Toto Allan v. Johnston

1
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
PETER ISTA TOTO ALLAN, also
known as Peter Allan George,
Petitioner,
v.
NANCY JOHNSTON, Chairperson and
Chief Executive Office for the Minnesota
Sex Offender Program, et al.,
Respondent.
Case No. 26-CV-0397 (PJS/JFD)
REPORT AND RECOMMENDATION
Petitioner Peter Ista Toto Allan is an involuntary patient of the Minnesota Sex
Offender Program, and he has been for quite some time. In the petition for a writ of habeas
corpus now before the Court, Mr. Allan alleges that his civil-commitment proceedings—
which concluded in 2009—were conducted unlawfully because he was not offered the
opportunity to proceed pro se. Mr. Allan’s habeas petition is now before the Court on
preliminary review pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts. As a result of that review, this Court concludes that the
petition should be denied.
There are several problems with Mr. Allan’s habeas petition. The first is that it is
plainly, obviously untimely. Under 28 U.S.C. § 2244(d)(1),
(1) A 1-year period of limitation shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court. The limitation period shall run
from the latest of—
CASE 0:26-cv-00397-PJS-JFD Doc. 4 Filed 01/22/26 Page 1 of 5

2
(A) the date on which the judgment became final
by 	the 	conclusion 	of 	direct 	review 	or 	the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from
filing by such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the 	Supreme 	Court 	and 	made 	retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the
claim 	or 	claims 	presented 	could 	have 	been
discovered through the exercise of due diligence.
Mr. Allan’s civil-commitment proceedings concluded well over a decade ago, and the state
has never impeded Mr. Allan from bringing his claim for habeas relief previously (indeed,
Mr. Allan has been a vociferous litigant in both state and federal court throughout his time
in custody). Mr. Allan’s habeas petition can therefore be timely only if § 2244(d)(1)(C) or
§ 2244(d)(1)(D) establishes the limitations date for his petition.
Neither of those provisions applies here. Mr. Allan claims entitlement to relief
pursuant to Matter of Commitment of Benson, 12 N.W.3d 711, 721 (Minn. 2024), in which
the Minnesota Supreme Court concluded that civilly committed individuals challenging
their ongoing confinement may waive the right to counsel granted by Minn. Stat.
§ 253D.20. Because Benson is not a decision of the Supreme Court—that is, the Supreme
Court of the United States—that decision cannot act as a vehicle for invoking §
2244(d)(1)(C) as establishing a new limitations window. Nor does Benson amount to a
CASE 0:26-cv-00397-PJS-JFD Doc. 4 Filed 01/22/26 Page 2 of 5

3
“factual predicate.” See Keller v. Pringle, 867 F.3d 1072, 1075 (8th Cir. 2017) (finding that
a change in case law does not amount to a new factual predicate). Mr. Allan has not
discovered any new facts about his commitment proceedings that he did not know when
those proceedings occurred.
Second, Benson, the decision of the Minnesota Supreme Court pursuant to which
Mr. Allan seeks relief, relates entirely to a question of state law: Whether a person in civil-
commitment proceedings may waive the right to counsel supplied by § 253D.20. The crux
of Mr. Allan’s argument is that his state-law right to waive counsel was denied during his
civil-commitment proceedings, rendering the entire proceedings unlawful due to the state
courts’ misinterpretation of § 253D.20, since corrected by Benson. But a federal habeas
petitioner in state custody cannot seek relief pursuant to state law. See 28 U.S.C.
§ 2241(c)(3) (requiring that a habeas petitioner establish that he “is in custody in violation
of the Constitution or laws or treaties of the United States.”). To be entitled to habeas relief,
Mr. Allan would need to establish that his federal rights were violated during the course of
his commitment proceedings. Benson has absolutely nothing to say about that topic; the
Minnesota Supreme Court expressly avoided that issue. See Benson, 12 N.W.2d at 717-18.
The issue decided by the Minnesota Supreme Court concerned only the appropriate
interpretation of § 253D.20, a state statutory provision. The question of whether the
committing court misinterpreted § 253D.20 is simply not an issue cognizable on habeas
review.1 See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
1 Much of Mr. Allan’s petition is concerned with the question of whether Benson should
apply retroactively to cases such as his. But this, too, is a question of state law. It is entirely
CASE 0:26-cv-00397-PJS-JFD Doc. 4 Filed 01/22/26 Page 3 of 5

4
Third, habeas petitioners generally must first exhaust their claims for relief in the
state courts before seeking relief in federal court. See 28 U.S.C. § 2254(b). Mr. Allan did
present to the Minnesota courts his claim that he is entitled to relief pursuant to Benson,
but he failed as part of that process to adequately present any federal constitutional claim.
See In the Matter of Commitment of Allan, No. A25-0652, 2025 WL 2827726, at *3 (Minn.
Ct. App. Oct. 6, 2025) (“Because Allan did not present a constitutional argument to the
district court, he has forfeited the argument for purposes of this appeal.”). Mr. Allan cannot
use his state-law Benson claim to shoehorn federal-law claims that were never fairly
presented to the state courts.
For all these reasons, it is recommended that Mr. Allan’s habeas petition be
summarily denied and this case dismissed. Mr. Allan’s pending application to proceed in
forma pauperis may be denied should the recommendation of dismissal be adopted. See
Kruger v. Erickson, 77 F.3d 1071, 1074 n.3 (8th Cir. 1996) (per curiam). Finally, because
the basis upon which dismissal is recommended is not fairly debatable among reasonable
jurists, the Court further recommends that a certificate of appealability not be issued in this
matter. See 28 U.S.C. § 2253(c)(1)(A).
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT
IS HEREBY RECOMMENDED THAT:
the province of the state courts to determine the extent to which a Minnesota Supreme
Court decision resolving a question of Minnesota statutory interpretation should be made
retroactive to earlier proceedings conducted in the Minnesota state courts.
CASE 0:26-cv-00397-PJS-JFD Doc. 4 Filed 01/22/26 Page 4 of 5

5
1. 	The petition for a writ of habeas corpus of petitioner Peter Ista Toto Allan
[Dkt. No. 1] be DENIED.
2. 	This matter be DISMISSED.
3. 	Mr. Allan’s application to proceed in forma pauperis [Dkt. No. 2] be
DENIED.
4. 	No certificate of appealability be issued.
Date: January 20, 2026 	s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations within 14 days
after being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
CASE 0:26-cv-00397-PJS-JFD Doc. 4 Filed 01/22/26 Page 5 of 5