislative history, and administrative interpretations of the statute.” Id. Based on these 

considerations, the Ward court concluded that the “legislature intended conditional 

release to serve the purpose of maintaining supervision of a sex offender for a fixed 

period after the offender leaves prison and returns to the community” and that 

“[r]educing conditional release by only the amount of time that an offender served in the 

community on supervised release, rather than by the amount of time that the offender was 

originally ordered to serve on supervised release, accomplishes this purpose.” Id. at 34. 

We find that Ward controls here.

4

 We therefore conclude that the commissioner properly 

applied the law to his administrative decision regarding the date that Duncan’s 

conditional release term expires, and we affirm the district court’s denial of Duncan’s 

petition for a writ of habeas corpus.

In the alternative, Duncan argues that he is entitled to a reduction of his 

conditional release term because the district court in Washington County erred when it 

dismissed without prejudice an earlier habeas petition that Duncan had filed there. But 

 

4 We note that the legislature has since resolved any ambiguity in the statute. In 2013, 

the legislature amended the language to specifically state that conditional release begins 

“after the offender has been released from prison” and that “[a]n offender, while on 

supervised release, is not entitled to credit against the offender’s conditional release term 

for time served in confinement for a violation of release.” 2013 Minn. Laws ch. 96, §§ 3, 

5, at 744–45. The 2013 amendment, however, became effective on August 1, 2013, and 

only applies to crimes committed on or after that date. Id.
8

the current appeal is from the Chisago County district court’s order denying Duncan’s 

petition for habeas relief; the Washington County district court’s order is thus outside the 

scope of this appeal. Moreover, Duncan previously filed an appeal from the Washington 

County district court’s order with this court, which was dismissed without prejudice

because the appeal was taken from an order that was not final and not appealable. See 

State ex rel. Duncan v. Roy, No. 14-1790 (Minn. App. Nov. 5, 2014). Duncan did not 

seek further review of this court’s order and cannot now challenge or collaterally attack it 

in this appeal.

We therefore affirm the Chisago County district court’s order denying Duncan’s 

petition for a writ of habeas corpus.

Affirmed.